By MICHAEL FOREMAN
A computer hacking prosecution has stopped in its tracks after two justices of the peace declared a potential conflict of interest nearly four months after proceedings began.
The case involves the alleged hacking of at least 19 personal computers to yield the account details of Internet users. It has been seen as an important test case to establish whether existing laws cover online crime.
Ministry of Justice officials are at present drafting new anti-hacking laws.
Pakuranga-based former Internet entrepreneur Andrew Charles Garrett, aged 32, is facing 14 charges of using a document, two of forgery and one of threatening property.
The Crown alleges that Garrett used a "Trojan Horse" program called Back Orifice to discover passwords and other personal details that would allow him to use Internet accounts belonging to his victims. It is further alleged that he sent a message to one Telecom Xtra user threatening to destroy a computer unless the user switched to another Internet service provider.
The depositions hearing to determine whether Garrett had a case to answer began on February 14 in the Otahuhu District Court and was due to finish tomorrow.
But JPs Ivan Tabor and Philippa Hull told the court on Tuesday that they would consider standing down from the hearing on the grounds that they were both Telecom shareholders.
Many of the witnesses are customers of Telecom-owned Xtra, and it is understood that much of the prosecution evidence was supplied by Telecom from its investigation into the affair.
Yesterday, after hearing submissions from the prosecution and the defence, Justice Tabor adjourned the hearing, which will now be reheard by different JPs on September 18.
Crown prosecutor Helen Gilbert argued that the JPs had no need to stand down as no actual or potential conflict of interest had been established and a theoretical conflict was "not good enough."
Furthermore, she submitted that Telecom was not the complainant in the case - the individual computer users were.
Ms Gilbert also believed that the fact that the justices' shareholding had not been disclosed until "halfway through the depositions" showed it was "back in the far reaches" of their minds.
She added that there were 50,000 individual Telecom shareholders and up to one million New Zealanders had an interest of some kind in the company.
"The mere fact that you have some shares in Telecom won't affect your impartiality."
Ms Gilbert said that the public interest in terms of the cost of the hearing so far should also be considered. At least 15 witnesses, some of whom had flown from Wellington and Christchurch at taxpayer expense, would have to be recalled.
But defence lawyer Barry Hart said the legal principle was whether a reasonable suspicion of bias existed.
"Imagine an objective bystander - would they think it's right?"
Mr Hart also pointed out that most of the prosecution evidence had come from Telecom employees, and that Telecom had effectively become the complainant.
"This all began with a dispute between Telecom and the defendant."
Justice Tabor said before announcing his ruling: "To us it is quite simple the approach we should take, and that is the public interest."
He observed that press coverage had repeatedly centred on the defendant and Telecom.
"In the public mind, it is Telecom that is the complainant. We must be sure that the public will see that the defendant has had a fair go."
Justice Tabor then asked the defendant directly whether he consented to the two JPs continuing to hear the case.
When Garrett replied that he did not, Justice Tabor said he had no choice but to adjourn the hearing.
A staff member of Associate Justice Minister Paul Swain said that a supplementary order paper to the Crimes Amendment Bill No 6 was being drafted. It would strengthen anti-hacking legislation, but there was no indication when it would become law.
JPs' shareholdings abort hacking prosecution
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