Legal definition on hacking case

By PETER GRIFFIN technology writer

Borislav Misic's failed Court of Appeal bid to overturn his two-year-old convictions for fraudulently using a computer program is likely to set the scene for other high-profile hacking cases.

The Appeal Court case, in which Mr Misic disputed the definition of a computer hacking program as a "document" in his original trial, could weigh heavily on the result of a similar long-running hacking case which goes before the court in July.

Alleged hacker Andrew Garrett, who earlier appeared before the Otahuhu District Court, faces trial on 12 fraud charges involving the copying of passwords from customers of internet service provider Telecom Xtra.

The Misic appeal is significant to Mr Garrett's position because the charges against him hinge on whether a program and passwords fit the legal definition of "document."

The definition was so crucial to Mr Garrett's case that Judge David Harvey, who presided over the pre-trial hearing held in February, decided to defer his ruling on whether a computer password and program could be classed as a document until the Misic appeal was heard.

Mr Garrett's lawyer, Michael Levett, said he was disappointed with the Court of Appeal decision, which had done little to help his own client's case.

A sizeable part of Mr Garrett's defence rested on the argument that under the Crimes Act in its present form, and in particular section 229A, a computer program or password could not be legally defined as a "document."

Law Commissioner Paul Heath, QC, said the Appeal Court judgment was an encouraging sign that the court was taking a realistic approach to the interpretation of legislation in this area, but changes to the law reflecting advances in technology were still needed.

"We think it's better to have legislation that avoids the possibility of some judges taking one view and other judges taking a different view."

The Appeal Court judgment delivered by Justice Noel Anderson pointed out that Mr Misic's defence had chosen to argue over the wording definitions, skirting the technology issues involved.

Mr Heath said that technical characteristics would need to play a more important part in cases of a similar nature in future.

"In [the Law Commission's] original report we said we were looking for a more 'function' based approach rather than a linguistic approach which was made in the Court of Appeal."

The Crimes Amendment Bill No 6 is before Parliament's law and order select committee.

Breon Gravatt, a solicitor at Baldwin Shelston Waters, said the Appeal Court decision could have much wider relevance than just the area of electronic fraud.

Judge Harvey is expected to rule on the definition of "document" in June.

Full text of the judgment: Crown v Borislav Misic