'Phreaker' awaits Appeal Court judgment

By CHRIS BARTON

The wheels of justice are grinding slowly towards a conclusion for "phreaker" Borislav Misic, who appealed against his fraud and forgery convictions in the High Court last Tuesday and awaits a decision.

Counsel for Misic, Paul Trehey, was successful in getting the Court of Appeal to hear the case, which was "out of time" of the normal appeals process, on the grounds that the July 1999 convictions would affect Misic's prospects for residency.

Misic arrived in New Zealand in April 1998 from Yugoslavia and a year later was granted refugee status. He was convicted on two counts of fraud and one count of forgery involving the use of a piece of "blue boxing" software to make 80,000 minutes of international calls using Telecom's Home Country Direct service. The process is known as phreaking - the "cracking" or hacking of Telecom's phone network. Misic was sentenced on all three counts to 12 months' prison, suspended for two years, and six months' PD, which he has served.

Mr Trehey argued that trial judge Roderick Joyce was incorrect in allowing the term "document" to include a piece of computer software. He argued that while the Crimes Act was amended in 1974 to increase penalties related to the obtaining and use of "documents" such as airline tickets or credit cards to commit fraud, the definition of document for these charges was not changed. He said the omission was all the more significant because at the same time the definition for forgery charges was extended to include information and data stored on a "disc."

The act is again before a select committee for amendments to cover a wide range of computer misuse, including using a computer for dishonest purpose, to cause damage and to gain unauthorised access, also known as "hacking."

Simon France, for the Crown, argued that the ordinary meaning of document - a thing which conveys information - encompasses software. Regarding the fraud charges, he pointed to the meaning in Section 229A which says " ... takes or obtains any document that is capable of being used to obtain any privilege, benefit or pecuniary advantage ... "

He said that the purpose of Section 229A was to introduce a broad, flexible offence and there was nothing to suggest it should have a specialised, limited definition of document. Mr France raised also the principle that when ambiguity comes up, a statute should be read "as always speaking."

Justices Blanchard, Anderson and Paterson reserved their decision.