But on 20 September 1995, the judge showed he couldn't be predicted quite so easily. Taking everything into account, including Prime Suspect's sentence and Trax's history of mental illness, he ordered no conviction be recorded against Trax. He also ordered a $500 three-year good behaviour bond.
In passing sentence, Judge Kimm said something startlingly insightful for a judge with little intimate knowledge of the hacker psyche. While sternly stating that he did not intend to make light of the gravity of the offences, he told the court that `the factors of specific deterrence and general deterrence have little importance in the determination of the sentence to be imposed'. It was perhaps the first time an Australian judge had recognised that deterrence had little relevance at the point of collision between hacking and mental illness.
Trax's sentence was also a good outcome for Mendax, who on 29 August 1995 pleaded guilty to eight counts of computer crime, and not guilty to all the other charges. Almost a year later, on 9 May 1996, he pleaded guilty to an additional eleven charges, and not guilty to six. The prosecution dropped all the other charges.
Mendax wanted to fight those six outstanding charges, which involved ANU, RMIT, NorTel and Telecom, because he felt that the law was on his side in these instances. In fact, the law was fundamentally unclear when it came to those charges. So much so that the DPP and the defence agreed to take issues relating to those charges in a case stated to the Supreme Court of Victoria.
In a case stated, both sides ask the Supreme Court to make a ruling not on the court case itself, but on a point of law. The defence and the prosecution hammer out an agreed statement about the facts of the case and, in essence, ask the Supreme Court judges to use that statement as a sort of case study. The resulting ruling is meant to clarify the finer points of the law not only for the specific case, but for similar cases which appear in future.
Presenting a case stated to the Supreme Court is somewhat uncommon. It is unusual to find a court case where both sides can agree on enough of the facts, but Mendax's hacking charges presented the perfect case and the questions which would be put to the Victorian Supreme Court in late 1996 were crucial for all future hacking cases in Australia. What did it mean `to obtain access' to a computer? Did someone obtain access if he or she got in without using a password? What if he or she used the username `guest' and the password `guest'?
Perhaps the most crucial question of all was this: does a person `obtain access' to data stored in a computer if he or she has the ability to view the data, but does not in fact view or even attempt to view that data?
A good example of this applied to the aggravated versions of the offence of hacking: viewing commercial information. If, for example, Mendax logged into a NorTel computer, which contained commercially sensitive information, but he didn't actually read any of those files, would he be guilty of `obtaining access' or `obtaining access to commercial information'?
The chief judge of the County Court agreed to the case stated and sent it up to the full bench of the Supreme Court. The lawyers from both sides were pleased with the bench—Justices Frank Vincent, Kenneth Hayne and John Coldrey.
On 30 September 1996, Mendax arrived at the Supreme Court and found all the lawyers assembled at the court—all except for his barrister. Paul Galbally kept checking his watch as the prosecution lawyers began unpacking their mountains of paper—the fruit of months of preparation. Galbally paced the plush carpet of the Supreme Court anteroom. Still no barrister.