The state will always be at a disadvantage in prosecuting Internet-related crimes, especially if the accused use novel defences that involve technical issues, says e-lawyer Steven Ferguson.
Ferguson was commenting after a UK jury found teenager Aaron Caffrey not guilty on charges under the country`s Computer Misuse Act, after he raised the defence that his computer was taken over by a Trojan-type program.
The charges against the UK teen relate to an attack on the Port of Houston`s NT servers on 21 September 2001. The prosecution alleged that it was part of a misdirected attack by Caffrey against another user of an Internet chat room - apparently a South African called "bokkie" who made anti-US comments following the 11 September terror attacks.
Caffrey`s case is reportedly the first case decided by a jury in terms of the UK`s Computer Misuse Act. The British jury found Caffrey innocent despite expert witness that there were no signs of a Trojan on his computer. This was one of three UK cases this year using the Trojan defence and all three have succeeded. The other two cases related to child pornography.
"I am surprised that the jury found him innocent, but it just shows how difficult it is to prove a case, especially if the defence raises strong technical issues," Ferguson says.
He says the success of this defence increases the chances of it being used by others accused of similar crimes on the Internet, which could be especially worrying for SA, which is only now beginning to see the prosecution of alleged hack attacks.
In one such case - the high profile Absa hacker case - the accused, Johannes Jacobus Fourie, indicated in his bail application that he would plead innocent, although the exact nature of his defence was not made public. Fourie is accused of 55 counts of fraud totalling about R690 000 committed against 10 Absa Internet banking clients.
One big difference between SA and the UK is that there is no jury system in this country and it is generally thought that judges are more inclined to look at the legal merits of a case, unlike a jury that can be swayed by a clever defence.
"Here, one cannot just raise a defence and leave it at that. One has to prove that the defence is reasonable," Ferguson says.
He says that in such cases, where the defence rests on highly technical issues, the testimony of the expert witnesses will become ever more important.
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