The right to Windows Vista

So, we now have a judgment on when remandees have a right to the installation Microsoft’s infamous Windows Vista. No joke.

The right to a fair trial has certainly come a long way in the last fifteen years. In 1992 – in a case whose name mysteriously eludes me – the High Court first held that a trial will typically be unfair if a defendant facing serious charges is unrepresented through no fault of his or her own. More recently, attention has turned to the ability of defendants – especially remandees – to advise their lawyers about their case. As discussed on this blog, the defendants in Melbourne’s terror trial got dramatic changes to their remand conditions to ensure that they were physically and emotionally capable of following and advising their lawyers on their own complex trial.

But what about the nitty-gritty of advising a lawyer, which involves more than just having a lawyer and time to think? The farsighted drafters of the ICCPR recognised this when they drafted Article 14.3(b), which is replicated in Charter s. 25(2)(b):

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-

…(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her…

The ICCPR drafters probably had in mind a table, paper and a biro, and perhaps some peace and quiet. But these days, the key to both preparation and communication is a computer. Corrections Victoria recognises this and a Commissioner’s Requirement from 2004 regulates the provision of in-cell computers:

Prisoner access to their own “in cell” computer equipment is a privilege. Access may therefore be removed where a prisoner is found guilty of a prison offence and loss of privileges is imposed. Access is also subject to a prisoner’s use of their ‘in cell” computer in a manner which does not prejudice the security or good order of the prison, as determined by the prison manager, and their compliance with the behavioural requirements for computer access.

Where a prisoner is actively preparing for an imminent court case, withdrawal of the computer as a privilege should not be done without consideration of the effect on their preparation. In these circumstances the Prison Manager should consider other options such as making available use of an alternative computer that the prisoner can access during out of cell hours.

Hugo Alistair Rich’s litigation in October last year, mentioned last post, was about his loss of his in-cell computer (removed due to his alleged possession of a contraband wireless dongle) and he lost when Mandie J made the surprising finding that in-cell computers aren’t a privilege for the purposes of the Corrections Act 1996.

Anyway, now Rich has his in-cell computer back, but, like all folks dependent on the largess of the IT department, he’s angling for some better specs. His main claim (based on the common law, not the Charter) in R v Rich (Ruling No 2) [2008] VSC 141 is to have Windows Vista installed:

In the application before me the accused gave evidence that when police raided his premises in connection with this matter they removed computers. As I understood his evidence, due to a prior visit by police he had felt it necessary to remove the hard drives from his computers and put them in a safe place. The data from those drives was transferred to two hard drives and this collection of data was described during the course of the application as the “police exhibit computer”.

In addition, he says there are three other computer drives which contain data relevant to his defence in the forthcoming trial. All computer drives are required to be reconstituted because the data has been encrypted.

In relation to what is referred to as the “police exhibit computer”, the accused claims that access is not possible at present because in attempting to access it in the past the registry file had demonstrated that it had been in some way corrupted or adversely affected. As I follow it, that has had an effect on the operating system on that drive as well as the drive itself as a piece of hardware. The accused said in his evidence that a “dialogue box” was displayed when access was attempted and demonstrated, according to him, that the problem was “inherently a registry problem”. A new and modern operating system would fix the problem. The new and modern operating system he has in mind in giving that evidence is the program known as Windows Vista.

Rich’s lawyer backed him up on the potential relevance of the drives to Rich’s defence, as they may support a contrary argument concerning his finances – no need to rob a bank? – and even an alibi (despite him not complying with the legal requirements to file such an alibi.) Rich’s lawyer also swore ‘that the data on these hard drives is encrypted and can only be reconstituted by the accused because the necessary specialist knowledge is reposed in him and that an “outside” expert could not reconstitute them given the nature of the encryption.’ And, finally, Rich’s lawyer endorsed the utility of his own client to the defence’s legal preparation, noting that there is currently a dispute with Victoria Legal Aid about the adequacy of funding and Rich’s obvious analytical skills. Indeed, Rich’s lawyer submitted that, if Rich’s application failed, then Rich would withdraw his instructions (a move that would certainly sharpen his claim that his own resources were crucial to his defence.)

Alrighty. This is clearly going to be quite a trial. But the bit that doesn’t really make sense to me is… Windows Vista? Rich was arrested in 2005 before Vista even came out. How does he know that Vista will solve his ‘dialogue box’ problem? And has he heard about the mixed reviews that Vista has been getting? Admittedly, Rich’s approach to solving pesky hardware problems – reinstalling the operating system, in its latest version – is exactly the one I use. But I can say from sad experience that this is a quite a hit-or-miss solution, with an emphasis on the miss.

Anyway, the problem is now Lasry J’s and he faced the difficulty that Rich was the resident expert on the problem with his own hard drives. Corrections Victoria’s computer expert – is being the IT guy in prison a good job? Do they use inmates? – was skeptical like me, but wasn’t wiling to outright disagree with Rich. So:

Ultimately, I am left with the evidence of the accused and his solicitor which is not contradicted. That means that the accused is preparing for his trial without access to material with which he is familiar and which he and his solicitor claim is relevant to his defence. At this stage I am not willing to make an assessment of the degree of importance of the material but rely on the evidence given by both. I do not think such an assessment is necessary. The data is available – the question is how it is to be retrieved. The position of Corrections is that they will assist the accused in reconstituting the data where they can, but he needs to be in a secure area so that nothing which is on an encrypted data drive can get back into the mainstream of the prison.

So far as how this work is to be done is concerned, I am not able to expertly assess the assertion of the accused that Windows Vista is the most effective way of accessing the hard drives he needs to access. At present, I am unable to see why arrangements could not be made for that software to be used as the accused requests. However this is to be done, I have come to the conclusion that unless the accused is given a reasonable opportunity to retrieve the data from these hard disk drives to which he has referred in his evidence so as to enable that data to be assessed by him, his solicitor and counsel in the course of preparing the defence, there is a risk that the trial of the accused might be unfair.

And there it is: in these (admittedly narrow) circumstances, remandees have a right to Windows Vista. But, of course, the judgment leaves crucial questions unresolved. Is Rich’s computer ‘Vista Ready’ or merely ‘Vista Capable’? What version will Rich get? Surely not Home Basic! And what about all those problems with printer drivers? Stayed tuned.

By the way, the judgment was not confined to Windows Vista. Rich also sought the following hardware and software:

  • Filemaker Pro 8.5
  • a laptop (for ease of transfer in and out of court)
  • Pinnacle Studio Plus (allegedly ideal for the ‘presentation’ of the 2900 hours of visual and audio material, mostly telephone intercepts that the prosecution says it won’t be using)
  • a scanner and appropriate software (for placing new document in his computer system)
  • a colour printer (to facilitate Rich’s colour-coded document management scheme)
  • AutoDesk 3D Studio Max (to create crime scene visual aid material)
  • Shareware CAD and Modelling Software (to enhance photographs, audio and video)
  • Norton System Works (to prevent data loss)
  • an external harddrive (to provide his counsel with instructions hyperlinked to his document database)

That’s quite a list. I wonder if he had all these details coded into an all-body tattoo?

Justice Lasry was surprisingly sympathetic to these requests and skeptical about Corrections Victoria’s security concerns. For the most part, though, he restricted his orders to warning Corrections Victoria that Rich’s needs (if not his precise IT requirements) must be met or there’s a risk that the trial will be permanently stayed. In some instances, Lasry J felt that Corrections Victoria’s alternative proposals (a scanning service, a big USB drive) would be good enough. However, Rich will, it seems, get Filemaker Pro 8.5 and Pinnacle Studio Plus installed on his computer.

Now, how can I use this case to get Melbourne Law School to upgrade me to Office 2007?

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