DPP v Williams [1998] VSC 119

2. Within three hours after driving or being in charge of a motor vehicle, furnishing a sample of breath for analysis by a breath analysing instrument under s. 55(1) of the Road Safety Act 1986 and the result of the analysis recorded or shown by the breath analysing instrument indicated more than the prescribed concentration of alcohol was present in her blood contrary to s. 49(1)(f) of the Road Safety Act 1986.

8. Evidence was given for the prosecution by the informant, Constable Brian Matthew Smith, and a Senior Constable John Bateman, who was a person authorised to operate a breath analysing instrument.

11. It appears that at about 12.29 am on 22 June 1997 the informant and Senior Constable Bateman were on duty. They intercepted the respondent driving a motor vehicle in Heidelberg - Kinglake Road, St. Andrews. The informant conducted a preliminary breath test on the respondent. It indicated the presence of alcohol in the respondent's blood. The informant then said to the respondent:

"In my opinion the result of the test indicates the presence of alcohol in your blood. I now require you to accompany me to the rear of the police vehicle and remain there for a period of not more than three hours and to supply a sample of your breath for analysis."

16. Inside the vehicle, and in response to the informant's questions, the respondent stated that she had consumed two standard champagne glasses of champagne at 10.00 pm and 10.30 pm but did not know when she finished the second glass. She said that she had been on medication that day taking one Mersyndol tablet at 8.30 am, one Stematil tablet at 10.00 am and one Mersyndol at 10.30 am.

19. The respondent was introduced to Senior Constable Bateman and gave him the same information about the consumption of alcohol and medication. The informant then told the respondent that he required her to undergo a breath test pursuant to s. 55 of the Road Safety Act 1986. At 12.55 am, she blew into the mouth-piece of a breath analysing instrument operated by Senior Constable Bateman. It produced a reading of "0.093 grams of alcohol per 100 millilitres of blood". Evidence was then given of the printing of certificates, their signature and service on the respondent. The respondent was cautioned by Senior Constable Bateman. He asked her if she had any comment to make on the fact that the analysis showed that she had a blood alcohol concentration of 0.093%. She replied:

"I know what I've, I've done, I've had two glasses of champagne and I know I shouldn't have had the champagne with medication".

In the course of cross-examination by counsel for the respondent, both police witnesses conceded that they had not been set up as a random breath testing station and confirmed that the breath test had been conducted in a marked police car. The prosecution case then closed.

24. Counsel for the respondent then made a "no-case" submission. He referred the learned Magistrate to s. 55(1) Road Safety Act 1986 and in particular the portions which empower a member of the police force to demand that a person accompany them to a police station or other place for the purposes of breath testing. He then submitted that the term "or other place" as it is used in s. 55(1) Road Safety Act 1986 should be read ejusdem generis with the preceding term "police station". He submitted that there was no power to demand that a person accompany a member of the police force to a police vehicle for the purpose of a breath test and that, therefore, the demand was unlawful and the evidence of the breath test should be excluded.

27. The prosecuting officer submitted that the ejusdem generis rule did not apply because there must be at least two specific terms followed by a general term. He cited D.J. Gifford "How to Understand an Act of Parliament", 8th Ed, Law Book Company 1994 at p. 132. He further submitted that the term "or other place" is a general term and is intended to be so read. He cited O'Toole v Bennett [1917] VicLawRp 57; (1917) V.L.R. 351. He submitted that the section had been amended by the Road Safety (Miscellaneous Amendments) Act 1989 to include the term "or other place" and this phrase should be given its normal everyday meaning. He referred to the second reading speech (Hansard, Legislative Assembly, vol. 392 at p.508) in relation to that amendment where it was stated that the section was broadened to take account of the way in which "booze buses" operate. He said that the term "booze bus" is not defined in the legislation and common-sense would dictate that any mobile vehicle with the capacity to conduct breath tests could be called a "booze bus". He further submitted that it was common practice for the Victorian police to conduct tests in vehicles where the facility was available particularly when an offender was intercepted a considerable distance from a police station and that taking offenders to a police station would deprive offenders of their liberty for an unreasonably long period.

30. The learned Magistrate upheld the submission made on behalf of the respondent and gave the following reasons. He said that breath tests should be conducted in privacy both for the welfare of the defendant and police members. He stated that it was obvious that Parliament had in amending section 55(1) intended to broaden the places where breath tests could be conducted but it was his opinion that it had never been intended to include a police car in the class of suitable places. He said that the reference to "booze buses" in Hansard indicated that the place need not have a permanent structure but must have the appearance of serving the purpose of being an official breath testing station by displaying appropriate lights and signs. The learned Magistrate dismissed the charges and ordered the Chief Commissioner of Police to pay costs in the sum of $4,500.

34. In the order giving directions in this Appeal the following questions of law were identified as being raised by the appeal.

"1.1 Whether or not for the purposes of Section 55(1) of the Road Safety Act 1986 the expression `or other place' includes

(a) a police motor car; or

(b) a motor car

which is in the vicinity of the place where a requirement pursuant to the said section is made?

1.2 Whether or not a requirement made pursuant to Section 55(1) of the Road Safety Act 1986 that a person accompany a member of the Police Force to:

(a) a police motor car; or

(b) a motor car

which is in the vicinity of the place where a requirement is made is lawful?

1.3 Whether or not evidence of the taking of a sample of breath and the analysis of such sample pursuant to Section 55 of the Road Safety Act 1986 should be excluded on the ground that the sample was unlawfully obtained solely because the sample was taken and the analysis made in:

(a) a police motor car; or

(b) a motor car

following a requirement made pursuant to the said section?

1.4 Whether or not there is any requirement that samples of breath furnished pursuant to Section 55 of the Road Safety Act 1986 be furnished in circumstances affording the greatest practicable privacy?

1.5 Whether any reasonable Magistrate could have failed to be satisfied that there was a case to answer in respect of the charges under Section 49(1)(b) and 49(1)(f) of the Road Act 1986?"

42. The relevant provisions from the Road Safety Act 1986 are as follows:

"49 Offences involving alcohol or other drugs

(1) A person is guilty of an offence if he or she -

(b) drives a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood; or

...

(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55(1) and -

(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her blood; and

(ii) the concentration of alcohol indicated by the analysis to be present in his or her blood was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; or

(1) A member of the police force may at any time require -

(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or

...

(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or

...

to undergo a preliminary breath test by a prescribed device.

...

(3) A person required to undergo a preliminary breath test must do so by exhaling continuously into the device to the satisfaction of the member of the police force or the officer of the Corporation or of the Department of Transport.

...

(1) If a person undergoes a preliminary breath test when required by a member of the police force or an officer of the Corporation or of the Department of Transport under section 53 to do so and -

(a) the test in the opinion of the member or officer in whose presence it is made indicates that the person's blood contains alcohol; or

(b) the person, in the opinion of the member or officer, refuses or fails to carry out the test in the manner specified in section 53(3) -

any member of the police force or, if the requirement for the preliminary breath test was made by an officer of the Corporation, any member of the police force or any officer of the Corporation or of the Department of Transport may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force or an officer of the Corporation or of the Department of Transport authorised in writing by the Corporation or the Secretary of the Department of Transport, as the case requires, for the purposes of section 53 to a police station or other place where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and been given the certificate referred to in sub-section (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.

(2) A member of the police force may require any person whom that member reasonably believes to have offended against section 49(1)(a) or (b) to furnish a sample of breath for analysis by a breath analysing instrument (instead of undergoing a preliminary breath test in accordance with section 53) and for that purpose may further require the person to accompany a member of the police force to a police station or other place where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and been given the certificate referred to in sub-section (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.

(3) A breath analysing instrument must be operated by a person authorised to do so by the Chief Commissioner of Police.

(1) If the question whether any person was or was not at any time under the influence of intoxicating liquor or if the question as to the presence or the concentration of alcohol in the blood of any person at any time or if a result of a breath analysis is relevant -

...

(c) on a hearing for an offence against section 49(1) of this Act -

then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the concentration of alcohol indicated to be present in the blood of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 55 and the concentration of alcohol so indicated is, subject to compliance with section 55(4), evidence of the concentration of alcohol present in the blood of that person at the time his or her breath is analysed by the instrument.

(4) Evidence by a person authorised to operate a breath analysing instrument under section 55 -

(a) that an apparatus used by him or her on any occasion under that section was a breath analysing instrument within the meaning of this Part;

(b) that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her;

(c) that, in relation to the breath analysing instrument, all regulations made under this Part with respect to breath analysing instruments were complied with -

is, in the absence of evidence to the contrary, proof of those facts."

62. Counsel for the respondent has made preliminary submissions concerning the above questions. He submitted, firstly, that in the first three questions the reference to the issue whether the expression "or other place" includes a "motor car" raises a question that did not arise from the learned Magistrate's decision. In my view, this is correct although the question of construction may be tested by reference to motor vehicles other than police motor cars. He next submitted that the question stated in question 1.4 did not arise in that it was not part of the Magistrate's reasoning that s.55 required the furnishing of samples of breath in circumstances affording the greatest practicable privacy. In my view, this too is correct in that, while His Worship referred to privacy as a policy issue underlying and supporting his construction, he did not in terms say the section required privacy for breath testing. Counsel further submitted that question 1.5 did not arise. Counsel for the appellant indicated that he did not rely upon any argument in addition to that which was raised by the first three questions and accordingly that, strictly speaking, that question is superfluous.

65. As to the third question, it raises an issue as to whether evidence of the breath analysis should be excluded on the grounds that it was unlawfully obtained. Counsel for the appellant sought to pursue this matter. The argument advanced below for the defendant was that the demand made by the police was unlawful and that evidence of the breath test should be excluded. Objection was not taken, however, to the admissibility of the evidence when it was adduced and it is common ground that what occurred at the conclusion of the prosecution case was that counsel for the defendant made a no case submission. In all the circumstances, I am satisfied that the issue of admissibility of the evidence did not arise in the proceedings. Rather, the issue whether or not the expression "or other place" applied to a police motor vehicle arose in the context of whether an offence had been committed.

68. In light of the above I propose to deal with this appeal on the basis that the questions to be answered are questions 1.1 (a) and 1.2(a).

72. Counsel for the respondent made submissions about the elements of s.55(1) constituting part of the elements of the offence referred to in s.49 (1)(f) and s.49(1)(b). He referred to the decision of Ormiston J, (as he then was) in DPP v. Webb [1993] VicRp 82; [1993] 2 VR 403 and the unreported decision of Hedigan J, in DPP v. Constantinou (19 December 1997). Counsel for the appellant did not place argument before me to challenge the submissions put. I proceed therefore on the basis that the prosecution, to succeed in charges brought under both s.49 (1)(b) & (f), must establish compliance with s.55(1) of the Act.

75. Counsel for the appellant drew my attention to the fact that breathalyser machines are now carried in approximately 25 police patrol vehicles. To facilitate the use of this equipment, more police officers have been qualified by training to operate the equipment. I have also been informed that a number of prosecutions have been adjourned pending the outcome of this appeal.

78. Counsel for the appellant submitted that the learned Magistrate was in error in applying the ejusdem generis rule in interpreting the words "other place". This would appear to be a correct submission in that there is not a reference to two or more specifics before the general expression "other place" (R v. Perry (No. 3) (1981) 28 SASR 112, 116, Quazi v. Quazi [1980] AC 744, 807-8, Allen v. Emmerson (1944) 1 KB 62, Gifford Statutory Interpretation (1990) p.70 et seq, Pearce and Geddes Statutory Interpretation Australia 4th ed. Para [4.8]). Counsel referred to the cases of Plummer and Adams v. Needham (1954) 56 WALR 1, Lake Macquarie Shire Council v. Ades [1977] 1 NSWLR 126 where the phrase "building or place" was considered. He submitted that "place" was not read down in those cases. In those cases, the word "place" was treated as an alternative to building. The Courts in those cases construed the expression to mean a "more or less definite position where business activities are localised though possibly in a wider open space". (Plummer at 5). A roof, however, was not required. These cases, however, do not assist the appellant because the phrases in question did not include the word "other". The inclusion of that word in the Act indicates that the drafter regarded a police station as a place for the purpose of the section and, therefore, was treating the word "place" as having some sort of similarity with a police station. While "other" implies something additional (Erle, C.J., Ayrton v. Abbott 14 QB 17), it also points to "some relation between the classes of things" (North, J., Re Miller 61 LT 397).

81. Counsel then drew my attention to the statement in the second reading speech (Legislative Assembly, 3 Nov 1988, 508) which explained that the words "grounds or precincts" had been replaced by "other place" to "take account of the way in which booze buses operate".

84. He submitted that the Interpretation of Legislation Act 1984 requires the interpretation to be adopted which promotes the purpose of the legislation and further submitted that that purpose would best be served with a wide interpretation so that the words "other place" were not read down in any way and were interpreted literally to mean in effect "any place". He indicated that he did not, as the prosecuting officer had below, rely upon the case "O'Toole v. Bennett (above)." He argued that a very large number of people submit to breath analysis each year and that it greatly reduces the inconvenience, particularly for the innocent, if breath analysis can be done on the spot.

87. Counsel for the respondent referred to the changes that have occurred in the relevant legislation over time. The original provisions were to be found in s.408A of the Crimes Act 1958 s. 408A (4) (b). They required a person to furnish a sample of breath "at or in the vicinity of the place where he was driving ... or at the police station nearest to that place". In Minter-Lane v. Kercher [1968] VicRp 71; (1968) VR 552, Newton J, held that the expression "at the police station" did not extend to a motor car parked at the kerb outside the nearest police station. As a result of that decision the relevant legislation was amended to refer to "police station ... or grounds or precincts thereof". (Act No. 7782. s.2). A provision was also inserted to afford some privacy to the testing done within the grounds or precincts of a police station (s.408A (4)(c)). Subsequently, the provisions were placed in the Motor Car Act 1958 - in particular s.80F(6),(8) and (11)(a). The privacy provision was repeated in s.80F(10). The legislation appeared to continue to permit the police officer to require the suspect to submit to a breath test at the vicinity of the place where the driving occurred (s.80F(8)). These provisions were considered in Bolton v. Glover (unreported, Tadgell, J., (as he then was) 27 August 1986). The head note is reported at 1986 MVR 463. His Honour referred in that case to the intention to afford a measure of privacy to both the police and the person tested but only where testing was done in the grounds or precincts of the nearest police station. The privacy protection did not apply at or in the vicinity of the place of the driving or at the police station. Subsequently the provisions, but not the privacy provision, were placed in the Road Safety Act (above).

90. Turning to the critical phrase, counsel referred to the discussion by Lord Diplock in Quazi (above at 808) where His Lordship considered a phrase of a similar structure to that in question.

"The fact that the ejusdem generis rule is not applicable does not, however, necessarily mean that where the expression "other" appears in a statute preceded by only one expression of greater specificity its generality may not be cut down if to give it its wide prima facie meaning would lead to results that would be contrary to the manifest policy of the Act looked at as a whole, or would conflict with the evident purpose for which it was enacted."

He submitted that the words "or other" confine "place" to locations like a police station. He submitted that the phrase "other place" is coloured by that which precedes it. He submitted that as a result "other place" requires a permanent, stable structure fixed to the ground. He said it must be clearly identified and identifiable with the police. It must be definite or set. It also requires a structure of some space including rooms.

95. His primary submission, therefore, was that "other place" does not in terms apply to a "booze bus". Alternatively, bearing in mind what was said in the second reading speech, he submitted that what is required is something large and capable of being set in place by reason of its size and content. He submitted that the interpretation advanced by the appellant required reading the phrase "or other place" as meaning "a place". He submits that the phrase "police station or other place" must be given work to do and if the phrase "or other place" is interpreted to mean "a place" it applies to any place and the phrase in the legislation is superfluous. He submitted further that we are concerned here with a penal statute which should be construed strictly. He submitted that the legislation authorises intrusions into the lives of people going about their business. He submitted that it is, therefore, unreasonable to permit people to be detained on dark nights in lonely places in police cars by a number of officers. He argued that there are real protections and advantages to the citizen to be taken to the police station where other people are present and, in particular, other officers to whom complaints can be made. As to the "booze bus", it is usually well lit, in a prominent position with a large number of police in attendance. Counsel also pointed out that under s 55 (1) a person is required to remain at the police station or other place until the sample has been furnished and a certificate given to that person or until three hours have elapsed after driving whichever happens the sooner. He argued that it could not have been intended that the person giving the sample of breath might be required to remain in the back seat of the police car for three hours. He submitted that the intention was that the suspect could be detained in the police station or a mobile police station like a "Booze Bus" or some structure of some stability and permanence which would provide the facilities associated with a police station.

98. Counsel for the respondent also attempted to mount an argument based on the need to imply a requirement of reasonableness in the legislation. Counsel relied on DPP v Webb (above) which dealt with s.53. In my view, implying a requirement of reasonableness does not supply a basis to resolve the issues in this case.

101. In construing the provisions, it must be remembered that they are privative provisions which require persons to provide evidence incriminating them. They involve a curtailment of citizens' rights and immunities. They should therefore be construed in favour of a defendant to the extent of any ambiguity, (Scott v. Dunstone [1963] VicRp 77; [1963] VR 579, 580-1, cited by Tadgell, J. (as he then was) in Bolton v. Glover, above at 7; see also R v Coco (1993 - 4) [1994] HCA 15; 179 CLR 427).

104. The word "place" has been considered in a variety of contexts. It has been given a broad construction in the area of industrial safety (Ganion v. Roche Products Ltd 1995 SLT 38, 39). It has been narrowly construed in legislation authorising the issue of search warrants to require "a part of space of definite situation" and held not to include a motor vehicle (Coward & Ors v. Allen & Ors [1984] FCA 53; (1984) 52 ALR 320. In legislation controlling betting or retail trading, a degree of permanence has been required. Thus in retail trading legislation, the boot of a car has been held not to be a "place" unless it is used on a regular basis in the same location. (Maby & Others v. Warwick Corporation [1972] 2QB 212, 247; Jarmain v. Weatherall (1977) 75 LGR 537; Palmer v Bugler (1988) 87 LGR 382.

107. The expression "other place" must be construed in its legislative context and to serve the purposes of the legislation. To apply the phrase "other place" to a police car, however, requires "other place" to mean "any place" and renders the reference to "police station" superfluous. Parliament did not use the expression "any place". It could easily have done so if that was its intention. Parliament intended that the phrase "or other place" should limit the operation of the section.

110. Construing the language of the section without the assistance of Hansard, I would have concluded that the words "other place" required at least a defined structure or space of some substance either attached to land or having a connection to a location of some permanence giving it a degree of localisation. It would also need to be a space capable of substantially serving the purposes of a police station.

113. With the assistance of Hansard, it would seem that Parliament had the above in mind but not necessarily attached to land in that it wanted the words to cover a "booze bus" and thus a mobile location but one with a connection to a particular location of some permanence when in use. A "booze bus" is like a mobile police station and can serve similar purposes. A police car is not and cannot.

116. The legislative history also supports the narrower construction. To demonstrate the point it is necessary to refer to the legislation in some detail.

The Crimes (Breath Test Evidence) Act 1961, No. 6806 s.2, inserted a new s.408A into the Crimes Act 1958 as follows:

(4)(B) A person who is required as aforesaid to furnish a sample of his breath for analysis shall not be obliged to do so except -

(ii) at or in the vicinity of the place where his said driving or his said being in charge of the motor car occurred or at the police station nearest to that place.

That provision was amended by the Crimes (Evidence) Act 1968 No. 7782 s.2. It provided:

"In sub-paragraph (ii) in paragraph (b) of sub-section (4) of section 408A of the Principal Act (see above) for the words "at the police station nearest to that place" there shall be substituted the words "at the police station nearest to that place or (if that police station is then locked and entry cannot readily be obtained therein) within the grounds or precincts thereof. (c) Where a sample of breath is required to be furnished by any person within the grounds or precincts of a police station the person operating the breath analysing instruments shall do so in circumstances affording the greatest practicable privacy."

S.408 of the Crimes Act 1958 was repealed by s.11 Motor Car (Driving Offences) Act 1971 No. 8143 and ss.80E and 80F were inserted into the Motor Car Act 1958. The latter provided, inter alia

"80F(2) Any person required by a member of the police force under the foregoing provisions of this section to furnish a sample of his breath shall do so by exhaling into the instrument through the tube connected thereto but shall not be obliged so to do (a) . . . . (b) except at or in the vicinity of the place where the driving or being in charge of the motor car occurred or at a police station or within the grounds or precincts thereof or, if such person has been taken from the place where such driving or being in charge occurred for medical treatment, at the place where such person is receiving medical treatment."

s.80F(10) repeated the privacy provision as in s.408A (c)

The Road Safety Act 1986 No. 127 of 1986 repealed the Motor Car Act 1958 provisions and enacted, inter alia s.55(1) (above). There was no provision regarding privacy equivalent to those in the earlier Acts.

129. The sections originally expressly permitted breath analysis at or in the vicinity of the driving or at the nearest police station. They were then extended to permit breath analysis at the grounds or precincts of such police station. This approach was repeated in the subsequent amendment and in the Motor Car Act 1958. Under the Road Safety Act 1986, however, the breath analysis is to be done not at the place when the driving occurred and not at the nearest police station. The provision contemplates taking the suspect away from the place of the driving to "a police station or other place".

132. I am persuaded, therefore, that the expression "police station or other place" was not intended to include police cars. At best for the appellant, the provision is ambiguous and should, therefore, be construed in a manner favourable to the defendant.

135. I am also encouraged to construe the provision not to include police cars by the following considerations:

(a) In view of the obligation on the part of suspects to remain at the "place" for up to three hours, I think it unlikely that it was intended that the suspect would be required to submit to a breath test in the open air or in the back seat of a police car.

(b) Bearing in mind that citizens are compelled to provide evidence that may be used against them, the significance of the evidence produced by breath analysis machines and the significant evidentiary advantages given to the prosecution by the legislation, I think it unlikely that the parliament would have intended that a breath analysis could be required in such an informal fashion. There is a lot to be said for requiring a degree of formality and regularity of procedure and the use of standard procedures where what is involved is the obtaining of evidence from persons which may be used to convict them of criminal offences where such evidence is given extensive presumptive effect.

(c) I am also troubled by the possibility that the equipment, however robust, may run the risk of being adversely affected by excessive heat or cold or movement in the police car while kept in it and think it would be surprising in all the circumstances if the parliament had in mind that equipment producing evidence capable of being used conclusively against accused persons might be exposed to any such risk.

141. I appreciate the convenience for the police, and innocent suspects, in having on the spot breath analysis carried out. Against that must be weighed the desirability of avoiding the risk of error and minimising the potential for dispute and false allegations against the police inherent in the testing of suspects in the back seat of a police car. It is also desirable to have adequate facilities available for all concerned where they are engaged in an exercise that could take three hours.

144. In all the circumstances, a cautious approach should be taken.

147. For the foregoing reasons, I have come to the conclusion that the alleged errors of law have not been made out and, therefore, that the appeal should be dismissed with costs.

150. An issue remaining to be resolved is the correction of the register in the Magistrates' Court. The certified extracts relied upon in this case indicate that the respondent pleaded guilty and that the informant withdrew one of the informations. Neither event apparently occurred. At the conclusion of the hearing, I invited counsel to make further submission to me on this matter when I publish my reasons. The respondent foreshadowed an application that an order be made under s. 92(7) Magistrates Court Act 1989 to rectify the register.

I certify that this and the 15 preceding pages are a true copy of the reasons for judgment of Smith, J. of the Supreme Court of Victoria delivered on October 1998

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