Hogan (a pseudonym) v R

Judgment

1. SIMPSON AJA: On 14 August 2017 the appellant was arraigned in the District Court on an indictment that charged him with four offences as follows: "1 Between 29 March 1989 and 28 March 1991 … [he] did attempt to have sexual intercourse with [the complainant], a person above the age of 10 years and under the age of 16 years, namely between 12 and 13 years whilst under his authority."; "2 Between 29 March 1990 and 1 December 1991 … [he] did have sexual intercourse with [the complainant], a person above the age of 10 years and under the age of 16 years, namely between 13 and 14 years whilst under his authority."; "3 On or about 28 January 1992 … [he] did have sexual intercourse with [the complainant], a person above the age of 10 years and under the age of 16 years, namely 14 years whilst under his authority."; "4 Between 1 December 1990 and 30 June 1991 … [he] did have sexual intercourse with [the complainant], a person above the age of 10 years and under the age of 16 years, namely between 13 and 14 years whilst under his authority."
2. Count 1 was brought under s 66D of the Crimes Act 1900 (NSW) as it then stood. Counts 2, 3 and 4 were brought under s 66C(2) of the Crimes Act as it then stood.
3. At the relevant time s 66C of the Crimes Act provided: "(2) Any person who has sexual intercourse with another person who: (a) is of or above the age of 10 years, and under the age of 16 years, and (b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person, shall be liable to penal servitude for 10 years." Section 66D provided: "Any person who attempts to commit an offence under section 66C upon another person who is of or above the age of 10 years, and under the age of 16 years, or assaults any such person with intent to commit such an offence, shall be liable to the penalty provided for the commission of the offence."
4. The appellant entered a plea of not guilty to each count. Before a jury was empanelled counsel for the appellant made an application for a permanent stay of the proceedings. A voir dire hearing took place on 14 and 15 August 2017, at the conclusion of which the trial judge dismissed the application.
5. On 16 August the applicant was re-arraigned in the presence of a jury panel and again entered a plea of not guilty to each count. A jury was empanelled and a trial commenced. On 18 August the Crown Prosecutor sought and was granted leave to amend Count 2 by substituting 1 January 1989 as the date of commencement of the period during which that offence was alleged to have been committed, and stating the complainant's age as between 11 and 14 years (in lieu of between 13 and 14 years).
6. An application to amend Count 4 by pleading it as an attempt (under s 66D) rather than a completed offence (under s 66C(2)) was refused. The Crown then closed its case. Since it was apparent that the evidence was insufficient to support conviction of the appellant of the completed offence charged in Count 4, the trial judge directed, and the jury returned, a verdict of not guilty to that count.
7. After counsel addressed and the trial judge summed up, the jury returned verdicts of guilty on Counts 1 and 3, and not guilty on Count 2.
8. On 12 December 2017 the trial judge sentenced the appellant on the two counts on which he had been convicted to an aggregate term of imprisonment of 5 years commencing on 15 November 2017 and expiring on 14 November 2022, with a non-parole period of 3 years, which will expire on 14 November 2020.
9. The appellant now appeals against the convictions. He has not sought leave to appeal against the sentence imposed. He has pleaded two grounds of appeal: "1. That [the trial judge] erred in law by dismissing the applicant's application for a permanent stay of any further proceedings on the indictment. 2. That in all the circumstances the verdicts of the jury on counts 1 and 3 were unreasonable and not supported by the evidence and therefore there was occasioned to the applicant a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)."
10. By s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) a person convicted on indictment may appeal as of right to this Court on any ground that involves a question of law alone. By s 5(1)(b), where a proposed ground of appeal involves a question of fact alone, or a question of mixed law and fact, leave to appeal is required. By ground 1 the appellant asserts error of law in the approach taken by the trial judge to his application for permanent stay of the proceedings. Ground 2, however, at best involves a question of mixed fact and law for which the appellant requires leave.

The Crown case

1. At this point, the Crown case may be outlined succinctly. It will be necessary to address the evidence in more detail when considering ground 2 of the appeal.
2. The complainant, who was born in March 1977, is the daughter of the appellant. At all relevant times she lived in a Sydney suburb with the appellant, her sister (AH) who is about four years older, and an older brother (CH). Her mother and another sister lived in Ghana and she had little or no contact with them.
3. The Crown case was that, from 1989 until 1992 (that is, when the complainant was aged between 11 and 14) the appellant, on a regular basis, committed sexual offences against the complainant. The offences included attempted and completed sexual intercourse.

Ground 1: The application for permanent stay of the proceedings

1. Since the ground of appeal is that the trial judge erred in law in dismissing the application for permanent stay of the proceedings, the ruling obviously must be examined by reference to the evidence presented on the voir dire. That evidence was:

• a Crown Case statement;
• three statements made by the complainant dated 17 March 1992, 29 March 1992 and 8 October 1993 (to which reference will be made below);
• transcript of committal proceedings that took place in 1992 (to which reference will also be made below);
• correspondence between the Director of Public Prosecutions ("DPP") and the appellant's solicitor;
• a statement made by the complainant's sister, AH, on 20 April 1992;
• a folder of documents tendered on behalf of the appellant; and
• three affidavits of the appellant's solicitor, with annexures.

1. There are some unusual features of this case that throw light on both grounds of appeal. The following facts, relevant to the stay application, may be gleaned from the material before the Court.
2. Early in 1992, when she was 14 years of age, the complainant made allegations that the appellant had, on a regular basis since early 1989, committed sexual offences against her. She told her sister, AH, of the conduct. With the assistance of her aunt, BH, the complainant attended a child protection unit (apparently a joint undertaking of NSW Police and child protection authorities). On 6 March 1992 she was medically examined by Dr Christine Norrie. Dr Norrie concluded that the examination revealed hymenal changes consistent with the complainant having had repeated sexual intercourse, and that those changes could have been caused by the insertion of something other than a penis, but not by the insertion of a tampon.
3. On 17 March 1992 the complainant was interviewed by police; the interview was recorded in typescript. A second interview, similarly recorded, took place on 29 March 1992. In the interviews, the complainant gave an account of repeated sexual assaults on her by the appellant. In a statement made on 20 April 1992, AH said that, in about March 1989, the complainant had told her of sexual assault by the appellant. AH said that she had discussed the allegation with her brother (CH), and then with her aunt, BH. A family meeting took place, at which BH, the appellant, the appellant's brother RH, CH, AH and the complainant were present. AH said that the appellant initially denied "sleeping with" the complainant, but that, after further questioning: "… [the appellant] finally admitted to sleeping with [the complainant]."
4. On 2 April 1992 police approached the appellant and spoke to him at his home. The appellant made admissions which were (briefly) recorded by Detective Senior Constable Jeffery Hayes in a notebook. Included in the defence folder of documents was what appears to be a page of a police notebook, dated 2 April 1992. Recorded on the page was the following: "6.50pm 2 April 92 [address] IN KITCHEN Allegation That's not true further questioned about conversation by family [illegible] Told since 12 y.o. Not that long Do you admit to having SI with C? A Yes Caution - Arrest P Why SI with C A I would like to see my solicitor before I answer that question."
5. The appellant was taken to Campsie Police Station and formally interviewed. The interview was recorded electronically, but whether by video and audio or only audio is not clear. He denied the allegations.
6. Committal proceedings took place on 23 June 1992 and 14 August 1992. The complainant, Dr Norrie, AH and BH and two police officers (one of whom was Senior Constable Hayes) gave evidence and were cross-examined. The cross-examination of the complainant was comprehensive. At the conclusion of the hearing, the appellant was committed for trial in the District Court. A trial was fixed to commence on 22 November 1993.
7. On 8 October 1993 the complainant notified NSW Police that she did not wish to proceed with the prosecution. She made a statement to that effect, giving as her reason: "The reason why I no longer want to go on with the matter is religious. I believe that it is not up to me to punish him that will happen later. I don't have any love for him, but I have forgiven him."
8. On 11 January 1994 the DPP advised investigating police, the Legal Aid Commission and the appellant that he had decided not to proceed with the prosecution of the appellant. He disclosed no reason for that decision.
9. In 2014 the complainant had a change of heart. She decided that she did want to proceed with the prosecution. She explained this in a statement made on 24 June 2014. She said that the reason for her original decision not to proceed was that she had received a letter purporting to be from her mother asking her to "drop the court case" as it was "not good for [her mother's] health". She said that, on the basis of the letter, she had genuine concern for her mother's health and that her mother was finding the whole situation "overwhelming and too much to cope with".
10. However, in late 2013 and early 2014 the complainant, with her husband and children, visited her mother in Ghana. Communication was difficult because the complainant did not speak her mother's language, and her mother did not speak English. A younger sister, who had initially remained in Ghana when the rest of the family came to Australia, travelled with the family to assist in translation.
11. The complainant said that, after some time, she raised with her mother the question of the letter. Her mother denied having written or signed any letter. She said that she was illiterate. The complainant then believed that she had been "manipulated or tricked" into withdrawing the complaints against the appellant. It was in these circumstances that she decided to reactivate her complaints.
12. Following the complainant's change of heart, from October 2014 Detective Senior Constable Matthew Truelove sought to retrieve material collected for the 1992 prosecution. He was largely unsuccessful. Notably, neither any video, audio or written record of the appellant's police interview (in which he denied the allegations) could be located. Nor could occurrence pads from the Campsie Police Station be found. Medical records of Dr Norrie were located but were mostly illegible.
13. On 5 May 2016 the appellant was informed that the investigation had been resumed. On that day he was served with a copy of the indictment.
14. In support of the stay application, the appellant's solicitor, Michael Priddis, affirmed three affidavits in which he outlined the steps he had taken to locate relevant material and information from 1992 and 1993. Little was able to be found. What was available includes:

• the 1992 statements of the complainant in which she gave detailed accounts of the offences she alleged the appellant had committed against her;
• the complainant's 1993 statement that she did not wish to proceed with the prosecution, giving religious considerations as her reasons;
• the transcript of the committal proceedings;
• AH's 20 April 1992 statement in which she recounted, inter alia, complaints made to her by the complainant, the family meeting in which her aunt, BH, had confronted the appellant and he "finally admitted sleeping with [the complainant]". AH said that a number of family members (including the appellant's brother, RH) were present;
• a copy of the page of Senior Constable Hayes' notebook recording a conversation with the appellant on 2 April 1992;
• correspondence from Senior Constable Hayes, concerning the complainant's stated wish not to proceed with the prosecution;
• a statement by Detective Senior Constable Truelove setting out the attempts - largely fruitless - that he had made to obtain records and material relevant to the earlier proceedings.

1. Also in evidence was a statutory declaration made by AH on 27 June 2016 in which she claimed that, in making her original statement, she had been influenced by BH, that she was now mature and able to think independently, and that she was no longer "standing by" her 20 April 1992 statement. AH did not make any assertion that the 1992 statement was untrue.
2. Counsel for the appellant made detailed written and oral submissions in support of the stay application. His essential point was that, by reason of the loss of documentation and medical evidence, a fair trial could not be afforded to the appellant.
3. It was also asserted that the appellant's brother, RH, had returned to live in Ghana and had never made a statement. It was asserted that RH was a potentially relevant witness in the appellant's defence with respect to AH's assertion of the appellant's admission in the family meeting when he was confronted with the complainant's allegations.
4. Counsel identified the potential prejudice of a trial as lying, particularly, in the loss of the appellant's exculpatory recorded interview, the illegibility of medical records, rendering impossible cross-examination on any potential inconsistencies, and the preparation of independent expert analysis, the effect of delay on the recollections of significant Crown witnesses, and the lost opportunity of the appellant to produce evidence casting doubt on the complainant's evidence of "time, place and circumstances". In the last respect, particular emphasis was placed on the allegation in Count 3 which stated a specific date - the point being that, absent the lengthy delay, the appellant may have been able to produce, for example, alibi evidence or other evidence casting doubt on the evidence of the complainant.
5. Counsel also pointed to procedural changes in the conduct of criminal trials, particularly those involving allegations of sexual offences, involving limitations on cross-examination of complainants. One such specific disadvantage, he submitted, was that, prior to June 1994, an accused person was entitled to make an unsworn statement which was not subject to cross-examination. That was abolished with the enactment of s 404A of the Crimes Act, now s 31 of the Criminal Procedure Act 1986 (NSW).

The trial judge's decision

1. As indicated above, the trial judge rejected the application. He considered the loss of various items of evidence, including the record of the appellant's interview, medical records and "the original police case file". He observed that hearsay rules meant that evidence would be available that the appellant had contemporaneously denied the allegations. He considered that the loss of legible medical records had "some significance", but that that was diminished by the availability of the evidence of Dr Norrie (who had given evidence in the committal and was there cross-examined).
2. His Honour said: "In terms of the way a stay is to be considered, it involves the weighing and balancing of a variety of factors and considerations. Amongst these factors and considerations are a requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the conviction of those guilty of crime and the maintenance of public confidence in the administration of justice."
3. He reviewed various authorities relevant to stay of proceedings in a manner that has not attracted criticism. He concluded: "However, in my view, this is a case in which the position is that there is nothing so fundamental in the absence of the material that cannot be cured by direction and I take the view that with directions in relation to delay, with a direction in respect of the accused responding by way of a denial when he was not required to say anything and an indication that the absence of that material is no fault of the accused, that a jury will be able to conduct a fair trial in relation to the allegations … Ultimately whilst I acknowledge that there is a disadvantage forensically to the accused of particularly the loss of the interview, the position is, in my view, that there is nothing that goes fundamentally to the root of the trial that means the accused cannot obtain a fair trial with the appropriate directions."

The appellant's submissions on appeal

1. The submissions on behalf of the appellant began by acknowledging that a permanent stay of criminal proceedings will be granted only in "an extreme case". Having also reviewed the authorities, counsel contended that: "43 The applicant did not receive a fair trial because, it is submitted, his trial involved a risk of the applicant being improperly convicted. This is because there was a fundamental defect which went to the root of the trial and was of such a nature that there was nothing that the trial judge could do in the conduct of the trial to relieve against its unfair consequences … 44 This fundamental and incurable defect arose out of the compounding effects of a multiplicity of actual prejudices to the applicant occasioned by the termination of the proceedings in 1993, the subsequent loss of evidence including legible medical records of the examination of the complainant and the applicant's [interview], and the very considerable delay in reinstituting the proceedings in circumstances where the applicant was unable to receive a fair trial in 2017."
2. Express reference was made to the various unavailable items. Reference was also made to the 2016 statement of AH, which was wrongly stated to be to the effect that her original statement to police was a lie.
3. It was contended that the most significant prejudice to the appellant was occasioned by the loss of the record of his police interview.

Disposition

1. The principles relating to permanent stay of criminal proceedings are well-known and not controversial. A recent, but not novel, consideration is to be found in R v RD [2016] NSWCCA 84. Bathurst CJ (with whom Johnson J and R S Hulme AJ agreed) stated the test as: "53 … whether the continuation of the prosecution is inconsistent with the recognised purpose of criminal justice and so constitutes an abuse of the process of the court … to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of a trial of such a nature that there is nothing the court can do to relieve against its unfair consequences." (internal citations omitted)
2. Whether to grant or refuse a permanent stay is a discretionary decision, reviewable only on principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. For an appeal to succeed, it is necessary that the appellant identify some error, patent or latent, in the decision. No attempt was made to do that. Rather, the argument that was put to the trial judge was re-stated.
3. The submission concerning the 2016 statutory declaration of AH may be dispatched quickly. First, it is incorrect to say that AH said that her original statement was a lie. All she said was that she was "no longer standing by" her original statement. Second, how that could be seen to be detrimental to the appellant was never explained. A witness who would have given evidence against the appellant in 1992 was now not available to do so.
4. It is now commonplace, especially in cases where sexual offences against young complainants are alleged to have been committed by family members or acquaintances, for there to be some, often lengthy, delay in the institution of proceedings. Trial procedures and directions have been devised and designed to accommodate the disadvantage that results therefrom: Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60.
5. In fact, the appellant was in a better position than many who are accused of sexual crimes long after the events the subject of the allegations. He had the benefit of a near contemporaneous denial. He had the benefit of cross-examination of Crown witnesses at his 1992 committal, the transcript of which was available to be put to whatever use his legal representatives thought would advantage him. A person (AH) who would (in 1993) have been a Crown witness was not.
6. There is no substance in ground 1 of the appeal. I would reject it.

Ground 2: unreasonable verdict

1. The principles upon which a ground of appeal asserting that a conviction is unreasonable are well-known and have been stated repeatedly. In M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Mason CJ, Deane, Dawson and Toohey JJ said: '7 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (internal citations omitted) See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
2. More recently, in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court said: "65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code [Act 1899 (Qld)] is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial). Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (internal citations omitted)
3. The principal basis for the appellant's contention that the verdicts of guilty were unreasonable lay in what was said to be inconsistency in the acquittal of the appellant on Count 2, and his conviction on Counts 1 and 3. Reliance was placed on the decision of the High Court in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56. Mr Jones had been charged with three counts of sexual intercourse with a female child. He was convicted of two and acquitted on one. The plurality in the High Court (Gaudron, McHugh and Gummow JJ) said (at p 453): "The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment … It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count. Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care - (1) her delay in making the complaint; and (2) the lack of any corroborative evidence, in particular, the absence of any medical evidence." (internal citations omitted)
4. That decision was applied in various ways, until explained by Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290. Spigelman CJ referred to what he identified as erroneous application of Jones, in the proposition that, where the evidence against an accused person is only that of the complainant, a mixture of acquittals and convictions cannot be sustained unless the court can detect a relevant difference in the quality of the complainant's evidence. Spigelman CJ said: 65 In my opinion this is not what the High Court intended. Whether or not the failure of the jury to accept the complainant's version in one respect ought to have led to the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant's evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, that conclusion does not, in my opinion, follow in every such case unless the Court is positively satisfied that there is some relevant difference in the quality of the complainant's evidence."
5. Mixed verdicts have been the subject of consideration in this and other criminal appellate courts on many occasions. In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 I suggested that the proper enquiry is whether the acquittals, not the convictions, can be explained. That analysis was accepted by Leeming JA, Walton and Wilson JJ in Jafary v R [2018] NSWCCA 243.
6. The acquittal on Count 2 could be explained. That was the count that was the subject of amendment which expanded the range of dates during which the offence was alleged to have been committed. That alone is, in my opinion, sufficient for the jury to have questioned the accuracy of the complainant's evidence of that incident. It did not, however, impinge upon the other two counts.
7. Although, as I have suggested above, the principal focus of the appellant with respect to this ground of appeal was on the inconsistency of verdicts, there were more general points made. One was that "there were no eye witnesses" or "independent corroboration" of the complainant's allegations.
8. That, of course, is commonplace in cases of alleged sexual offending.
9. It was also submitted that the complainant: "retracted her allegations and only revived them after a very considerable delay of almost 23 years".
10. That is an overstatement of what happened. There is no evidence that the complainant ever "retracted her allegations"; she stated that she did not wish to proceed with them, giving, in the first instance, her reasons as religious, and, subsequently, pressure that had been brought to bear upon her, she thought, by her mother in Ghana. That is a long way from retracting allegations. As soon as she became aware that her mother had not urged her to discontinue the prosecution, she reactivated it.
11. It was also submitted that the complainant's evidence was "so contradictory to the Crown allegations in the Crown Prosecutor's opening address, and so unreliable" as to cause the trial judge to direct an acquittal on Count 4.
12. In this respect it must be recalled that the complainant's allegations were of repeated and regular offences. It is unsurprising that, in the context of a trial, she may have confused some of the detail of the occasions on which the offences were committed.
13. Another submission made was that the complainant's delay in making complaint, and the lack of any corroborative evidence, made it necessary to scrutinise the complainant's evidence with considerable care. The first of these propositions is untenable; there was no delay by the complainant in making complaint - she complained at an early stage to her sister and to her aunt. The delay in prosecution came about for the reasons already explained. It is also wrong to say that there was no corroborative medical evidence; Dr Norrie confirmed that genital examination of the complainant established changes consistent with penetration which was not explained by the use of tampons.
14. Moreover, the trial judge gave a direction in accordance with R v Murray (1987) 11 NSWLR 12. That was a direction unduly favourable to the appellant, and should not have been given: Ewen v R [2015] NSWCCA 117; (2015) 250 A Crim R 544.
15. I have considered the evidence, as I am required to do by M v The Queen and other cases.
16. I am satisfied that it was open to the jury to convict the appellant on Counts 1 and 3, notwithstanding his acquittals on Counts 2 and 4. I am satisfied that the appellant was rightly convicted.
17. I would reject ground 2 of the appeal.
18. Accordingly, I would make the following orders: 1. To the extent necessary, grant leave to the appellant to appeal against the conviction on the basis of ground 2; 2. Dismiss the appeal.
19. JOHNSON J: I have had the advantage of reading the judgment of Simpson AJA. I agree with her Honour's reasons and proposed orders. With respect to the second ground of appeal, having considered the evidence adduced at the trial, I am satisfied that it was open to the jury to find the appellant guilty of Counts 1 and 3.
20. N ADAMS J: I too have had the advantage of reading in draft the judgment of Simpson AJA. I agree with her Honour that the appeal should be dismissed for the reasons provided by her Honour. As for Ground 1, no error in the exercise of the trial judge's discretion was identified before this court. As for Ground 2, I too am not persuaded, for the reasons identified by Simpson AJA, that the jury ought to have entertained a reasonable doubt as to the appellant's guilt. My agreement with her Honour on this ground was reached after an independent examination of the trial evidence.

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