R v SANDOVAL

District Court of NSW|2011-11-08|Before: Ms P

HEARING DATE(S): 8 November 2011 - 9 November 2011

Count one - not guilty. DECISION: Count two - not guilty by reason of mental illness Count three - not guilty. Count four -not guilty by reason of mental illness.

CATCHWORDS: CRIMINAL LAW - Judgment and verdict - Judge alone trial - Whether defence of mental illness available to offences under s 52A Crimes Act - Whether mental illness negatives mens rea

Crimes Act LEGISLATION CITED: Criminal Appeal Act 1912 Mental Health (Forensic Provisions) Act 1990

DPP v Harper [1997] EWHC Admin 367 Giorgianni v R 156 CLR 473 Hill v Baxter 1 QB 277 Kirk v Industrial Relations commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1 O'Connor v The Queen (1980) 146 CLR 64 CASES CITED: R v Hilder (1997) A Crim R 70 R v Horseferry Rd Magistrates Court ex parte K [1996] 160 JP 441 R v McMahon [2006] NSWDC 81 R v Piper unreported NSWDC 14 April 2005 R v Piper [2005] NSWCCA 134 R v S [1979] 2 NSWLR 1 R v Weeks (1993) 63 A Crim R 466

Crime and Mental Health Law in New South Wales (2nd ed) - Howard and Westmore TEXTS CITED: Magistrates Insanity and the Criminal Law [1997] Crim LR 796 - Dr Tony Ward Rethinking the Criminal Law - Professor George Fletcher Text Book of Criminal Law (1979) Glanville Williams

PARTIES: The Crown Henri Giovanni Sandoval

COUNSEL: Ms N Adams - The Crown Ms P David - Defendant

SOLICITORS: Director or Public Prosecutions Legal Aid Commission

1 When this matter was called on for trial on 8 November 2010 I was advised that the accused had made an election to have his trial heard by way of judge alone. I noted that the appropriate election, consented to by the prosecutor, had been filed in the Registry on 4 November 2010. I satisfied myself that the accused had received appropriate advice from his solicitor and barrister about the election he had made. I therefore commenced to hear the trial without a jury.

2 The accused was arraigned on an indictment containing four counts, all arising out of a collision between a vehicle he was driving and a vehicle in which two others, Ms Angela Pong and Mr Raymond Lai were travelling. All four counts alleged offences against s 52A Crimes Act.

3 The first count is an allegation that the accused drove dangerously whereby the vehicle he was driving was involved in an impact as a result of which grievous bodily harm was occasioned to Ms Pong, and at the time the accused was driving to escape pursuit by a police officer. Count two was laid in the alternative to Count one. It was an allegation that the accused committed the non aggravated version of the offence alleged in Count one (that is, without the element of escape from a police pursuit). Count three was identical to count one except that a different victim was named and Count four was the non aggravated version of Count three.

4 The accused pleaded not guilty to all four counts. As far as Counts 1 and 3 are concerned his case is that the Crown has failed to prove beyond reasonable doubt that he was escaping a police pursuit. As far as the alternative Counts are concerned, his case is that he is entitled to be found not guilty on the grounds of mental illness.

5 The evidence mainly consisted of the tender of documentary evidence, although oral evidence was called from the officer in charge, Sergeant Dixon, as well as two psychiatrists, one called by the Crown, Dr Allnutt, and one called by the accused, Dr Nielssen.

6 There was much that was not in dispute. Although there were some differences of opinion between the psychiatrists these have not turned out to be relevant to the verdicts that I have reached. The evidence of Sergeant Dixon was not really in dispute either, he being called to clarify other matters not apparent from the documentary evidence.

7 The primary evidence regarding the circumstances which led to the collision was to be found in an agreed statement of facts tendered by the Crown with the consent of Ms David for the accused. It became exhibit one in the trial. Thus the agreed circumstances leading up to the collision and what occurred thereafter are as follows.

8 At about 3.55am police were patrolling the vicinity of Bulwarra Road, Ultimo in a police vehicle. The police vehicle was unmarked. They saw the car being driven by the accused accelerate north along Bulwarra road. The Police followed the car.

9 The car driven by the accused then turned onto Allen Street before stopping at a red traffic control signal that governed the intersection with Harris Street. The car was then observed by police to roll through this red light. Police then activated all warning devices on the police vehicle in an attempt to stop the car for disobeying the red traffic control signal.

10 Police attempted to stop the car which had turned into Pyrmont Street and was travelling at a slow speed. The police vehicle maintained a position behind it with flashing lights still activated and the right indicator flashing in an attempt to stop the car.

11 At this stage the car accelerated harshly upon Pyrmont Street. The rear of the car was seen to 'fish-tail' whilst it was under harsh acceleration. Police then initiated a pursuit .

12 The car continued along Pyrmont Street which changed into Quarry Street. At the time there was light traffic in the area. Police continued to pursue the car into Quarry Street before it turned onto Ada Place against a 'One Way' sign. The car, facing in a northerly direction within Ada Place, then stopped.

13 Pursuing police stopped their police vehicle behind the car. The car's reversing lights then illuminated before it reversed slightly on two occasions towards the police vehicle. The car then accelerated harshly northbound upon Ada Place against the flow of traffic at a speed estimated at around 50km/h. All the while the police vehicle was pursuing with all warning devices activated, flashing lights and sirens.

14 The car was then driven from Ada Place veering right onto Upper Fig Street heading in an easterly direction. The car was then seen to cross the intersection with Harris Street and Fig Street before entering the off-ramp for the Western Distributor within the incorrect lanes and against the flow of traffic.

15 The car was seen to accelerate harshly in an easterly direction within these lanes. Police immediately terminated the pursuit due to the level of danger and stopped following the car.

16 The accused continued to drive the car along the westbound lanes of the Western Distributor in an easterly direction against the proper flow of traffic and at a speed believed to be well in excess of the 60km/h speed limit.

17 Eventually the inevitable occurred. The car driven by the accused collided heavily with a Peugeot car being driven by Ms Angela Pong. Her husband Raymond Lai, was seated in the front passenger seat.

18 The impact of the collision forced the Peugeot rearwards approximately 18 metres against its original direction of travel. The accused's car also came to rest near the front of the Peugeot with both cars sustaining major frontal intrusion damage.

19 Both Ms Pong and Mr Lai suffered grievous bodily harm as a result of the collision. The accused left the scene.

20 The accused admitted himself to Campbelltown Hospital Emergency Department. On examination he was found to have injuries to his back and leg. He informed medical staff that he had been involved in a 'go-cart' accident. He was hospitalised with these injuries for several days before entering himself into Waratah House, the mental health wing of the Campbelltown Hospital as a voluntary patient.

21 The accused remained at Waratah House until he was discharged by the medical staff on Thursday 25 June, 2009.

22 At the time of the pursuit and collision, traffic was light on all roads travelled upon and the weather was overcast with occasional rain. The roadway was wet at the time. From where the accused entered onto the Western Distributor to the collision scene is approximately 700 metres. On inspection of the car at the scene police observed the instruments to be locked into place following the collision with the speedometer reading approximately 100km/h. Police are of the view that this speed is consistent with the extensive intrusion damage sustained by both cars and the force with which the Peugeot was pushed rearward.

23 As well as evidence as to what the accused did, there was a great deal of evidence as to his mental state at the time. It is clear that at the time of the collision the accused was undergoing a psychotic episode, hearing voices which made threats against him. He believed that demons were after him. Both the Crown and the accused asked me to accept that those threats, which the accused, in his psychotic state, genuinely believed, were what caused him to drive in the way he did. The accused told psychiatrists who interviewed him that he was not aware that police were following him (it will be recalled that the police vehicle was unmarked) and that all he recalled were noises and evil voices like demons in the car.

24 Ultimately there are two live issues for me to decide, the first concerning whether the Crown has proved the aggravating elements of Counts one and three and the second concerning whether the accused can rely on the defence of mental illness in a case where, as here, he is charged with an offence which does not require proof that the accused knew that he was driving dangerously.

25 It is the Crown's position that the aggravating circumstance alleged in Counts one and three is proved even in a case where the Crown can not prove that the accused was aware that police were pursuing him. I have resolved this issue against the Crown for reasons I will explain, and so I do not need to consider whether the Crown would also fail to prove the aggravating circumstance in a case where, as here, the actual pursuit had been terminated before the collision.

26 It is the Crown case as regards the mental illness defence that, as a matter of law, it does not apply to charges of this type, but the Crown concedes that if I find to the contrary then the evidence would establish the defence on the balance of probabilities and thus entitle the accused to be found not guilty on the grounds of mental illness.

27 Before I can resolve these issues I have to set out some principles of law, those principles being matters I would have directed a jury about if there were a jury.

28 Of course the elements of the offence have to be proved by the Crown beyond reasonable doubt. If the defence of mental illness is applicable, it needs to be proved by the accused on the balance of probabilities.

29 If there were a jury I would have instructed them in conformity with my duty under section 37 Mental Health (Forensic Provisions) Act 1990, but I would also have told them, consistent with R v Hilder (1997) 97 A Crim R 70 that they should not allow the consequences which I had explained to them to affect their verdicts

30 I must decide whether the Crown has proved the elements of the offences against the accused. If that is the case then I turn my attention to the question of whether the accused was mentally ill at the time. The accused would be mentally ill if the accused was labouring under a defect of reason caused by a disease of the mind as a result of which the accused either did not know the nature and quality of his act (the first limb); or if the accused did know the nature and quality of the act, he did not know that it was wrong (the second limb).

31 The elements of Counts one and three are as follows 1. The accused was the driver of the vehicle referred to above. 2. That vehicle was involved in an impact with the vehicle within which Ms Pong and Mr Lai were travelling. 3. The impact caused grievous bodily harm to Ms Pong (Count one) and Mr Lai (Count three). 4. At the time of the impact the accused was driving in a manner dangerous to another person or persons. 5. At the time of the collision the accused was driving to escape pursuit by a police officer.

32 The first four elements are not disputed. The statement of facts, which was unchallenged, clearly establishes each of the elements beyond reasonable doubt.

33 On the other hand there is a real dispute as to whether the Crown has proved beyond reasonable doubt that at the time of the collision the accused was driving to escape pursuit by a police officer.

Was the accused driving to escape a police pursuit?

34 There are two issues which arise. Firstly there is the temporal one. At the actual time of the collision the pursuit had been terminated and so the accused's argument is that he could not be said to have been driving to escape pursuit by a police officer at the time of the collision because there was no such pursuit. On the other hand the Crown argument is that the collision occurred so closely after the pursuit was terminated by the police officer, and in circumstances where the accused would not have been aware that the police had made that decision, that the accused was nevertheless driving to escape pursuit by a police officer.

35 I do not need to resolve this matter because I am satisfied that the Crown has failed to prove the fifth element in another respect, because there is no evidence which I could accept to justify a conclusion beyond reasonable doubt that the accused knew that he was being pursued by a police officer at the time of the collision, shortly before the collision or indeed at any time at all.

36 The Crown says that I do not need to look at what the accused believed as to whether he was being pursued by a police officer or not. The Crown argument is that it is an objective test - was he escaping pursuit by a police officer? The Crown points to the other circumstances of aggravation to be found in s 52A(7) which are all clearly objective. For example there be no requirement that the Crown prove that the accused knew that he had the prescribed concentration of alcohol in his blood.

37 On the other hand, and this is an argument that I accept, how can a person drive a vehicle "to escape pursuit by a police officer" unless the person knows about the pursuit in the first place?

38 It is important to note that the words "to escape" must be given some work to do and that if the Legislature had wanted the circumstance of aggravation to be as the Crown says it is, it could easily have described the circumstance of aggravation thus: "the accused was driving the vehicle whilst being pursued by a police officer". The only realistic interpretation of the words as they exist in s 52A(7)(c) is that the accused must be attempting to "escape" and the only realistic understanding of the circumstance of aggravation is thus that the Crown has to prove that the accused knew about the pursuit.

39 I thus conclude that the circumstance of aggravation, that is element five, is only proved if the Crown satisfies me beyond reasonable doubt that the accused knew that he was being pursued by a police officer and was driving his vehicle in order to escape that pursuit. Ordinarily of course that would not be a difficult matter to prove, but the accused's mental state in this case is such that the Crown is unable to satisfy me beyond reasonable doubt that the accused had the necessary awareness. Nor, it must be said, did the Crown try to prove that matter, the Crown's argument being limited to a legal one, apparently accepting that the evidence was such that the accused was unaware of the pursuit.

40 This means that I must find the accused not guilty on Counts one and three. The elements for Counts two and four are the same as the first four elements for Counts one and three. As I have mentioned earlier, there is no dispute that each of them have been satisfied by the Crown beyond reasonable doubt. That would ordinarily mean that I would find the accused guilty on those counts but the accused relies on the defence of mental illness. It is to that issue that I will now turn.

Can the defence of Mental Illness be relied on in a charge under s 52A Crimes Act?

41 The remaining issue for me to determine is whether a person charged with an offence under s 52A Crimes Act can rely on the defence of mental illness. The Crown says that because the presence of mental illness negatives mens rea, and because it does not have to prove that the accused knew that he was driving dangerously, then mental illness cannot be relied on. The Crown acknowledges that this makes the crimes of dangerous driving occasioning grievous bodily harm or death most unusual. It acknowledges that the defence of mental illness can be relied on for murder, sexual assault, and crimes of horrific violence for example but says that offences of the type the accused faces in this trial are special. The Crown argument is that the offence is more like a regulatory offence, despite the fact that, in one of its forms, an offence under s 52A Crimes Act carries a maximum penalty of 14 years imprisonment.

42 That the Crown does not have to prove that a person charged with a breach of s 52A appreciated that he or she was driving dangerously can easily be accepted (see Giorgianni v R (1985) 156 CLR 473), but the other aspect of the Crown submission should be rejected.

43 The Crown argument that mental illness negatives mens rea and so is of no application in the present case should be rejected for a number of reasons. Firstly it is inconsistent with decisions taken by two other District Court judges in trials involving allegations against s 52A (and a decision of mine concerning an unrelated offence). Secondly it is inconsistent with a proper understanding of the mental illness defence. And thirdly it is inconsistent with the philosophy which lies behind the treatment of mentally ill people who perform what would otherwise be criminal acts.

44 In R v Weeks (1993) 63 A Crim R 466 the accused was charged with manslaughter, in the alternative an offence of culpable driving causing death. The accused drove on the wrong side of the road for some distance before colliding with a vehicle travelling on its correct side of the road. Breath analysis conducted soon after the collision revealed a blood alcohol concentration of 0.190 grams/100 mls of blood.

45 The accused elected for trial by judge alone and relied on the defence of mental illness to both counts on the indictment. The evidence established that the accused was suffering from hypomania at the time of the collision and in the time leading up to it. The trial judge found that the accused had established on the balance of probabilities that he was not guilty of the count of manslaughter by reason of mental illness. The judge said: "I make no finding in respect of the second count, although it is obvious the same result would happen"

46 Thus in R v Weeks the trial judge accepted that the defence of mental illness was available to a charge under s 52A Crimes Act.

47 Some time later, in R v Piper, unreported NSWDC 14 April 2005, a different District Court judge also accepted that the defence of mental illness could be relied on in a trial concerning an offence under s 52A (coincidentally where the accused also killed someone by driving on the wrong side of the road). In that case, Hosking J was asked to determine the admissibility of evidence concerning mental illness as a pre-trial issue. The Crown, similarly to the submission advanced by the Crown in the present trial, submitted that the evidence of mental illness was irrelevant because the mental illness defence could not be relied upon on a charge under s 52A. Hosking J reviewed some of the history of the mental illness defence and decided that the defence was available. The Crown then appealed, R v Piper [2005] NSWCCA 134, but the Court of Criminal Appeal ruled that the appeal was incompetent. The Court of Criminal Appeal therefore did not decide whether Hosking J was right in holding that the defence was available. (As it turned out his Honour convicted Ms Piper and there was no further challenge by the Crown to his Honour's disputed ruling).

48 Hosking J's judgment in Piper is extensively examined by the authors of Howard and Westmore, Crime and Mental Health Law in New South Wales, (2nd ed) at page 330, under the heading "The Relationship of Mental Illness to Mens Rea and Strict Liability". The learned authors examine the judgment in the context of the historical origins of the defence of mental illness, including the extensive examination of the topic by O'Brien J in R v S [1979] 2 NSWLR 1, and conclude:

"In the light of these earlier approaches to insanity, Hosking DCJ's analysis is probably correct"

49 So, as the historical analyses of Hosking J, O'Brien J and Howard and Westmore demonstrate, to accept the idea that the insanity defence can be relied on for a strict liability offence is consistent with the origins of the defence.

50 There are two further important things to note about the way I should treat Weeks and Piper. The first is that neither the Crown nor Ms David were able to provide me with any other decisions in New South Wales, or Australia for that matter, to either confirm or contradict the decisions reached in Weeks and Piper. The second thing to note is the Crown did not seek to challenge the finding in R v Weeks under s 5A Criminal Appeal Act 1912 nor has Parliament intervened following the similar decision in R v Piper.

51 Of course I must follow these two decisions of District Court judges unless I was convinced that they are clearly wrong. Fortunately I am convinced that they are clearly right in holding that a person charged with a breach of s 52A can raise a defence of mental illness (even if I am not totally convinced about the way it was applied in Weeks). That conclusion is not surprising because the decisions in Piper and Weeks are consistent with a decision of mine in R v McMahon [2006] NSWDC 81.

52 It is not only gratifying, but also of assistance in deciding the issue in this case, to note that the authors of Howard and Westmore describe my decision in these terms; Berman DCJ in R v McMahon was clearly of the view that the essence of the mental illness defence was not that it negatived mens rea (which it certainly can do), but that it made a person not criminally responsible for his or her actions, whether intended or not. … the analysis that follows, in relation to insanity and strict liability, suggests that his Honour was correct (emphasis added).

53 The best that the Crown could do in finding an authority to suggest that Weeks and Piper were wrong was an English decision of DPP v Harper [1997] EWHC Admin 367 (conveniently located on the internet at http://www.bailii.org/ew/cases/EWHC/Admin/1997/367.html). This was a prosecution appeal from a court of petty sessions after the justices acquitted Mr Harper of a drink driving offence because of his mental illness. The Court in Harper followed an earlier decision of R v Horseferry Rd Magistrates Court ex parte K [1996] 160 JP 441 in holding that the defence of insanity had no relevance to a charge of drink driving because it was an offence of strict liability, the Court saying "the defence is based on the absence of mens rea".

54 Not only is that statement inconsistent with Weeks, Piper and McMahon, but I believe those statements of the law to be wrong for reasons I will explain. It is perhaps significant to note at this stage that whilst the prosecution was represented, the respondent was not. Nor did the Court refer to Hill v Baxter [1958] 1 QB 277 where the judgments, especially Devlin J at 285-286 implicitly suggest, albeit obiter, that the mental illness defence is available to offences of dangerous driving.

55 The decision in Harper was the subject of criticism in an article by Dr Tony Ward entitled "Magistrates Insanity and the Criminal Law [1997] Crim LR 796. Hosking J refers to this article in his judgment in Piper. His Honour quoted the following passage; "This argument is fallacious. The basis of Harper's defence was that his state of manic-depressive psychosis was such that he did not know that drunken driving was either legally or morally wrong. Such knowledge is not part of the mens rea of any offence. Since the 'wrongness' limb of the insanity defence does not negate mens rea (unless mens rea is defined tautologously to include insanity), it is nonsensical to say that it cannot apply where there is no mens rea to negate"

56 Dr Ward's criticisms (and there are many in his article) must clearly be right. The decision in Harper is fundamentally at odds with the origin of the defence of insanity. Two of the best known examples of the early use of the insanity defence are those of James Hadfield, who tried to kill King George III, and Daniel M'Naghten (he of the M'Naghten Rules) who tried to shoot the then Prime Minister Sir Robert Peel, but ended up shooting his private secretary, Edward Drummond instead. As Howard and Westmore explain Hadfield's motivation was that he suffered from a deluded belief that he could redeem all mankind if he were dead and the best way of committing suicide would be to ensure his execution for having assassinated the reigning monarch. M'Naghten on the other hand wanted to kill the Prime Minister because he believed he was being persecuted by the Tories. Both Hadfield and M'Naghten were acquitted on the grounds of mental illness, but it is important to note that this is not because they lacked any mens rea. Hadfield clearly intended to kill George III and so he possessed the mens rea relevant to the crime of high treason with which he was charged. M'Naghten clearly intended to kill Sir Robert Peel (the concept of transferred malice operating so as to make it irrelevant that he ended up killing someone else) and so he possessed the mens rea for murder, the crime with which he was charged.

57 Their deluded beliefs did not operate in any way to affect the mens rea that they possessed - they each intended to kill. Their motivations may have been misguided because of their mental illness but motive and intention are entirely different things. This is the point made by Dr Ward in his criticism of the approach taken in Harper and Horseferry Rd Magistrates Court.

58 Perhaps part of the confusion regarding mental illness and mens rea arises from the circumstance that the first limb of the M'Naghten rules is connected with mens rea. A person who does not know the nature and quality of his act can not be said to have intended that act. A person who does not know that he is stabbing another human being (perhaps because he thinks that he is stabbing a piece of furniture) does not know that nature and quality of his act and so does not intend to kill. But the second limb of the M'Naghten rules, which focuses on whether the accused was aware of the wrongfulness of his or her actions, is not connected with mens rea. This point is made by Glanville Williams, Text Book of Criminal Law (1979) at page 594 when he says:

"the only one of the M'Naghten Rules not going to mens rea as that is now understood is question 2, relating to knowledge of wrong".

59 The same point is also made by Hosking J in Piper where he says, after referring to a number of authorities: "in my view these authorities show that the defence of mental illness does not operate only to negative the kind of guilty mind that the Crown must establish to prove relevant intent. The first limb of M'Naghten might operate in this way, but the second limb does not . A failure to understand that an action is morally wrong does not negate intent" (emphasis added) The basis of the mental illness defence is a lack of moral blame.

60 The basis of the mental illness defence is a lack of moral blame. As I said in R v McMahon [2006] NSWDC 81 at [5]: 5. It is a fundamental rule of the criminal law, and indeed a fundamental mark of a civilised society, that people are not punished for actions over which they have no control. In Rethinking the Criminal Law Professor George Fletcher asks rhetorically (at 844): "What is the theory of political authority that justifies the state's intervention against someone who has committed a blameless act?:

61 In Piper, Hosking J quoted a passage from O'Connor v The Queen (1980) 146 CLR 64 at 96 - 97 per Stephen J: "for criminal liability to be incurred (cases of strict liability and culpable negligence always apart) civilized penal systems have, in modern times, insisted that the accused should be shown to possess a blameworthy state of mind".

62 As Stephen J noted there are exceptions to this principle. A glaring example is to be found in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1. But it would be remarkable to expose the blameless to imprisonment for up to 14 years.

63 It is the Crown's position that Parliament must have intended those who are not morally blameworthy to be liable to conviction of an offence under s 52A by reason of the fact that the section does not require the Crown to prove that the accused knew that his or her manner of driving was dangerous. But this ignores the fact that the Crown must still prove that the accused was driving voluntarily and it is hard to describe a person who drives in a manner which is objectively dangerous as "morally blameless" if they fail to perceive that that is the quality of their driving.

64 And, given as I have just said that the Crown must still prove that the accused's driving was voluntary, it is hard to see what policy reason there would be for allowing a person who had no control over their actions because they were acting involuntarily a complete acquittal and not even allow a conditional acquittal to a person who had no control over their actions because they did not appreciate the wrongfulness of what they were doing.

65 The result is that I have found, as a matter of law, that the accused in this trial can be acquitted on the grounds of mental illness if he satisfies me on the balance of probabilities that he was labouring under a defect of reason caused by a disease of the mind as a result of which he either did not know the nature and quality of his act or he did not know that it was wrong.

66 I have earlier in this judgment noted that the crown conceded that if I found that the defence of mental illness was available then it would follow that the accused succeeded in establishing it, because of the uncontested evidence from both psychiatrists that he suffered from a disease of the mind as a result of which he did not know that what he was doing was wrong, in other words the Crown conceded that the accused satisfied the second limb of the M'Naghten Rules. This is the case whether the accused knew that he was driving the wrong way down the road or not. The uncontested evidence was that if the accused knew he was on the wrong side of the road then he did not know that was wrong because of his perceived need to escape the demons who were after him, and if he did not know he was on the wrong side of the road then as far as he was concerned he was not doing anything which could be wrong.

67 Accordingly my verdicts are as follows. Count one - not guilty. Count two - not guilty by reason of mental illness Count three - not guilty. Count four -not guilty by reason of mental illness.

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