Regina v Barton

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0356/66 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60304/03

GROVE J DUNFORD J KIRBY J

Thursday 8 July 2004 REGINA v NEIL FRANCIS BARTON

Judgment 1 GROVE J: This is primarily an appeal against conviction following a trial before McGuire DCJ and a jury in the Sydney District Court. The hearing of the appeal extended over several days and involved the receipt of evidence as well as argument in support of grounds of appeal. Some of the grounds were subdivided to reflect multiple aspects of contention. The appellant has been in custody since the jury verdicts on 26 July 2002. As I have concluded that there should be an order for new trial upon the indictment I propose to record my reasons without dilating upon every facet of argument canvassed at the hearing in order to avoid the delay which elaboration would entail. 2 At material times the appellant was employed as a youth worker at Keelong, an institution at which young males of ages between approaching teen years to just beyond mid teen years were detained. Detention occurred for a variety of reasons applicable to individuals but it is fair to classify them all as sufficiently disturbed in some way or another as to require that detention. The activity which led to it included conduct ranging from serious misbehaviour to criminality. 3 At the trial, the charges preferred against the appellant alleged sexual misconduct in respect of seven youths during a period spanning 1985 to 1991. The appellant was charged in early 2000. The complainants and others who were juveniles at material times have different forenames and it will appropriately identify them for present purposes to use them and at the same time achieve appropriate anonymity. One complainant (Dean) failed to attend the trial and the charge relating to him was the subject of verdict of acquittal by direction. 4 The evidentiary material adduced before this Court was, in a broad sense, directed to two matters. 5 First, evidence that might have been considered for the purpose of a ruling in response to an application for separate trials in respect of the allegations of each complainant, and second, the conduct of the trial by lawyers then representing the appellant. The appellant is differently represented on the appeal. 6 The learned trial judge published reasons for his refusal of separate trials on 3 July 2002 and I will not seek to epitomize his judgment but will make any needed reference in dealing with the grounds of appeal.

Ground 1 7 The joint trial on the counts in relation to all of the complainants caused a miscarriage of justice.

(a) this was not pressed. (b) His Honour erred in refusing the separate trial application and allowing the evidence of each complainant to be used as tendency evidence in support of the evidence of the other complainants. (c) His Honour erred in admitting the evidence of the witnesses (Kelly) and (Jesse) as tendency evidence. (d) His Honour erred in admitting the evidence of Deborah Opie that the appellant had shaved the pubic area of (David) prior to surgery. 8 It was the Crown intention to rely upon the conduct anticipated to be testified by each complainant as tendency evidence and coincidence evidence, inculpating the appellant thereby. Requisite notices pursuant to the Evidence Act 1995 were given. 9 His Honour listed what he found to be matters potentially relevant to these issues as they concerned all complainants or groups of complainants. He did not address discretely significantly different and more serious conduct alleged by two individual complainants (Anthony and Anton). He treated the complainants as a single group. 10 On the issue of tendency, it was in this case necessary to ask whether allegations of conduct of a lesser degree of seriousness (I emphasize that I am referring to degree and not suggesting absence of seriousness) such as watching the boys whilst they showered, being alone in their cabins with them, touching their bodies including genitals whilst applying lotions for skin disorders or, on one occasion, examining an anus for haemorrhoids (Ricky, Danny, Khaled and Jason) should be admitted as probative of allegations of masturbation, fellatio and anal intercourse (Anthony and Anton). 11 The evidence of acts of the lesser degree of seriousness can only be admissible as tendency evidence in proof of the more serious acts if they have probative value substantially outweighing their prejudicial effect. That this involves a balancing exercise in each individual case cannot be disputed: R v Ellis [2003] NSWCCA 319. But the precautions concerning what was previously termed propensity and similar fact evidence do not cease to have validity. The aims of common law and statute are identical in the sense that they are directed towards safeguards against possible wrongful conviction. 12 In Pfennig v The Queen 1995 182 CLR 461 it was observed in the joint judgment (Mason CJ, Deane and Dawson JJ) @ 487-8: "Because propensity evidence may well have a prejudicial effect which is disproportionate to the probative force of that evidence, it is necessary to maintain an insistence on that evidence having a high level or degree of cogency in the circumstances of the particular case. In this context, the reference to prejudicial effect is a reference to the undue impact, adverse to an accused, that the evidence may have on the mind of the jury over and above the impact that it might be expected to have if consideration were confined to its probative force. Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect in the sense explained. That is because the ordinary person naturally (a) thinks that a person who has an established propensity whenever opportunity arises has therefore yielded to the propensity in the circumstances of the particular case and (b) may ignore the possibility that persons of like propensity may have done the act complained of. Hence, the necessity to find something in the evidence or in its connexion with the events giving rise to the offences charged which endows it with a high level or degree of cogency. "

13 Their Honours later remarked, in connection with that case: "The pattern of similarity, underlying unity or 'signature' common to both incidents would have resulted in such a degree of cogency that the probative force of (particular) evidence would have outweighed its prejudicial effect ……." 14 The learned trial judge did not discriminate between the actions of lesser and those of greater degree of seriousness. Between the two assemblages of described conduct, there was no discernible pattern or "signature". There must have been a real risk that the jury would conclude guilt on the basis of a general impression that the appellant had some sexual interest in the complainants rather than focussing upon the necessity for proof of the actual offences charged. Whilst evidence of such an interest could well be probative in the sense of rebutting suggestions of misapprehension on the part of the complainants or of accidental touching, it could not have that quality when considering the very serious allegations concerning Anthony and Anton. The same conclusion is reached whether the evidence is looked at in terms of tendency or coincidence. 15 At least to the extent that a trial in respect of Anthony and Anton should have been separated from trial in respect of the other four complainants, this ground is made out. 16 At any new trial, it will be for decision by the presiding judge whether circumstances require further separation. 17 As stated, ground 1 (c) relates to the evidence of two witnesses, Kelly and Jesse. Both of these gave evidence of (uncharged) acts upon them by the appellant which acts amounted to sexual assault and/or acts of indecency. No statutory notice of their evidence as tendency or coincidence evidence had been given. It does not appear that the Crown sought any ruling from the trial judge in regard to it. However, in his summing up, his Honour invited the jury to consider the evidence both as demonstrating tendency on the part of the appellant and as amounting to coincidence inculpatory of the appellant. 18 The descriptions of activity by these witnesses offer the same contrast as between the two groups of complainants which has been discussed in connection with the previous ground. Both in respect of the failure to serve requisite notice and to make the necessary discrimination, this ground is made out. 19 Ground 1 (d) challenges his Honour's ruling that the probative value of the evidence of one Deborah Opie outweighed its prejudicial effect. Ms Opie was a senior youth worker at Keelong between 1983 and 1987 and as such was the appellant's superior. 20 Over objection, evidence was admitted that the appellant had told her that he had shaved the pubic area of a detainee (not one of the complainants nominated in the charges in the indictment). This detainee was scheduled for surgical removal of a testicle. It did not appear to be disputed that shaving would be necessary for that surgery to be undertaken. 21 The appellant had had previous employment as a wardsman in a hospital. He has since qualified as a nurse. Ms Opie's evidence also canvassed a belief on her part that the appellant had had some general nursing experience and it appeared to be common knowledge that he attended to what were described as medical matters with detainees. The expression "medical" was frequently used, however I would comment that the descriptions would in my view be more accurately referred to as health or hygiene matters. 22 In response to the objection, his Honour ruled that the probative value exceeded the prejudicial effect and that the evidence was admissible. In written submissions in this Court the Crown has contended: "the evidence of (what the appellant said to Ms Opie) arose in the context of the appellant's conduct as a 'nurse' and things the appellant recounted to Ms Opie as having been done in that capacity. It was not relied upon to support the existence of tendency or coincidence. The evidence was of little significance and was of no consequence in the determination of the appellant's guilt." 23 The submission does not identify what the relevance of the evidence was to the charges upon which the appellant was indicted. In that absence it is difficult to know what use the jury may have made of it. His Honour made reference to the testimony of Ms Opie during his summing up but not to the particular aspect of it, now the subject of complaint.

In my view the evidence fails the basic test of relevance. It is irrelevant to offences of sexual assault that on an occasion the appellant told the supervisor that, prior to a scheduled operation for which shaving was obviously appropriate, he had done so.

Ground 2 24 (a) There is evidence, not led at the trial suggesting contamination of the evidence of the complainants and the witnesses (Kelly) and (Jesse). (b) The failure to lead that evidence at the trial caused a miscarriage of justice.

Ground 3 25 (a) There is evidence, not led at the trial, bearing upon the credibility of the complainants and (Anton), (Jason) and the youth worker John McMillan. (b) The failure to lead that evidence, or to cross examine them on this led to a miscarriage of justice.

Ground 4 26 (a) There is evidence, not led at the trial, relevant to the issue of the policy of youth workers entering residents' rooms alone. (b) Failure to lead this evidence or cross examine on it was a miscarriage of justice. 27 Ground 3 (a) was not pressed in respect of the youth worker John McMillan. 28 Ground 2 is founded upon evidence said to be capable of demonstrating that the testimony of the complainants may have been tainted by concoction or may be contaminated. A considerable volume of the evidential material presented at the hearing of the appeal related to these matters. As stated, ground 3 raises matters claimed to bear upon the credibility of the complainants Anton and Jason. Ground 4 refers to a policy concerning youth workers entering the rooms of detainees alone with particular reference to a memorandum under the hand of Mr L. Guilfoyle dated 22 August 1989. Mr Guilfoyle had been superintendent of Keelong at relevant times. None of the matters sought to be raised under these grounds was, as stated, led at trial. Nor were they otherwise explored. 29 A sketch of some background may be useful. The appellant's trial was originally set down to be heard in Wollongong District Court. Whilst that was the case there had been, at least informal, indications on behalf of the Crown that separate trials in respect of the complainants were contemplated. Originally investigations concerning some fourteen previous detainees were involved. In March 2002 the venue of the trial was changed to Sydney and at this time charges involving twelve former detainees were nominated as the likely subject of trial. At this point, the Crown informed the appellant's representatives that there would not be consent to separate trials. 30 Although an intention to proceed in respect of twelve complainants was confirmed in writing about a week before the scheduled trial date, a final indictment referring to seven complainants was eventually presented. As above mentioned, this was effectively reduced to six as a result of the non appearance of one complainant. 31 In the light of my conclusion that there must be a new trial, it would not seem profitable to pause to elaborate all the extensive detail upon which the appellant now seeks to rely and presumably would seek to rely upon at any new trial. Investigation on his behalf has revealed some contacts between various complainants (some nominated in the indictment counts, others not) and intention to advert to these circumstances has been signalled. Whether such material will be used in support of a fresh application for separate trials (of individuals or groups of complainants) or used in the trial proper or both, is a matter for determination by the appellant's representatives. These are not matters suitable for pre-determination on assumed circumstances which may or may not prevail at a new trial. 32 It should be recorded that the appellant's former representatives did make enquiries in order to ascertain whether there were overlapping periods of custody at Keelong of various complainants and the result of their enquiries did not appear to offer advantage to the presentation of the appellant's case. 33 What is now contended should have been raised, covers a number of aspects. There is a complex calendar of contacts between various complainants and asserted link persons. 34 The memorandum by Mr Guilfoyle was in fact addressed to "the Regional Director", I assume of the government department responsible for Keelong. The memorandum reveals knowledge that a number of children were organizing a petition alleging that, in some way, the appellant had been "perving" on them. This has similar tone to complaints of being watched in the showers. The memorandum continues that questioning of the detainees showed that what was essentially involved was a claimed feeling of discomfort when the appellant entered a room while they were showering. There was no specification of days, times or dates when this happened. Mr Guilfoyle became aware that there was a rumour that a petition about the appellant was being organized and he noted that there were individuals who had been "caught" by the appellant with contraband either on their person or in their rooms. The rumour obviously provoked enquiry by Mr Guilfoyle and one detainee admitted to him that he had been involved in what was an attempt to "get" the appellant. 35 The memorandum also pointed out the practical impossibility of implementing a policy of staff not entering rooms alone owing to the overall small number of staff. Also discussed in the lengthy memorandum were protocols regarding first aid, medication and the like and the need for personal search. Mr Guilfoyle commented that the lastmentioned was not provoked by fancy and he recorded that a considerable arsenal of weapons and stores of drugs had been collected from detainees particularly when they returned from unsupervised leave. 36 A considerable amount of the content of this memorandum is contradictory of evidence concerning applicable policies and protocols which former staff members testified to. This was not evidence called by the Crown in fairness to the appellant but was directed towards his inculpation. It is readily apparent that contradiction of this evidence from a source such as the superintendent was of high potential value to the defence case. 37 Post trial investigations by the new representatives of the appellant have confirmed that the complainants were sought out by police. These police belonged to an organization entitled Strike Force Cori which had been set up to investigate wide ranging allegations about paedophilia made by a parliamentarian in 1997. It is contended that it ought to have been revealed to the jury that the complainants did not come forward spontaneously but were located by an organization specifically looking for misconduct of a particular type. It would therefore be argued that there was a reason to doubt the credibility of the allegations. An exception to this circumstance was the complainant Jason who did come from his room and make a very spontaneous and public complaint. However, this particular complaint was later acknowledged by him to be based upon what may have been, in effect, a mistake on his part. 38 There are matters now raised about which particular cross examination might be undertaken. It is now known that Anton (one of the two makers of what I have earlier classified as more serious allegations) had, prior to making allegations against the appellant, made a false allegation of sexual interference against another youth worker at Keelong. There is material to contradict evidence which he gave at trial that what was done to him by the appellant was his initial sexual experience. Whether that evidence can be used would depend upon the Crown again leading evidence from Anton (as was done) that the appellant's acts were Anton's "first time". At best, therefore, the material now raised is contingent. 39 The appellant's representatives are now seized also of information concerning evidence given and conduct by Jason in a lengthy and highly publicized defamation trial. The evidence at that trial related to sexual matters. Again, whether such material could be used or would be of any value, can really only be determined in the context of a trial. 40 The foregoing is far from including reference to the complete detail of the cascade of matters now suggested to have caused miscarriage by not being raised. It would cause considerable delay to analyse individually every matter in terms of whether it could have been discovered with reasonable diligence before the trial. If, as I have concluded that there is to be a new trial, the matters are now known and can, if appropriate, be raised then. For the same reason, neither have I paused to deal with complaints concerning the extent of disclosure by the Crown nor the Crown's response to those complaints. 41 I am not convinced that the matters argued in support of grounds 2, 3 and 4 would, in the absence of other grounds, lead to a conclusion that the trial miscarried. Nevertheless, to the extent that argument should be sustained, there is a cumulating effect supporting the conclusion that new trial is necessary. However, as I have said, the "newly discovered" material is available and it is of no practical benefit to express views about matters which will need to be judged in the context and circumstances of a new trial which may well be very different. Should matters be raised, they will be dealt with by the presiding judge accordingly. 42 Ground 5 was not pressed.

Ground 6 43 His Honour erred in his directions in relation to tendency evidence and relationship evidence by:

(a) Failing to direct the jury that, before they could use tendency evidence as proof of the offence as charged, they must find that evidence established beyond reasonable doubt. (b) Failing to distinguish between tendency evidence and evidence of the relationship between the appellant and the complainant. (c) Directing the jury that evidence of sexual impropriety by the appellant with persons other than the complainants could be treated as evidence of the relationship between the appellant and the complainant. (d) Giving confusing directions about the tendency evidence and relationship evidence and the use which might be made of that evidence. (e) The trial judge erred in his directions on coincidence evidence. 44 As is apparent this ground is directed towards his Honour's summing up to the jury in particular. 45 Argument advancing this ground involves reference to extensive passages of the summing up and little point will be served by recitation. Ground 6 (a) is expressed in terms of requiring specific direction, however, it was conceded that a jury would be required to find tendency proved beyond reasonable doubt in cases where they found that evidence to be an indispensable link in a chain of reasoning leading to a conclusion of guilt. It follows that it is not a requirement to so direct in every case. There was no application to his Honour to give such a direction in this case. Rule 4 of the Criminal Appeal Rules applies. I would refuse leave to rely upon this part of the ground. 46 Grounds 6 (b), (c) and (d) focus upon instructions to the jury concerning tendency and relationship evidence. No doubt tendency and relationship are discrete concepts. The written submissions recite at length the relevant passages in the summing up. I am unpersuaded that appealable error has been demonstrated except to the extent that, as was acknowledged by the Crown in its submissions, his Honour included the evidence of Jesse and Kelly (who are not complainants in respect of indicted counts) when inviting the jury to deal with evidence of relationship. The evidence of these witnesses was called as tendency and coincidence evidence although, as I have previously mentioned, no statutory notices were given. It was appropriate for the concept of relationship between the complainants and the appellant to be the subject of direction but not so between these witnesses and the appellant. 47 Ground 6 (e) complains of this passage in the summing up: "Ladies and gentlemen, you are aware that there is no suggestion whatsoever that those complainants ever got their heads together, that they ever discussed these matters together. Indeed, they were not resident at the same times. Accordingly, it would be against common sense and certainly not in accordance with the evidence by which you are bound, that the accusations were raised as a result of some coercion or collusion." 48 Putting to one side the matters now said to have been discovered and which were not raised at trial, the instruction nevertheless inevitably implied that it had been accepted on behalf of the appellant that there had been neither concoction nor contamination. I note that his Honour's expression was "coercion or collusion" but the effect is comparable. Whilst it does appear that the appellant's representatives considered that they were not in a position to call evidence about such matters, it was not the case that absence was conceded. Complainants were in fact cross examined about being influenced by gossip, police questioning and discussion amongst themselves. Ground 6 (e) is made out.

Ground 7 49 His Honour failed adequately to warn the jury about their assessment of the evidence of the complainants.

50 The appellant's argument recognized that his Honour had given extensive directions about the complainants. In particular he canvassed, where appropriate, the issues of delay in complaint and the backgrounds of the complainants including an observation: "…… you might consider significant the criminal or uncontrollable conduct as affecting their credibility". 51 The essence of submission was that what was said amounted more to comment than warning. That was apparently not the impression received by those who were able to assess the atmosphere at trial. No application for supplementary direction was made. The written submissions incant that failure to seek directions cannot be fatal to success of an appeal if it appears that there has been a substantial miscarriage of justice. Of course, that is so. However, the matters raised under this ground do not so demonstrate.

Ground 8 52 The fact that the appellant did not give evidence at trial caused a miscarriage of justice.

Ground 9 53 The failure to lead evidence of the good character of the appellant led to a miscarriage of justice. 54 Evidence was presented to this Court concerning the decision that the appellant not give evidence at trial. In short, the appellant said that he accepted the guidance of his legal representatives. I accept that this was so. On this aspect the views of counsel were predominant although there is no suggestion that the solicitor held any different view. Counsel acknowledged that his advice was for the appellant to exercise his right to silence but he asserted that his advice was significantly affected by some information given to him by the Crown Prosecutor. The Crown Prosecutor also gave evidence in this Court. 55 The critical information related to surveillance of the appellant by police. On the afternoon of Friday 10 October 1997 (the last date specified in any indicted charge is 3 August 1991) police observed the appellant leave his home, drive his car to a service station and purchase petrol and then drive to park it in the vicinity of the Fairymeadow Surf Lifesaving Club. He was seen to enter the men's toilets at that club on some four occasions. The surveillance officers (the names of four are recorded) also saw other men come and go from that facility from time to time. 56 There was conflict between defence counsel and the Crown Prosecutor concerning what was said. I accept that both of them were honest in their testimony about their different recollections of the content of exchange between them. I am satisfied that the Crown Prosecutor did not seek to mislead her opponent and that his belief now about what was said is a recollection in respect of which he has become subjectively convinced over time. Any problem of his misunderstanding was exacerbated by failure to seek to inspect the surveillance material about which he was told. It is the Crown Prosecutor's recollection that she informed her opponent that she was in possession of surveillance material which she may seek to use if the appellant raised character in terms such as asserting that he was a married man with no homosexual tendencies. Defence counsel recalled that she told him that she had surveillance video tapes showing the presence of the appellant in what were now described as something like meeting places for homosexuals. It is now known that there was surveillance and there were pictures, that is to say photographs, and it seems to me quite possible that a combined mention of surveillance and pictures was simply presumed by counsel to mean moving pictures and more than one occasion. 57 That defence counsel had the (mistaken) impression that surveillance related to more than one occasion is corroborated by the use of the plural in a reference to the matter in written submissions which were obtained from the appellant concerning the election not to give evidence. 58 In fact the prior good character of the appellant was raised on behalf of the appellant by adducing from Crown witnesses the absence of any conviction and also opinions from witnesses who knew him at work that he was a trustworthy and devoted youth worker. An appropriate direction on this aspect was given by his Honour. 59 The complaint raised under ground 9 adverts to a large number of witnesses who were available to be called to testify in positive terms to the appellant's good character. These witnesses would not, as was the case of Crown witnesses, have the strength of their testimony undermined by other criticism of the appellant, for example, in their opinions about his disobedience of a policy which inhibited entry alone into detainees' rooms. As I have earlier mentioned, that opinion is somewhat inconsistent with what is now known to be contained in the memorandum authored by the superintendent Mr Guilfoyle. Of course policies are not set in concrete and questions could arise as to what policies were promulgated and when. 60 Responsibility for the decision not to call these witnesses rests upon defence counsel as it does effectively in respect of the decision that the appellant not give evidence. Counsel candidly accepted that his advice to his client was to the effect that he should not give evidence although it was to a marked extent inspired by his erroneous belief concerning the use that might be made of (what he thought was) the surveillance evidence either by way of cross examination of the appellant or by its being called. He was also concerned by a lack of knowledge as to what use was intended to be made of the content of a departmental enquiry file focussed upon the appellant. 61 As it is in the circumstances hypothetical, a decision on the admissible use of the surveillance evidence is not called for, however I would comment that, given present knowledge of exactly what was surveyed and when it was surveyed, it is difficult to see how such material would permissibly be used either for cross examination of the appellant or for tender. 62 Although grounds 8 and 9 are not so expressed, the argument on behalf of the appellant centred upon challenge to the competence reflected in the decision by defence counsel in both these regards. The ultimate question when such a ground (as implied) is raised, is whether there has been miscarriage of justice and the determination of this must lie upon the fact that some evidence could have been, but was not, placed before the jury. That such evidence existed in this case is plain and the question is therefore what test needs to be fulfilled to attract the intervention of this Court. 63 Senior counsel for the appellant observed that tests had been articulated in terms of perceiving "flagrant incompetence" (R v N [2003] QCA 505), "could there be any reasonable explanation for not calling the evidence" (TKWJ v The Queen 2002 212 CLR 124 per Hayne J) or "any reasonable barrister would have so advised". 64 It was submitted that, however expressed, the test was fulfilled in this instance. In determining to advise his client that the preferable option was to remain silent, counsel misjudged the possible effect of surveillance evidence which he had not sought to examine. It might be noted that, when confronted with knowledge of what was actually involved he expressed the opinion that it would have been of "no weight". Insofar as there was any understanding that the surveillance material (as he apprehended it) might be used if his client raised character in terms of disinterest in homosexuality, he did not appropriately consider, and did not advise the appellant, that he could give evidence but refrain from making any such claim. Counsel also took into account the content of the departmental enquiry, to which I have made only passing reference, but counsel did not ascertain just what content could be, or was asserted by the Crown to be, germane to the issues at trial. 65 On the issue of not calling available good character witnesses it does appear that counsel limited his attention to obtaining a standard direction from the trial judge. This is a compounding matter. Had the appellant given sworn evidence denying the offences (as his instructions to his representatives maintained) it could be judged that there was a significant possibility that the evidence of the appellant would raise a doubt about the credibility of the complainants, particularly when the judge had been impelled to draw attention to their disturbed, and in some cases, criminal backgrounds: cf R v D 1996 86 A Crim R 1. 66 I consider that the appellant's submissions on these grounds have been made out. The matters do not require further elaboration, having regard to the conclusion that I have already expressed, the issue of what witnesses (including the appellant) are to be called will be determined in the context of a new trial. 67 As an alternative, the appellant sought leave to appeal against sentence. In the light of my opinion as to the outcome of the appeal against conviction it is unnecessary to deal with this matter. That should not be understood as endorsement of the sentences imposed or the submissions advanced by the appellant and the Crown in regard to them. 68 I would allow the appeal against conviction, quash the convictions and sentences in the District Court and order a new trial upon the counts of the indictment upon which the appellant was convicted. 69 DUNFORD J: I agree with Grove J. 70 KIRBY J: I agree with Grove J.

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