Ash v the Queen
[2011] VSCA 112
•15 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 129 of 2010
| JOHN WILLIAM ASH |
| v |
| THE QUEEN |
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| JUDGES | NEAVE, REDLICH, HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 4 April 2011 |
| DATE OF JUDGMENT | 15 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 112 |
| JUDGMENT APPEALED FROM | R v Ash (Unreported, County Court, Judge Wood, Date of Verdict: 16 March 2010, Date of Sentence: 7 May 2010) |
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CRIMINAL LAW – Conviction – Applicant found guilty of sexual penetration with a 16 or 17 year old child under his care, supervision or authority – Acquitted of other counts of sexual offending against same victim – Transposition of count numbers in charge – Jury not mistaken or confused – Verdict not unsafe and unsatisfactory – Ample evidence supporting conviction despite acquittals – Guilty verdict not inconsistent with acquittals – Open for jury to reject complainant’s account in part – MFA v The Queen (2002) 213 CLR 606; R v TK (2009) 74 NSWLR 299, applied – Application dismissed.
CRIMINAL LAW – Sentence – Whether manifestly excessive – Good character – Lack of prior convictions – Low-risk of re-offending – Position of authority – Vulnerable victim – Offending caused lasting harm – Application dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Brian Birrell |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
The applicant, John William Ash, was convicted of one count of sexual penetration with a 16 or 17 year old child under his care, supervision or authority[1] (count 6) by a majority verdict of a County Court jury. The jury unanimously acquitted him of two counts of indecent act with a 16 year old child under his care, supervision or authority (counts 1 and 5) and three other counts of sexual penetration with a 16 or 17 year old child under his care, supervision or authority (counts 2, 3 and 4). All of counts on the presentment involved alleged sexual acts against the same complainant, ACL. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the applicant to 18 months’ imprisonment, 12 months of which was suspended for a period of two years.
[1]See Crimes Act 1958, s 48(1).
The applicant seeks leave to appeal against conviction and sentence.
Background
The Crown case was that all of the offences occurred when ACL, then aged between 16 and 17, was living with the applicant and his wife. She had moved into the applicant’s house after her mother had told her to leave home after they had an argument. ACL was a student at the school where the applicant, who was then aged between 44 and 45, was a teacher. He had taught the complainant various subjects in the four years before the offences occurred.
The defence case was that none of the offences had occurred and that the complainant’s accusations were the result of a ‘schoolgirl fantasy’.
The complainant’s evidence was that, after she began living at the applicant’s home, the applicant would regularly drive her to and from school, and that she often went with him when he drove to other places on the way home from school. Count 6, the sole count on which the applicant was convicted, occurred when the applicant took the complainant to the block of units owned by him and his wife, that he was renovating. (The applicant taught trades subjects at the school and it was not disputed that he frequently worked on building projects after school finished.)
The complainant said that the applicant took her to a unit rented by another teacher. The unit was towards the front of the block, but the room that they went into faced the back of the property and the street could not be seen from it. The applicant had a key to the unit and they went inside and had sexual intercourse on the floor, without undressing. The applicant had told her that he loved her and wanted to know if she felt the same way and she had told him that she loved him too because she felt awkward and knew that was what he wanted to hear. On other occasions, the applicant had told her that she was ‘stunning’, that he wanted to give her a car and take her to Tasmania, and that he had an open marriage.
The applicant’s evidence was that he had never accompanied the complainant to the block of units, but that the complainant had been present during family conversations and learned that he had been renovating them.
Because the applicant alleges that the acquittals on counts 1 to 5 were inconsistent with the conviction on ground 6, it is necessary to briefly describe the evidence relating to these counts as well.
The complainant’s evidence was that when she and the applicant got home from school they would often sit down at the dining room table and talk. The applicant called Gregory Meagher as a witness. Mr Meagher said that, in 1992, he and the applicant worked on building projects after school. Mr Meagher would go to the applicant’s house after he finished work and they would have a coffee at the applicant’s house together, before leaving to do building work. Sometimes they worked two to three days a week but usually three to four. He had seen the complainant there on two occasions.
Count 1 (indecent act with a 16 year old child under the care and supervision of the applicant) was said to have occurred after the complainant began crying during an after-school conversation with the applicant. She said that the applicant kissed her, carried her to the sofa in the den which she was using as a bed and lay on top of her and continued kissing her. He then left the room suddenly. The complainant said she had run down the road to the caravan park where her friend, Cherie Moore, lived, and told her that the applicant had kissed her.[2] The applicant had later picked the complainant up and questioned her about whether she had told her friend what had happened. The complainant had said she had not done so. Ms Moore could not recall the caravan park conversation, but gave evidence that, on one occasion when they were in the school yard, the complainant had told her that she had had sex with the applicant.
[2]The judge gave directions about the use of this evidence.
Count 2 was said to have occurred when the applicant woke the complainant one evening when she was asleep in her bed on the sofa in the den. The complainant alleged that the applicant was wearing jeans which he pulled down and he either told her or she saw that he was wearing a condom. He then penetrated her vagina with his penis. In cross-examination, she said that she froze when this happened and had not told anyone about it.
Count 3 was said to have occurred when the applicant took the complainant upstairs where all the bedrooms were located. The complainant said he led her into his daughter’s bedroom, laid her down on his daughter’s bed and had vaginal intercourse with her. They did not undress but their clothes were around their knees. In cross-examination, the complainant said she thought the bed was a single bed.
The applicant’s wife, Audrey Ash, his daughter, Kirsten, and her friend, Carla Telford, gave evidence that Kirsten and Ms Telford (who was living with the Ash family at the time) had slept in the double bed in Kirsten’s room which did not have a door on it.
Count 4 alleged that the applicant inserted his penis into the complainant’s mouth and she ‘gave him oral pleasure’. This conduct was also alleged to have taken place in the den, but the complainant did not recall at what time of the day this act occurred.
Count 5 alleged that, on an occasion after school, the applicant and the complainant had been kissing when the applicant placed his chin on her vagina, over her underpants. Again this was said to have taken place in the den, while both the applicant and the complainant were clothed.
In cross-examination, the complainant said that the den in which counts 1, 2, 4 and 5 occurred opened off the foyer area of the house and that the door was always open. There was a large window facing the front yard. The complainant said she could not remember if there were curtains or blinds but did not recall ever closing them. She said that she had slept on a free-standing couch covered with leather or vinyl, which was close to the window. There was no dispute about the position of the den or the fact that the door was kept open. However, the applicant, his wife, his daughter and Ms Telford gave evidence that the couch was a modular one, covered with a velour material. The applicant’s evidence differed from his statement in his police interview that there was a leather couch in the den.
As I have said, the applicant denied that any of the alleged acts had occurred. In examination-in-chief, the applicant, his wife, his daughter, and Ms Telford said that the complainant had arrived on approximately 16 May 1992 and remained until about the end of June.[3] Mrs Stannard, an old friend of the complainant and his wife, said that she and her husband were having dinner with the applicant and his wife when the complainant phoned the applicant and that this occurred close to Mrs Stannard’s birthday which was on 16 May.
[3]In his police interview, the applicant said that the complainant stayed for ‘[t]wo months, three months or thereabouts’.
The complainant and her mother said that she had gone to stay with the applicant and his family earlier in the year than May (they could not recall the precise date), and that she had stayed with the applicant and his family for some months.[4]
[4]R v Ash (Unreported, County Court of Victoria, Judge Wood, 7 May 2010) (‘Sentencing Reasons’), [6]. The period in which the counts allegedly committed in the den took place, according to the Presentment, extended to 29 July 1992.
According to the complainant and her mother, she had little contact with her mother while she was living with the Ash family. They denied that the mother had visited the complainant at the applicant’s house or that the complainant had stayed with her mother at weekends or overnight, although they agreed that the complainant had gone to her mother’s house on some afternoons after school, so that her mother could fit her with a dress for her debutant ball.
The applicant and his wife said that the complainant’s mother would pick up the complainant from their house about twice a week during school periods and that the complainant had gone home at weekends. Mrs Ash said that the complainant was away from their house three or four nights a week and had told Mrs Ash that she was staying at her mother’s house.
The applicant and his wife and daughter said that their daughter and son and Ms Telford were all living in the house when the complainant was there. The defence led evidence about the working hours of these witnesses in order to show that they were likely to have been about the house at times when the complainant said the alleged offences had occurred. Ms Telford said that she was residing at the Ash family home at the same time as the complainant. The complainant said that, while she was staying with Mr and Mrs Ash, she had met their son on a few occasions and their daughter at weekends, and had met their daughter’s friend, Ms Telford twice, but that Ms Telford was not living in the house while she was there.
In cross-examination, the applicant said that he could not recall ever being alone in the house with the complainant ‘without family members or someone else being in the house with her’. When asked why he would not go into the house if that meant being alone with the complainant, he responded that, while the complainant was living in his house, his wife had had a conversation with Detective Senior Sergeant Barry Stephens, who had made a comment ‘at the time about her making an accusation against another person and [that] she couldn’t be trusted’. The applicant testified ‘that is the reason we were concerned about my son and myself being in the house alone with her’.
The applicant had not referred to this matter in his police interview, at committal or in the first trial, which was aborted when it became apparent that a member of the jury knew one of the witnesses. After hearing evidence from Mrs Ash and Mr Stephens[5] on a voir dire, the trial judge ruled that the Crown could call Mr Stephens and further cross-examine Mrs Ash about this conversation.
[5]Since retired.
Mrs Ash’s evidence was that she had had a single conversation with Mr Stephens which had occurred after the complainant had been living with them for a couple of weeks. It was put to her that Mr Stephens had never said anything about a previous accusation made by the complainant to the police. She said he had told her there had been ‘issues’ involving the complainant and another person:
He knew of her, he knew that there had been some problem or some issue with another boy. He warned me not to leave her alone in our house with [her husband or son] and he said he’s had four daughters of his own, he would never have a young girl in his house alone with him.
She specifically recalled that Mr Stephens ‘knew of the complainant’. In re‑examination, she said she had told her husband that she ‘had been speaking to Barry Stephens and he had heard of [the complainant] and he had said to be very careful about being alone with her and she could not be trusted and to make sure that [her husband] and [their son] were not alone in the house with her’.
Mr Stephens’s evidence-in-chief was that he had had two conversations with Mrs Ash who had told him her husband was considering allowing a student to stay in the house (and not that the girl was already there). He said he had told her that he would not do it and that she should not let them be alone. However, he denied knowing the complainant at the time, or saying that she had complained about another person. He was not aware of any such complaint. Nor did he recall saying that the applicant’s son should not be left alone with the complainant.
It was not disputed that, in late June or late July 1992, the complainant moved into a unit in Rea St occupied by Helen Shepherd (nee Phillip) and her boyfriend Jeffrey Dolheguy, after an advertisement had been placed in the local newspaper on the complainant’s behalf. The advertisement gave telephone numbers for the school and for the Ash’s residence. The complainant’s evidence was that the applicant had told her she would have to leave his home because his wife had seen them kissing. Mrs Ash denied that she had seen the applicant kissing the complainant and the applicant denied having said this to the complainant.
The complainant said that, while she was living in Rea Street, the applicant visited her frequently. Usually they sat in his car and talked. During that period the applicant had given her a gold watch, saying it was for her seventeenth birthday. Once, when she was inside the Rea St house with the applicant, who was kissing her, he had tried to persuade her to have intercourse with him. She had refused because she was ‘feeling stronger’ as she was no longer living in his house. There was another occasion when she had refused to let him in and he had been angry with her. She said that the applicant had opened a bank account for her and deposited funds in it.
The applicant denied giving her a gold watch or depositing funds in a bank account for the complainant. No bank records were available for the relevant period.
Mr Dolheguy said that he was contacted by the applicant, who said he had someone in need of accommodation, and was visited by the applicant and the complainant. He said that he recalled the applicant visiting the complainant while she was living in Rea St on two other occasions. On the first of these, the applicant had come to the house late in the evening and said he had wanted to talk to the complainant and they had talked in the lounge room. On the second occasion, the applicant was refused entry into the house because the complainant did not want to talk to him.
Ms Shepherd said that, after the complainant moved in, the applicant would visit her three or four times a week. He would usually talk to the complainant on the front veranda or in his car. On one occasion when she was looking through the blinds, she thought she had seen them embrace. Ms Shepherd confirmed that the complainant had told her that she and the applicant had had sex, and that the applicant had given her a gold watch, and said that she had taped a phone conversation between the complainant and the applicant in an attempt to record a confession.[6]
[6]There was no ground of appeal relating to the admission of this evidence.
The complainant gave evidence that she had told Daniel Powell, a school friend, that she had had sex with the applicant.[7] Mr Powell’s evidence was that he had confronted the applicant and that, subsequently, the applicant came to his house after school on a number of occasions to question him about the extent of his knowledge and to ‘say stuff’ about the complainant. He also said he had seen the applicant on two or three occasions sitting in his car outside Rea Street.
[7]Mr Powell recalled that, in late in 1992, he had questioned the complainant about her relationship with the applicant and she had admitted that she had a sexual relationship with him. The judge directed the jury as to the use of this evidence.
The complainant also said she had told a teacher’s aide, Denise Meehan, that the applicant was pestering her and had kissed her, but did not tell Ms Meehan that they had had intercourse because she was ashamed and embarrassed. Because Ms Meehan was unwell, a transcript of the evidence she had given at the earlier aborted trial was read to the jury. Ms Meehan did not recall the complainant saying anything about having a sexual relationship with the applicant, but said that she had spoken to the applicant about rumours of a sexual nature concerning the complainant and him and that he had responded that he was ‘just caring for the complainant in his family home’. Ms Meehan referred the matter to a school counsellor, Bruce Heppell, saying that she had some concerns, but not saying what they were.
Mr Heppell was called by the Crown. He said that he organised a meeting because he had heard that the complainant was living at the applicant’s home and was concerned that the applicant might be getting too personally involved and going beyond his duty of care as a teacher. The meeting was attended by the complainant, her mother and the applicant, but Mr Heppell could not recall what happened at the meeting. He said that it had never entered his mind that the applicant might be having a sexual relationship with the complainant. The complainant said that she was too embarrassed to talk about her concerns at the meeting.
A number of witnesses gave evidence of the applicant’s good character and his contributions to the community.[8]
[8]Mrs Ann Starritt, James Hoare, Kirsten Ash (the applicant’s daughter) and Emilio Fiorenza. Other evidence as to the applicant’s good character evidence was given on the plea by Sharyn Canobie and 10 references were tendered on the applicant’s behalf.
Conviction appeal
Ground 3
Initially the applicant relied on six grounds of appeal. The first two grounds were abandoned. The third ground of appeal was as follows:
3.There has been a substantial miscarriage of justice because there is a substantial possibility that the jury (or, in the alternative, one member or some members of the jury), in returning a majority verdict of Guilty on Count 6, may have been mistaken or misled concerning the count upon which, and/or the offence for which, they were returning that verdict.
PARTICULARS
(i)In his Charge to the jury, the learned trial judge on the two occasions on which he summarised the specific evidence given by the Complainant with respect to Count 4, erroneously identified it as Count 6;
…
(ii)In his Charge to the jury, the learned trial judge on the two occasions on which he summarised the specific evidence given by the Complainant with respect to Count 6, erroneously identified it as Count 4.
At the beginning of his jury charge, the judge referred to the indecent assault counts (counts 1 and 5) and then correctly described the sexual penetration counts in the presentment as follows: ‘the other four counts are counts of sexual penetration; three of them being Counts 2, 3, and 6 allege penile penetration of the vagina. Count 4 alleges that the accused man put his penis into the mouth of [the complainant] …’.
Later, his Honour again correctly said that counts 2, 3, 4 and 6 involved acts of sexual penetration of a child of 16 or 17 years of age and that: ‘As I have said in Counts 2, 3 and 6, it is alleged those acts were penile penetration of the vagina and, Count 4, penile penetration of [her] mouth’.
Unfortunately, later in the jury charge, his Honour went on to transpose the numbers of count 4 and count 6, although the accompanying description of the nature and location of the act differentiated between the act of penile penetration which allegedly occurred in the unit (count 6) and the act of oral penetration said to have occurred in the applicant’s home (count 4).
The first time that this transposition occurred followed his Honour’s summary of the complainant’s evidence that penile/vaginal intercourse had occurred when the applicant took her to the block of units owned by him and his wife during the day. He concluded this summary by referring to the complainant’s evidence that:
It was on the living-room floor of the unit some sort of near the window sort of in the corner of the room and we were laying down and I remember being on top of him when he was having communication with me about his feelings I was laying on top. We had intercourse, or his penis went in my vagina again that day’. This was the Count 4 that she is speaking about.
His Honour’s reference to count 4 should have been a reference to count 6.
His Honour then referred to the complainant’s evidence about count 5 (an indecent act which allegedly occurred in the den in the applicant’s home) and went on to say:
And then she is asked about Count 6. She is asked, ‘And did you remember an incident concerning your mouth?’ ‘Yes, I do’. ‘What was that?’ ‘Um I gave him oral pleasure. He had his penis in my mouth’. ‘And where did that occur?’ Answer: ‘In the den’.
Count 6 should have been described as count 4.
Later in the judge’s charge, when he was summarising the complainant’s answers in cross-examination, his Honour mistakenly referred to the fourth count as ‘being the incident at the flats or units’. The evidence to which he referred related to the act of penile vaginal intercourse said to have occurred at the units. He repeated the transposition of counts 4 and 6 by referring to the complainant’s cross‑examination on count 4 as pertaining to ‘the last count’, but then correctly summarised the complainant’s evidence relating to count 4, which alleged that she had fellated the applicant, in the den in his home.
In his closing address, counsel for the applicant did not refer to the count numbers at all. Counsel for the Crown referred to the fact that the jury had received the presentment and said he would go through it. In taking the jury through the presentment, he initially reminded them that ‘[c]ount 4 is the penis in the mouth’ and ‘[c]ount 6 is the penis in the vagina which occurred in the units’. However, later in his closing address, he transposed the count numbers in the same way that the judge had done, referring to count 4 as ‘the matters at the block of units.’ He then took the jury to the complainant’s evidence relating to the act of oral penetration in the den, which he mis-described as count 6. He recited the complainant’s evidence that ‘I gave him oral pleasure. He had his penis in my mouth’ and that this had occurred in the den, but that she did not remember the time of day.
In his submission at the hearing of the appeal, counsel for the applicant argued that there was a real risk that the judge’s error created confusion in the minds of jurors about the sexual acts which gave rise to counts 4 and 6. The fact that the jury had been handed copies of the presentment did not remove this risk. Counsel noted that it was possible that one copy of the presentment had been shared between two jurors and submitted that, even if each juror had an individual copy which they could have consulted when the verdict of guilty on count 6 was being returned,[9] one or more jurors may not have realised that count 6 related to the act of vaginal penetration which allegedly occurred at the unit.
[9]There was no evidence as to how many copies of the presentment were given to the jury, Counsel for the applicant said that frequently they were given one copy between two jurors. Counsel for the Crown said that each juror often received a copy.
The fact that neither counsel at trial recognised that his Honour had transposed counts 4 and 6 or drew it to the judge’s attention was said to support the possibility that one or more jurors might have convicted the applicant of count 6, believing that they were convicting him of count 4. Unless the Crown could disprove this hypothesis, the verdict of guilty on count 6 should be set aside and a new trial ordered. In support of that submission, counsel relied on the statement of the High Court in Davies v The King[10] that an appellate court will
set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached the jury may have been mistaken or misled.[11]
[10](1937) 57 CLR 170.
[11]Ibid 180 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ).
The applicant further submitted that the jury could only have convicted the applicant of count 6 if they had disregarded the judge’s transposition of count numbers. In doing so, the jury would have had to ignore his Honour’s instruction that they must accept his directions of law and that, if they did not understand what they were told, they could ask for clarification. The failure of the jury to ask the judge any question about the transposition of count numbers indicated that the judge’s error could have confused one or more jurors about the factual basis of count 6.
On 21 April 2011, the Court convened to deliver judgment in the matter.[12] During discussion between counsel and the bench at the hearing of the appeal, counsel for the applicant had indicated that, in considering the third ground of appeal, it would be appropriate for the Court to obtain and consider counsel’s closing addresses at the trial. The closing addresses were obtained and referred to in the Court’s reasons, but copies of the addresses had not been seen by the parties.
[12]Redlich and Hansen JJA had authorised Neave JA to hand down judgment in their absence.
After reasons were delivered, counsel for the applicant addressed the Court on the failure to afford the applicant an opportunity to make submissions as to the closing addresses of counsel below. Upon being made aware that the parties had not seen the addresses, the Court supplied copies to counsel and allowed each party to file written submissions as to the effect, if any, of the closing addresses on the grounds of appeal. The reasons which follow take account of the written submissions received from counsel.[13]
[13]As to the Court’s power to vary a judgment or order before authentication, see Supreme Court (Criminal Procedure) Rules 2008, rr 1.13, 1.14; R v Lapa (No 2) (1995) 80 A Crim R 398.
In counsel’s later submission, it was argued that the prosecutor’s transposition of count numbers in his closing address compounded the error made later by the judge in his charge. The failure of the judge to correct the prosecutor’s error, combined with the judge’s own error, increased the risk that at least one of the jurors who returned the majority verdict of guilty on count 6 was mistaken as to the count on which they were convicting the applicant.
Counsel submitted that a juror may very well have made notes based on the prosecutor’s closing address and used those notes, which transposed counts 4 and 6, in reaching the majority verdict on count 6. Alternatively there was a risk that the terms of the presentment were disregarded during discussion which occurred in the jury room. This might have referred to the counts not by number but by way of shorthand descriptors, such as ‘oral sex in the den’ or ‘sex at the block of units’. The reading out of the presentment might not have led to recognition of the judge’s transposition of count numbers, because, when that was done, reference would only have been made to count numbers and not to the particular act to which each count related.
In reply, counsel for the Crown relied upon the judge’s and prosecutor’s accurate description of the alleged offences and the unlikelihood that a jury would confuse an act of vaginal intercourse in the unit with an act of oral penetration in the den at the applicant’s home. He also relied on the fact that the jury had copies of the presentment, which indicated that count 4 related to an act of oral penetration and that count 6 related to an act of vaginal penetration, and that the judge had told the jury to use the presentment as the reference point in reaching their verdict on each count. He submitted that it was absurd to suggest that the jury would have been misled by a number heard fleetingly during the course of the prosecution’s closing address and while the judge was giving his directions, rather than reaching their verdicts on the basis of the count numbers in the presentment. The fact that neither counsel heard the transposition of counts in the judge’s charge and asked for it to be corrected supported the view that the jury had not been confused by the judge’s error.
Conclusion on ground 3
Although the transposition of the numbering of counts 4 and 6 was an unfortunate error, I do not consider there was any realistic possibility that the applicant’s conviction on count 6 might have reflected jury mistake or confusion.
If the acts covered by counts 4 and 6 had allegedly occurred in the same place and there had been no distinguishing features between them, I would have allowed this application for leave to appeal. There would then have been a real risk that his Honour’s transposition of count numbers may have resulted in some jurors convicting the applicant on count 6, believing that they were doing so on the basis of the acts covered by count 4.
The situation would have been similar to that which occurred in R v Trotter,[14] where the Court of Criminal Appeal set aside a conviction for indecent assault of a male under 16, because the complainant had given evidence that the applicant indecently assaulted him twice within a short period of time while he was staying overnight at the applicant’s home and the jury might not have been unanimous as to which of the acts provided the basis for the conviction. In Trotter, the evidence of the second indecent assault only emerged in cross‑examination and the prosecutor did not specify which act was relied upon as the basis for the single indecent assault count of which the applicant was convicted.
[14](1982) 7 A Crim R 8 (‘Trotter’).
In the present case, by contrast, the complainant’s evidence related to different sexual acts (oral penetration and vaginal penetration) occurring at different times and at different places. The difference between the acts of sexual penetration relied upon was apparent from the presentment, which the judge directed the jury to use in arriving at their verdicts. The complainant said that the applicant told her he loved her when they had intercourse at the unit, and described the act in some detail. Her evidence that they had oral sex in the applicant’s home was simply a bald assertion that this act had occurred. The defence case was that none of the alleged acts occurred and that the complainant’s account was a fantasy. However, the applicant’s evidence also differentiated between count 6 and the other counts. The applicant denied that the complainant had ever been to the unit with him, and explained her knowledge that he had access to the units as arising from family discussion about the fact that he was renovating the units.
In these circumstances, I do not consider that, in convicting the applicant on count 6, there is any risk that a member of the jury could have mistakenly believed that the conviction related to count 4. That conclusion receives additional support from the fact that members of the jury had copies of the presentment and from the process by which they reached their verdicts. The jury reached its majority verdict of guilty on count 6 after telling the judge that they had reached a verdict on five of the counts but were having difficulty in agreeing on the remaining count. The subsequent period of deliberation must necessarily have focussed upon the allegation of penile penetration in count 6. Having regard to the nature of the counts there is no possibility that the disagreement related to the verdict on count 4. The jury were then, as is always the case, asked for their verdict on each separate count and each juror heard the foreperson communicate the verdict on each count.
I would reject the submission that the reference to count numbers was a direction of law. The use of count numbers is a technique for describing the facts on which the Crown relies to establish different offences and for differentiating between those offences. Nor do I consider that the jury’s failure to ask the judge to clarify the confusion caused by the transposition of numbers indicates that they must have been confused as to the acts which provided the basis of count 6.
During the course of the appeal hearing, counsel were asked whether the fact that the jury acquitted the applicant on counts 1 to 5, whilst convicting him of count 6, could be taken into account in deciding whether ground 3 was made out. The applicant’s counsel submitted that such reasoning would be circular, because it would assume that all members of the jury understood that count 6 related to the act of vaginal penetration in the unit, which was the very issue in contention under ground 3.
Ordinarily that logic would be compelling. However, I do not consider it applies in the circumstances of this case. That is because of the relationship between ground 3 and the conclusion I have reached on grounds of appeal 4 and 5, which allege that the applicant’s conviction on count 6 was unsafe and that it was inconsistent with his acquittal on counts 1 to 5.
In my opinion, the jury verdicts reflect a grouping of the various counts into sexual acts said to have occurred at the applicant’s home (counts 1 to 5) and the single sexual act which occurred at the unit. For the reasons discussed in relation to ground 4, the Crown case on count 6 was much stronger than its case on counts 1 to 5. As Redlich JA notes in his reasons, it was not submitted on appeal that there was any basis on which the majority of the jury could have been satisfied beyond reasonable doubt that the applicant was guilty of count 4 (oral penetration in the den) without also being satisfied beyond reasonable doubt that he was guilty of the other offences said to have occurred in the den. More importantly, there was no evidentiary basis on which the jury could have considered that count 4 (the act of oral penetration in the home) was established beyond reasonable doubt, whilst one or more members of the jury entertained such a doubt in relation to the act of vaginal penetration in the unit. Thus, the comparison between the conviction on count 6 and the acquittal on count 4 (as well as on all the other counts relating to acts occurring in the applicant’s home) fortifies the conclusion that the jury was not lead into error as a consequence of the judge’s transposition of the count numbers, although it is not my primary reason for reaching that conclusion.
Grounds 4, 5 and 6
Grounds 4, 5 and 6 are interrelated. They are as follows.
4.The majority verdict of Guilty returned by the jury on Count 6 is unreasonable and/or cannot be supported having regard to the evidence and, as a consequence, there has been a substantial miscarriage of justice and, as a further consequence, a judgment of acquittal should be entered on Count 6.
5.The majority verdict of Guilty returned by the jury on Count 6 is inconsistent with the unanimous verdicts of acquittal returned by the jury on Counts 1 – 5 inclusive and, as a consequence, there has been a substantial miscarriage of justice and, as a further consequence, a judgment of acquittal should be entered on Count 6.
6.The majority verdict of Guilty returned by the jury on Count 6 is as a result of a compromise by the jury (or, alternatively, some members of the jury) and, as a consequence, there has been a substantial miscarriage of justice and, as a further consequence, a new trial of the offence the subject of Count 6 should be ordered.
Under cover of ground 4, counsel for the applicant submitted that a jury must have had a reasonable doubt as to the commission of count 6, because of the circumstances in which the act of vaginal penetration at the unit was said to have occurred. In particular, counsel relied on the complainant’s evidence that
(a) the offence was committed in daylight hours in a unit in which another teacher at the school was living;
(b) she did not resist the applicant, and unprotected intercourse occurred with her ‘on top of’ the applicant;
(c) she did not recall thinking about the fact that the applicant did not use a condom;
(d) the offence occurred in the open area inside the door of the unit and she did not recall the applicant locking the door before committing the offence;
(e) the offence occurred in a corner by the window, where the sun was shining in, and anyone outside in the public area could have looked inside and seen the offence being committed; and
(f) she had no recollection of the remainder of the day.
Counsel submitted that this account of events was so improbable that a jury must have had a reasonable doubt as to whether it had occurred. He also relied on the absence of any corroborating evidence or evidence of recent complaint,[15] the applicant’s unequivocal denial of his offending and the evidence of the applicant’s good character. Counsel also submitted that the applicant’s acquittal on all of the other counts indicated that the jury did not accept that the complainant was a credible witness.
[15]Evidence about the complainant’s conversations with Ms Moore and Mr Powell were not relied upon as evidence of recent complaint: see [10] and [32] above.
Under cover of ground 5, counsel for the applicant submitted that there was no rational basis for the verdict of acquittal on counts 1 to 5 and the conviction on count 6. If the jury accepted that the alleged sexual acts in the house had not occurred, it must have accepted that count 6 was also a product of the complainant’s fantasy. Thus, the only possible basis for the difference in verdicts was that the conviction on count 6 was an improper compromise (ground 6).
Counsel for the Crown contended that the guilty verdict on count 6 was neither unsafe and unsatisfactory nor inconsistent with the applicant’s acquittal on counts 1 to 5. The jury could rationally have had a reasonable doubt about the applicant’s guilt of the offences covered by counts 1 to 5, whilst still being satisfied to the required standard that he was guilty of count 6.
Counsel for the Crown submitted that there were two possible bases on which the acquittal on counts 1 to 5 could be differentiated from count 6. First, counts 1 to 5 allegedly occurred in the applicant’s home, which he shared with his wife. The applicant, his wife, daughter and Ms Telford gave evidence that they were living in the home at the time when the alleged sexual acts occurred. The offences were said to have been committed in the den which opened off the entrance hall and had no window coverings and a door that was always left open, so that any acts would easily have been observed from inside or outside the house.
Secondly, the jury might have accepted the applicant’s evidence that he had taken care not to be alone in the house with the complainant because his wife had told him that Detective Senior Sergeant Stephens had warned her that it would unwise to allow this to occur. Either of these matters could have caused the jury to experience a reasonable doubt about the applicant’s guilt on counts 1 to 5, but not required them to have such a doubt in relation to count 6.
Conclusion on grounds 4, 5 and 6
In my opinion, these grounds of appeal are not made out.
When determining whether a verdict is unsafe and unsatisfactory, the court must consider ‘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’.[16] The plurality in M v The Queen said that, 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.[17]
[16]M v The Queen (1991) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).See also SKA v The Queen [2011] HCA 13
[17]Ibid 493.
As McClellan CJ at CL pointed out in R v TK,[18] where the appellant relies on the fact that the jury has entered a verdict of acquittal on some counts and convicted the offender on others, the appellate court will usually have to ‘consider the consequences, if any, for the strength of the Crown case in respect of the counts for which there is a conviction, of the fact that the jury was not satisfied beyond reasonable doubt of the Crown case in relation to another count or counts’.[19] However, as McClellan CJ at CL noted,[20] in MFA v The Queen[21] the High Court approved comments made by the New South Wales Supreme Court in R v Markuleski[22] that there is no presumption that, where the only direct evidence of multiple sexual offences is that of the complainant and the appellant was not convicted on all of the counts, a guilty verdict on only some of the counts must be regarded as unreasonable.
[18](2009) 74 NSWLR 299 (‘TK’).
[19]Ibid 301.
[20]Ibid 300-1. Simpson J (at 321) said that, where the unreasonableness of verdicts of guilty was said to be raised by inconsistent verdicts, it was necessary to consider all the facts and circumstances of the particular case.
[21](2002) 213 CLR 606 (‘MFA’).
[22](2001) 52 NSWLR 82; see also R v KET [1998] VSCA 73.
In SKA v The Queen a majority of the High Court said that the task of an appellate court in considering an ‘unsafe and unsatisfactory’ ground of appeal is ‘to make an independent assessment of the whole of the evidence to determine whether the guilty verdict can be supported’.[23] In my opinion, there was ample evidence to support the applicant’s conviction on count 6, notwithstanding the acquittals on the other counts. The complainant freely admitted all of the matters on which the applicant relied in support of his application for leave to appeal against his conviction. In cross-examination, she said that the unit was rented out to another teacher and that the applicant had told her that the teacher had gone away for the weekend. She said that the applicant had keys to the unit but admitted that she did not recall the applicant locking the door and that, if anyone had walked into the unit, there would have been nothing to prevent them seeing the applicant having sex with her. She described the layout of the units and said that they had sex close to a corner window and that the sun was coming in. She said that the appliacnt did not pull down a blind or draw curtains, although she thought there was a sheer curtain on the window. The jury might well have thought that the complainant’s failure to deny the matters put to her in cross-examination actually increased her credibility.
[23]SKA v The Queen [2011] HCA 13, [21] (French CJ, Gummow and Kiefel JJ). Cf the different view of Heydon and Crennan JJ on this issue.
Defence counsel did not ask the applicant whether he had had a key to the unit as the complainant alleged, or whether the complainant’s description of the layout of the unit was accurate. The applicant gave evidence that the complainant knew from family discussion that he was working on the units. This was put to the complainant, who said that she had been taken to the units by the applicant on a previous occasion, when painting and plastering was being done. The applicant denied that he had ever taken her to the block of units, but the complainant was not challenged on her evidence that the applicant had a key to the unit or that the teacher who lived in the unit had gone away at the time the offence was said to have occurred.
The jury were entitled to take the view that even, if she had known that he was working on the unit from family discussions, this did not account for her ability to describe the internal layout of the unit in which the alleged intercourse occurred. The applicant gave no evidence about the layout of the unit and it was not put to the complainant that her description of the inside of the unit was erroneous.
In assessing the credibility of the applicant, the jury was also entitled to rely on the indirect support provided for the complainant’s account by the evidence of Mr Powell, Ms Shepherd, Mr Dolheguy and Mr Stephens. Each of these witnesses contradicted some aspects of the applicant’s evidence.
Mr Powell described the applicant’s reaction to being told that Mr Powell knew that he had slept with the complainant. He said that the applicant had reacted with shock and, in the following month, had visited him on a number of occasions after school and queried him about what he knew and said things to discredit the complainant. The applicant denied that Mr Powell had accused him of having had sex with the complainant or that he had visited Mr Powell and asked him about what he knew. He also denied speaking with Ms Meehan about rumours of a sexual relationship between him and the complainant.
The applicant said that he went to the Rea Street address when the complainant moved in and on only one other occasion when he delivered books to her. This was contradicted by Ms Shepherd and Mr Dolheguy, whose evidence is described in more detail above. Ms Shepherd’s evidence that, after the complainant had moved into the Rea St house, the applicant, a man of 44, had visited her three or four times a week, could be regarded as indicating that he had a sexual interest in her.
There were substantial differences between Mr Stephens evidence that he had given the applicant’s wife a warning in general terms that it would be unwise for the applicant to be alone in the home with a young woman and the applicant’s evidence that he had taken care not to be alone with the complainant because he had been told by his wife that Mr Stephens had said that the complainant had previously complained about another man.
In my opinion, the whole of the evidence provided a sufficient basis for the Crown case that the applicant had vaginal intercourse with the complainant at the unit. Ground 4 therefore fails.
I would also reject grounds 5 and 6. The acquittals on counts 1 to 5 were not inconsistent with the verdict of guilty on count 6. I would accept counsel for the Crown’s submissions as to the reasons why one or more jurors might have had a reasonable doubt about whether the offences occurred in the applicant’s home but no such doubt about the offence in the unit. The acquittals on counts 1 to 5 did not necessarily turn on a rejection of the complainant’s evidence. As Gleeson CJ, Hayne and Callinan JJ said in MFA:[24]
In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman[25] and referred to in later cases[26]: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.[27]
[24](2002) 213 CLR 606.
[25](1987) 44 SASR 591, 593.
[26]See, for eg, MacKenzie v The Queen (1996) 190 CLR 348, 367-8.
[27](2002) 213 CLR 606, 617.
Further, even if one or more members of the jury did not accept the credibility of the complainant’s evidence about counts 1 to 5, this did not necessarily require a rejection of her evidence about the offence in the unit. As the High Court made clear in MFA, the jury is not required to accept or reject all of the counts in such circumstances.[28] In TK, McClellan CJ at CL remarked that:
It is important to remember when considering the problem of inconsistent verdicts that a jury does not have to be satisfied beyond reasonable doubt that all of a complainant’s evidence is an accurate or even truthful account of all of the facts relevant to all of the counts. It may be, and in fact may often be the case, that a complainant’s recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts. As Wood CJ at CL pointed out in R v Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events. It may be that, having been reminded of the problems of uncorroborated evidence by the trial judge, before a jury convicts on any count where the primary evidence is of the complainant, it will seek out matters in the surrounding evidence which are consistent with the complainant’s account. It may also be that where the jury finds amongst the surrounding evidence that there are some inconsistencies with the complainant’s evidence it will be unable to return a guilty verdict on a particular count.[29]
[28]Ibid 617-8 (Gleeson CJ, Hayne and Callinan JJ), 632 (McHugh, Gummow and Kirby JJ).
[29](2009) 74 NSWLR 299, 302.
Ground 6 is really a re-statement of ground 5 in different terms. A court should be very cautious in concluding that a jury has reached a compromise verdict, contrary to its duty.[30] In this case, the differentiation in the jury verdicts was explicable and I am not persuaded that the conviction on count 6 was an improper compromise.
[30]R v TK (2009) 74 NSWLR 299, 331.
Sentence appeal
The grounds of appeal were as follows:
1.The sentence imposed is, in all the circumstances of the case, manifestly excessive.
2.The learned sentencing judge erred in the exercise of his discretion in that he gave excessive weight to the sentencing ‘factors of general deterrence and denunciation’. (See Reasons for Sentence at para [31].)
3.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord any, or sufficient, weight to the Applicant’s previous good character and his personal circumstances.
The offender’s circumstances
The applicant was aged 63 years at the date of sentence and had no prior convictions. He had lived in Shepparton for his whole life and had a stable family background. He lost one eye in a shooting accident as a young man. His working career began as an apprentice carpenter but he later retrained as a teacher. After graduating the applicant began work as a teacher at the complainant’s school and continued to work there until it closed in 1992. He then worked as a teacher at other schools until 1999, when he returned to work as a builder with his son-in-law.
As well as teaching, the applicant coached football, cricket and netball. He had made significant contributions to his community, including the development of a cubbyhouse project in 1991 for charity purposes, projects at the Mooroopna Cricket Pavilion and improvements to the homes of friends, including those suffering from disabilities and cancer. Ten references were tendered on the applicant’s behalf.[31] The judge assessed that ‘the thrust of all of this material is that you are a person who is committed to your community and is regarded as honest, helpful, generous with your time and completely trustworthy’.[32]
[31]This figure does not include a ‘thank you’ card tendered on the applicant’s behalf.
[32]Reasons, [20].
Medical reports were also tendered, which indicated that, in addition to the loss of his left eye, the applicant had restricted vision in his right eye, impaired hearing and osteoarthritis, for which he takes medication. He is also taking medication to control his cholesterol levels, and for gout and back pain.
A psychological report, prepared by Mr David Ball, a forensic psychologist, and dated 26 March 2010, was tendered on the applicant’s behalf. The report was prepared on the basis of Mr Ball’s assessment of the applicant on 23 March 2010 and documents pertaining to his convictions and medical conditions. His diagnosis of the applicant was as follows:
Mr Ash fails to satisfy any DSM-IV-TR diagnostic criteria. I could find no evidence of clinical syndromes, notable deficits in his personality or other psychopathology. However, he is suffering minor symptoms of depression and anxiety related to his current situation awaiting sentence. I consider this to be expected and within normal parameters.
Under the heading ‘Risk Assessment’, Mr Ball noted the applicant’s continued maintenance of his innocence. Otherwise, Mr Ball, on the basis of various tests, found the applicant to be at a low-risk of re-offending. He reached the following respective conclusions as to ‘stable risk factors’ and ‘dynamic risk factors’:
Mr Ash returned a score of zero, which places him in the Low Risk Category for sexual re-offence relative to other male sex offenders … this is the lowest possible level of long-term risk of sexual recidivism on this instrument.
…
Features associated with Mr Ash’s lifestyle, which lower his risk of recidivism include, maturity, lack of pervasive deficits in his personality and his broad social network. Mr Ash did not present as having flaws in otherwise healthy anger management or mood management. As stated previously, he has no issues of substance abuse, social deficits or offence-condoning cognitions which are normally highly correlated with sexual offending. Nor does Mr Ash have ready access to any possible victims.
In support of the claim that the sentence was manifestly excessive, the applicant’s counsel relied on the applicant’s previous good character and lack of any prior convictions,[33] his work for the community, his low risk of re-offending and the ‘protective factors’ provided by his commitment to his close family and his active involvement in the community. These factors were said to require moderation of the weight to be given to specific deterrence. Counsel also relied on the substantial delay of some 18 years between the date of the offending and the imposition of sentence, during which the applicant had not re-offended, the delay of three years from the commencement of the investigation and the imposition of sentence and the applicant’s poor physical health, which would make any term of custody particularly onerous.
[33]Including evidence given by both Mrs Canobie and Ms Telford on the plea.
At the time when the offence was committed, the maximum penalty was 3 years’ imprisonment. Counsel for the applicant relied upon R v Howes,[34] where an offender convicted by a jury of the same offence committed in October 1993 was sentenced to 6 months’ imprisonment by a County Court judge in May 2000 and this Court held that the sentence was not manifestly excessive. Counsel submitted that the offending in the present case was less serious than that in Howes and that the imposition of a sentence representing 50 per cent of the maximum sentence was necessarily to be regarded as manifestly excessive.
[34](2000) 2 VR 141 (‘Howes’).
In reply, counsel for the Crown submitted that the judge had referred to all of the matters on which counsel for the applicant relied and had given sufficient weight to the mitigating factors relied upon by the applicant. His Honour had to give particular weight to general deterrence because the offence involved the exploitation of a vulnerable school student by her teacher, for his own sexual gratification.
Conclusion on sentence appeal
The allegations of specific sentencing error made in the second and third grounds of appeal against sentence are, in essence, particulars of the ground of manifest excess. All of the matters on which the applicant relied were taken into account by the learned sentencing judge.
Unlike the situation in Howes, there was no evidence that the applicant engaged in a course of conduct before the offence occurred in order to persuade or ‘groom’ the complainant to have intercourse with him in the unit. However, the offence was clearly premeditated and the applicant has shown no remorse for committing it.
The applicant, who has otherwise been of good character, has been called to account for an offence committed 18 years ago. The sentence imposed on him will cause hardship to him and his family and his situation attracts some sympathy. However, as her victim impact statement shows, the offending has caused the complainant lasting harm. The purpose of the offence of which the applicant was convicted is to punish persons in positions of authority who exploit the vulnerability of adolescents in their care. The complainant was particularly vulnerable because the applicant was a teacher at her school and she was living in his house. It is not surprising that she felt ashamed and confused by his behaviour.
In my opinion, the sentence, though stern, having regard to the relevant mitigating factors, was not manifestly excessive. I would reject the proposition that a sentence of 50 per cent of a maximum term of 3 years was necessarily manifestly excessive. For these reasons, the application for leave to appeal against sentence should be refused.
REDLICH JA:
I have had the advantage of reading in draft the reasons of Neave JA. I agree that the application for leave to appeal against the conviction and sentence should be refused.
I wish to add some observations concerning ground 3. All of the counts 1 to 5, on which the jury acquitted the applicant, concerned alleged conduct at the applicant’s home. Count 4 was one of four counts of sexual conduct alleged to have occurred in the ‘den’ of the applicant’s home. The content of the complainant’s description of each of the acts the subject of those four counts, and the absence of any evidence that gave additional strength to the complainant’s account on count 4, did not provide any obvious and reasonable basis upon which the jury might have distinguished count 4 from the other conduct alleged to have occurred in the den. It was not suggested on the appeal that there was a reasonable view of the evidence that might have led jury members to a state of satisfaction beyond reasonable doubt as to the facts the subject of count 4, and yet not be satisfied to the requisite standard of the other sexual conduct alleged to have occurred in the den, the subject of counts 1, 2, 3 and 5.
In contrast to counts 1 to 5, count 6 concerned an act of penile penetration at a block of units owned by the applicant and his wife. As Neave JA has explained, the evidence in support of count 6, upon which a majority of the jury returned the verdict of guilty, was considerably stronger than the evidence in support of the other counts. In addition, the applicant’s evidence in which he sought to explain the complainant’s esoteric knowledge of the unit where intercourse was said to have taken place was unsatisfactory. He said no more than that it was possible that he had discussed his units at home in the presence of the complainant. Such a discussion would not explain her knowledge of the layout of the units, the internal configuration of unit 2 or her knowledge of the position of the window near the driveway or the curtain. Moreover, the applicant gave no evidence as to how the
complainant came to know that another school teacher from his school occupied unit 2, or that the teacher was away or that he had a key to her unit, the complainant not having been challenged as to this evidence.
The foreman of the jury informed the trial judge after lunch on the second day of the jury’s deliberation that the jury had agreed as to five counts but were unable to unanimously agree as to a sixth count. Plainly the jury had reached its decision to acquit the applicant on counts 1 to 5 and that there was disagreement as to count 6. Following a Black direction,[35] the jury after further deliberation reached a majority verdict of guilty on count 6. Inherent in the submission in support of ground 3 is the suggestion that, during the jurors’ deliberation on count 6, one or more jurors could have had the mistaken belief that the fact in issue then under consideration was the allegation of oral sex in the den of the applicant’s home, and not the alleged act of penile penetration in the unit of the block of flats owned by the applicant which he had leased to a fellow teacher.
[35](1993) 179 CLR 44.
Ground 3 therefore rests upon an unsound basis. There was no realistic possibility that it was the facts the subject of count 4 about which some jurors may have been satisfied, and mistakenly thought those facts to be the subject of count 6.
HANSEN JA:
I agree with Neave JA and Redlich JA.
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