Charters v The Queen
[2012] VSCA 318
•26 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0080
| WAYNE DANIEL DAVID CHARTERS | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, NEAVE and OSBORN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 November 2012 | |
DATE OF JUDGMENT: | 26 November 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 318 | |
JUDGMENT APPEALED FROM | R v Charters [2010] VCC (Unreported, County Court of Victoria, Judge Montgomery, 11 March 2010) | |
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CRIMINAL LAW – Appeal – Conviction – Obtaining property by deception – Fraudulent scheme – False representations that applicant employed by ASIO – Whether conviction unsafe and unsatisfactory – Whether applicant unfairly constrained in conduct of trial – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Obtaining property by deception – Conviction after trial – Total effective sentence 4 years, 6 months, non‑parole period 3 years, 6 months – Whether manifestly excessive – Whether unreasonable disparity between applicant and co‑accused – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| The Applicant appeared in person | ||
| For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
There is before the Court an application for leave to appeal against conviction and an application for leave to appeal against sentence. I would refuse both applications. My reasons for reaching that conclusion follow. First, however, I should make some general remarks about the trial and the appeal.
The Crown case at trial was that the applicant married Karen Roberts in a sham wedding and defrauded her of a total of $147,987.10 on five separate occasions between March and May 2003. The Crown alleged that the applicant made misrepresentations to Ms Roberts about being a member of the Australian Security Intelligence Organisation (‘ASIO’) and needing to flee to Canada with the applicant’s co-accused, Craig Hall, in order to avoid being required to go to Iraq. The Crown alleged that as a result of those misrepresentations, the applicant convinced Ms Roberts to liquidate her assets, lend money to the applicant and convert such property into travellers’ cheques over which the applicant had control.
The applicant was convicted by a jury of five counts of obtaining property by deception from Ms Roberts. The applicant also pleaded guilty to one count of theft in respect of a wedding suit.
In my respectful opinion, this was a very well conducted trial. It was managed with care and discretion by the trial judge. The case was prosecuted with scrupulous fairness and it was defended with vigour and thoroughness by defence counsel who, it is obvious, was giving full effect to his instructions. Both in cross‑examination and in final address, defence counsel appeared to be forcefully advancing all of the contentions which were reasonably open to be advanced on behalf of the defendant, now applicant.
His Honour’s charge to the jury was, in my respectful view, a model of clarity and succinctness. His Honour summarised the issues clearly, set out the competing arguments and made a point of relating the evidence to the issues. That is exactly what Alford v Magee[1] requires. Adopting that approach is most likely to maximise the assistance which the jury derives.
[1](1952) 85 CLR 437. See also R v A J S (2005) 12 VR 563, 577 [54]–[57].
The applicant was initially represented on the appeal by counsel. The initial outline of submissions on both conviction and sentence was drawn by counsel. The applicant subsequently ceased to be represented and has since represented himself.
The applicant prepared and filed supplementary submissions on both conviction and sentence appeals, running to 32 pages and four pages respectively. In the applicant’s supplementary submissions on the conviction appeal, he advanced 17 additional grounds of appeal.
In response, the Crown filed both an initial outline of submissions, dealing with the original four grounds, and then a lengthy supplementary outline dealing with the additional grounds. That was of great assistance to the Court and to the applicant, who subsequently responded in writing in a document running to a further 32 pages. In this document, the applicant abandoned six of his 17 additional grounds and then supplemented — and, in some respects, narrowed — his arguments on the remaining 11.
Although the applicant is not a lawyer, his submissions are full of references to, and quotations from, decided cases. It is clear, on my reading of his written material, that he has been able to develop, as fully as he considered necessary, all of his complaints about the trial. In these reasons I will not attempt to set out all of the detail in the written submissions, as it is not necessary to do so. But everything the applicant has written has been read and considered by the Court.
The particular value of the lengthy written submissions on both sides was that it enabled oral argument to be quite short, which is of course the purpose of written submissions. It has also put the Court in a position where we are able to deal with the applications on the day of the hearing.
Unsafe and unsatisfactory
The issues in the trial were summarised by the trial judge as follows:
The prosecution say that the marriage proposal by Mr Charters was a charade, a ruse; the defence say, no, it was a love proposition. So you have two different competing propositions there, vastly different.
The prosecution say that [Mr Charters] made misrepresentations about being part of ASIO and that he made misrepresentations about, as a member of ASIO, being required to go to Iraq, and he wanted to get out of that and that is why they had to liquidate the assets, and they say that he obtained the money because of that misrepresentation. The defence say, no, that is not right. The money was obtained as a result of mutual decisions made about the assets and the money. They were shared assets because of the marriage, and [defence counsel’s] submission is that she had full knowledge of all the decisions made about the money and they were joint decisions and that, really, this is a matter that belongs in the Family Court and not in the criminal courts.
Ground 4 was one of the original grounds, under which the applicant contended that the guilty verdict on count 1 was unsafe and unsatisfactory. The essential question raised by that ground is whether it was open to the jury to be satisfied beyond reasonable doubt that the false representations about the applicant’s membership of ASIO, and about a risk that he would have to go to Iraq to fight, had been made before 28 March 2003 when the complainant’s loan proceeds were provided to the applicant.
The written submission — which contends that the jury were bound to have a doubt about the timing of those matters — was based essentially on the prior inconsistent statements of the complainant. At trial, the complainant was extensively cross‑examined about a range of prior inconsistent statements. It was defence counsel’s obligation to draw attention forcefully, as he did, to the inconsistencies between the accounts which the complainant had given at different times. The question for the jury was whether the evidence which the complainant gave at trial satisfied them beyond reasonable doubt as to the sequence of events.
I note that the Crown’s written submissions helpfully set out the evidence which the complainant gave at trial which was relied on as making the case in support of count 1. That is exactly the kind of assistance this Court needs when the unsafe and unsatisfactory ground is advanced.[2]
[2]Kotvas v The Queen [2010] VSCA 309, [35].
Having reviewed the transcript of the evidence and the cross‑examination of the complainant, including the cross‑examination about her prior inconsistent statements, I am not persuaded that this ground is made out. It is clear on the authorities that for this ground to succeed, the Court of Appeal must be persuaded that it was not reasonably open to the jury to come to the conclusion on which the relevant conviction is based.[3] Or, put differently, the party advancing the ground has to show that the jury must inevitably have had a doubt about whether the case was proved. I am not persuaded that this is such a case. Having reviewed the evidence, it seems to me that it was well open to the jury to be satisfied beyond reasonable doubt that the false representations were causative of the advancing of the funds the subject of count 1.
[3]See, eg, R v Klamo (2008) 18 VR 644.
There are related grounds which can be disposed of on a similar basis. Ground 1 contended that the trial judge ought to have directed the jury that prior inconsistent statements put to a witness may be viewed as establishing the truth of what is said in those prior statements. In my opinion, no such direction was required. It is significant, in my view, that no such direction was sought by defence counsel, even though the judge had raised for consideration on at least two occasions the question of what kinds of directions might be required on that topic.
It is unsurprising, in my view, that no such direction was sought by defence counsel. It was perfectly clear from the way the case was conducted by defence counsel that — quite properly — the prior statements were put to the complainant on the basis that they were the truth. The whole attack on her credibility was that she had told the truth previously and was therefore lying in the witness box.
As stated earlier, defence counsel explored at length, in cross‑examination and again in final address, the effect on the complainant’s credibility of her prior inconsistent statements. It is exactly what would have been expected from defence counsel, in order to raise for the jury’s consideration the question of whether they could be satisfied about the complainant’s account.
The cases relied on in the written submission prepared by counsel for the applicant demonstrate that jurors are likely to assume that prior inconsistent statements can establish the truth of the contents of those statements.[4] As the Crown’s initial written submission rightly contended, the jury is not to be taken to be aware of the arcane distinction between the admissibility and the use to be made of hearsay and direct evidence. The submission points out that s 60 of the Evidence Act2008 (Vic) was enacted partly in recognition of that fact.
[4]R v Hilder (1997) 97 A Crim R 70, 83; R v Abdallah [1999] NSWCCA 380, [29]. See also R v Sams (1990) 46 A Crim R 468, 471.
Ground 3 is also concerned with count 1. The applicant’s contention is that the jury could not have been satisfied beyond reasonable doubt that false representations made by the applicant did cause the provision of the money the subject of count 1. I reject that submission. In my opinion, for reasons already given, it was well open to the jury to be satisfied on the evidence given by the complainant that there was that causal link.
The absence of evidence to substantiate the ASIO connection
I now turn to ground 5. As narrowed in the supplementary submissions, the contention under ground 5 is that there was evidence available, but not before the trial judge, which might have substantiated the applicant’s claim to have been ‘highly involved with ASIO’.
In my opinion there is nothing in this ground. There was no suggestion at the trial that there was evidence which existed somewhere which might have substantiated that claim. As the Court put to the applicant, both on an earlier interlocutory hearing and today, it was for him to produce documentation which must have existed in some form or another, and must have been in his possession, if he had ever had any formal engagement by ASIO, whether as an officer of ASIO or as a contractor to it. The applicant candidly acknowledged in the course of the hearing this morning that he was unable to produce any such document to the trial Court.
Ground 14 is related. It concerns evidence given at the trial by the First Assistant Director General of Security for ASIO. His evidence — which was not challenged — was that there was not a single record within ASIO to suggest that either the applicant or his co‑accused had ever had any involvement or relationship with ASIO.
This was, of course, flatly inconsistent with the statements made by the applicant to police at the police interview, where he claimed to have been ‘highly involved’ with ASIO and, more particularly, to have been unable to leave ASIO. The applicant told the police that it was the fact that he could not get out of ASIO which prompted him to contact members of Parliament for their assistance. The relevant part of the police interview is extracted below:
POLICE OFFICER: Now, you were telling us you were wanting to get out of ASIO. Did anything else happen in respect to ASIO that the — is there any relevance here, as far as trying to get out of ASIO?
APPLICANT: No […] without the knowledge of anybody, I went to the member of parliament in Rosebud, and went down and took down some documents to him, and a statement, and asked […] the Liberal member to — and I also went to the Labor member as well, and asked them if they could intervene for me and assist me.
POLICE OFFICER: To get out […] of ASIO?
APPLICANT: That’s correct.
POLICE OFFICER: What sort of documents did you take there?
APPLICANT: I took the documents that I had — documents that I was involved with ASIO. I took them documents that I had […], some documents I had received, whilst I was in the Armed Forces, and gave them the documents. Of course, I gave the originals to the […] Labor member, and the copies to the Liberal member. And they said that they understood the situation. We discussed the matter for several hours, on many occasions, over a period of a couple of weeks. And they said that they would do their very best, that they understood the situation. But, of course, I didn’t reveal the nature of my decision or anything to do with what I was told to do or engaged in.
POLICE OFFICER: But you told them you were wanting to get out of ASIO?
APPLICANT: Yes, I just said … wanted to, actually. I didn’t want to be involved with ASIO any more.
POLICE OFFICER: Did they agree to help you?
APPLICANT: Yes, they did.
POLICE OFFICER: Did they — what did they do?
APPLICANT: Well, I had no more contact with ASIO after that. I have not been contacted again, since I handed in the documents, which is not […] uncommon because they can sometimes not contact you for three months.
POLICE OFFICER: So what — what were you thinking, that they’d let you go?
APPLICANT: Well, no I […] believed, in the initial thought, that you couldn’t get out of these things because it was typical government. And so, of course, I didn’t want this matter escalating […] into a problem.
POLICE OFFICER: But you’ve gone to the parliamentarians to … ?
APPLICANT: That’s correct, yes.
POLICE OFFICER: Get assistance?
APPLICANT: As […] we thought that they could actually do something to assist me.
Some questions were asked in cross‑examination about whether ASIO had ‘any involvement with the military through the Defence Signals Directorate’. The ASIO witness declined to go into detail about ASIO’s relationship with Defence Signals Directorate, which is of course a quite separate intelligence organisation. Complaint has been made about the unresponsiveness of that answer, as if it prevented the applicant from demonstrating that his claims of having worked for ASIO had a factual foundation. That complaint is without substance, in my view.
The complainant in her evidence did not suggest that the applicant ever mentioned the Defence Signals Directorate, nor did the applicant, in his police interview, ever suggest that he had anything to do with the Defence Signals Directorate. The same might be said about what is referred to in the written submissions as the Defence Signals Unit. The claim was about ASIO and about ASIO only.
The third related ground is ground 20, which complains that there was a restriction on the answers which the ASIO witness was able to give, for the reasons I have already outlined. There was no such restriction, in my view. It was for the applicant to substantiate his claim of employment with ASIO. The applicant gave no evidence at the trial and he did not put any documents to the ASIO witness to contradict his authoritative statement that the applicant was not, and had never been, employed by ASIO.
Alleged non‑disclosure by prosecution
Ground 6 is a complaint that the prosecution failed to disclose to the Court banking and business records concerning the applicant. In my opinion, this ground should be rejected, for the reasons given by the Crown in its supplementary response.
To summarise, this was material which concerned the applicant’s own affairs. He had access to it all. All facts and matters relating to his financial position were within his knowledge. There was no indication at trial by his counsel that he was in any way constrained in advancing a case to meet the contention of the Crown — substantiated by evidence and bank records — that he was impecunious.
A related complaint under ground 6 is that there was disposal of the applicant’s property, including relevant documents, by the complainant with the authority of the informant. The complainant gave evidence about that and explained that the informant had authorised her to dispose of property belonging to the applicant, in the hope of her recovering some small part of what she had lost through the applicant’s fraud. There was no question raised at the trial about any loss of records.
Ground 7 concerns the alleged concealment of evidence regarding the applicant’s health in its original form; the alleged denial of a private phone call; and a complaint that the applicant was not brought before a magistrate within a reasonable time. It is not clear, on the materials, whether that ground is maintained. On the assumption that it is, I would reject ground 7, essentially for the reasons advanced by the Crown. There was no issue of nondisclosure at the trial; the judge’s ruling on the private phone call was clear, cogent and, with respect, correct; and the question of whether or not the applicant was brought before a magistrate within a reasonable time had been fully canvassed and was not further pressed.
Other grounds
The next ground is ground 10. This is a complaint that there was a search of the applicant’s property in June 2002 in relation to an arson investigation. The applicant submits that the paintings and prints — which the prosecution said were assembled as part of the fraudulent scheme — were already there and that this should have been noticed by the investigating police. I would reject this ground. As the Crown has pointed out in its response, the applicant had access to the arson trial brief before the commencement of this trial. This line of questioning was not pursued at trial by the defence when it could have been and here, as in other respects, the applicant is bound by the conduct of his defence counsel at trial.[5]
[5]See, eg, Patel v The Queen (2012) 290 ALR 189, 214 [114].
Secondly, the so‑called fresh evidence relied on by the applicant does not support his contention. There is no reason why, in the course of an arson investigation, there would have been a record made of pictures, statues of dolphins, or landscape paintings.
Ground 11 is a ground concerned with alleged perjury by the complainant. I have already referred to the extensive exploration by defence counsel of the issue of prior inconsistent statements. Having read the transcript, in my opinion it was well open to the jury to regard the complainant as a witness of truth. It is notable that in her evidence the complainant acknowledged that her recollection of dates was not very good. She acknowledged, and endeavoured to explain, differences between the accounts she had given at different times. She made concessions, and gave affirmative answers to questions, where it was appropriate to do so. These are all marks of a credible witness. I detected no sense that she was sticking doggedly to a particular version. Her evidence had a ring of truth about it and, importantly, she was not shaken in the slightest, as I read the transcript, despite appropriately vigorous cross‑examination.
Ground 12 is concerned with evidence about the engagement date and the engagement ring. Again, this was a matter explored at trial. The questions of when the applicant and the complainant agreed to be married, when they were engaged and when the ring was purchased were fully explored. The complaint is made that there was no proper record of what had gone on before the committal magistrate. It was for that reason that there was a voir dire before the trial commenced. Defence counsel was able to cross‑examine the complainant extensively and no complaint was made then or subsequently that it was either unfair or impracticable to conduct the trial without the transcript of the committal hearing.
Ground 15 complains that what is referred to as the ‘official secrets legislation’ has removed the applicant’s right to a fair trial. That ground is without substance. The factual question was whether there was any proof of the claim of the applicant’s involvement with ASIO. The evidence given by the ASIO representative was not constrained by any secrecy provision in the Australian Security Intelligence Organisation Act 1979 (Cth).
Ground 19 complains that the conduct of the prosecutor was unfair and that the prosecutor made ‘inappropriate and unfair comments’. I have read the final address of the prosecutor. No part of that address could have been described as either inappropriate or unfair. The prosecutor, as I said earlier, conducted the trial with scrupulous fairness. His address, far from being ‘intemperate [and] inflammatory’ as the applicant submits, properly drew the threads of the Crown case together. The prosecution reminded the jury of the key parts of the evidence which, so it was submitted, would have enabled them to be satisfied beyond reasonable doubt of the applicant’s guilt.
Finally, I turn to ground 21. The applicant, at the time of his dealings with the complainant, was facing charges of arson. He says in his written submission that the existence of those charges:
generated enormous prejudice towards the jury of fact and the forensic decisions by the Court and both counsel were incorrect to allow such matters to be brought before the Jury ...
In my opinion, there is nothing in that ground. The prosecutor was astute to ensure that he made no mention of those charges. Defence counsel told the judge, in the absence of the jury, that it was central to the defence case that the complainant, far from having been influenced by any ASIO claim, acted out of a concern for what the applicant had told her were groundless arson charges against him. The defence case was that the reason the complainant had provided the applicant with money, sold her house and agreed to go to Canada, was to ensure the applicant did not go to gaol for arson. This was put to the complainant in cross‑examination.
With respect, it seems to me perfectly comprehensible why defence counsel took that view. Defence counsel could hardly have conducted the case which, on instructions, he was bound to conduct without referring to the existence of the arson charges. It was the very seriousness of those charges which, so the defence case contended, gave plausibility to the proposition that it was out of the complainant’s love for the applicant, and her concern that he not be wrongly prosecuted for arson, that she had provided him with money.
Doubtless, there was a difficulty associated with running that case; namely, that defence counsel had to draw to the jury’s attention that the applicant was facing those serious charges. However, for the reasons I have given, the applicant cannot now complain that this matter was placed before the jury. The case which the applicant had instructed his counsel to run involved the risk of prejudice. The applicant was bound by the way his counsel conducted the trial on his instructions.
Sentence appeal
I turn now to the application for leave to appeal against sentence. Set out below is a table which includes the sentences imposed on the applicant and on his co‑accused, Craig Hall.
Count
Date
Offence
Maximum
Applicant’s sentence
Mr Hall’s sentence
1 28 March 2003 Obtain property by deception (Crimes Act 1958 (Vic), s 81(1)) — $50,000 10 y 4 y, 6 m N/A 2 24 April 2003 Obtain property by deception (Crimes Act 1958 (Vic), s 81(1)) — $40,000 10 y 4 y, 6 m 2 y 3 12 May 2003 Obtain property by deception (Crimes Act 1958 (Vic), s 81(1)) — $38,317.10 10 y 4 y, 6 m 2 y 4 12 May 2003 Obtain property by deception (Crimes Act 1958 (Vic), s 81(1)) — $10,170 10 y 4 y, 6 m 2 y 5 20 May 2003 Obtain property by deception (Crimes Act 1958 (Vic), s 81(1)) — $9,500 10 y 4 y, 6 m 2 y 6 8 May 2003 Theft (Crimes Act 1958 (Vic), s 74) — wedding suits 10 y 3 m 1 m Applicant’s Total Effective Sentence:
4 y, 6 m
Applicant’s Non-Parole Period:
3 y, 6 m
Applicant’s Compensation Orders:
$147,987.10 to complainant; $1,000 to Frankston Formal Wear.
I also include, from the respondent’s outline of submissions, a useful table comparing the applicant and Mr Hall under a number of different headings:
Applicant Mr Hall Sentence 4 y, 6 m, non‑parole period of 3 y, 6 m 2 y, 1 m, non‑parole period of 12 m Offences Counts 1—6 ($148,000) Counts 2–6 ($98,000) Role Principal. Subsidiary. Prior convictions 51 findings of guilt from 8 court appearances over 19 years. Mostly dishonesty and deception. 38 prior convictions from 12 court appearances over 9 years. Mostly drugs, burglaries, thefts. Rehabilitation prospects Very low. Not before the courts for last 10 years. Other On bail at time of commission. Not on bail.
That comparative table is relevant to ground 1 of the application for leave to appeal against sentence, which complains that the sentencing differential between the applicant and Mr Hall was unreasonably large.
A ground complaining about disparity in the treatment of co‑offenders is to be approached within the same framework as the ground of manifest excess. That is, the question for consideration is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co‑offenders as he did if proper weight had been given to the similarities and differences between the co‑offenders as regards culpability, criminal record and personal circumstances. The answer to that question determines whether, in the accepted terminology, the person making the complaint has a ‘justifiable sense of grievance’.[6]
[6]See, eg, Teng v The Queen (2009) 22 VR 706, 710 [16]–[17]; R v Tang (2009) 23 VR 332, 346 [67].
In my respectful opinion, it was well open to the sentencing judge to differentiate between the applicant and Mr Hall in the way that he did and I do not regard the contrary as reasonably arguable. I would refuse leave to appeal on this ground.
It is perfectly clear on the evidence given by the complainant that Mr Hall was merely a bit player in this fraudulent scheme. The entire project of winning the trust of the complainant, and then luring her into a marriage and an overseas trip for which she ended up paying, was all the work of the applicant. Mr Hall was brought in to add some authenticity to the applicant’s statements and to facilitate the pantomime performed by the applicant and Mr Hall in Singapore, when they purported to go off to the United Nations during their days there.
The difference in criminality between the two was very marked, in my opinion. Of course, both had prior convictions, but the applicant’s prior convictions were much more directly concerned with dishonesty and deception than were Mr Hall’s, making specific deterrence and protection of the community very significant considerations. It is to be hoped that the applicant is deterred from this kind of conduct. The degree of harm suffered by the complainant is, as the judge noted, very great indeed.
The second ground contends that a number of the individual sentences were manifestly excessive. On counts 1 to 5, identical sentences of four years and six months’ imprisonment were imposed, even though the amounts of money obtained varied.
In my opinion, there is nothing in that point. The judge clearly took the view that all of the sentences should be concurrent. These were instalments of the fraud. The amounts in this setting were not individually significant. They were all, effectively, part of the stealing from the complainant of all the money she had. The same sentencing outcome might have been arrived at differently, but it was well open to the judge to take the view that these were all aspects of an overall course of criminal conduct. The sentence imposed was well within the range. If anything, the sentence was on the lenient side, given the seriousness of this fraud, the harm caused to the complainant and the fact that the applicant should have known from his prior convictions that deceiving people out of their money will be severely punished.
Accordingly, I would refuse both applications.
NEAVE JA:
I agree. I would also refuse both applications.
OSBORN JA:
I agree that both applications should be refused for the detailed reasons stated by the President, subject only to the following additional brief observation. The matter most strongly urged upon us this morning was the proposition that the trial judge should have given a stronger warning concerning the dangers of conviction upon the basis of the complainant’s evidence, given that she had made a series of prior inconsistent statements.
In his charge, the trial judge carefully spelt out each of the alleged inconsistencies, the senses in which they might be regarded as bearing on the complainant’s credibility in relation to particular factual issues and generally, and the contentions of both the defence and the Crown with respect to each alleged inconsistency. The defence case was put squarely, coherently, forcefully and fairly to the jury. There was no further warning required with respect to this aspect of the evidence, either as a matter of specific rule of law or as a matter of fairness.
The arguments as to alleged inconsistencies were matters for the jury to evaluate. They cannot be said to have necessarily raised a reasonable doubt with respect to the Crown case. I would refuse the application both with respect to leave to appeal against conviction and sentence.
MAXWELL P:
The order of the Court in each application is that the application for leave to appeal is refused.
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