Heery v Criminal Justice Commission
[2000] QSC 63
•24/03/2000
SUPREME COURT OF QUEENSLAND
CITATION: Heery v Criminal Justice Commission
Re Pierre Mark Le Grand [2000] QSC 063PARTIES: MATTHEW PHILLIP HEERY
(plaintiff)
v
CRIMINAL JUSTICE COMMISSION
(defendant)IN THE MATTER OF the Criminal Justice Act 1989
and
IN THE MATTER OF an application by PIERRE MARK
LE GRANDFILE NO/S: 9636 of 1997
OS No 11002 of 1997DIVISION: Trial Division DELIVERED ON: 24 March 2000 DELIVERED AT: Brisbane HEARING DATE: 9 March 1998 JUDGE: White J ORDER: In 9636 of 1997
1. A declaration that the monitoring and recording of conversations by the use of listening devices at 22 Kitchener Road, Pimlico, Townsville between 3 July 1996 and 22 August 1996 by officers of the Criminal Justice Commission were breaches of confidence. 2. A declaration that the use of listening devices at 22 Kitchener Road, Pimlico, Townsville between 3 July 1996 and 22 August 1996 by officers of the Criminal Justice Commission were not approved or authorised in accordance with the terms of s 82 of the Criminal Justice Act 1989. 3 The video and audio tapes, notes, transcripts or other transcripts whatsoever (including copies) of conversations recorded at 22 Kitchener Road, Pimlico, Townsville between 3 July 1996 and 22 August 1996 be destroyed by officers of the Criminal Justice Commission. In OS No 11002 of 1997 The application be dismissed CATCHWORDS: Listening device approval – conformity with s 82 Criminal Justice Act 1989 – authorisation – conformity with approval – declarations – breach of confidence – injunction to deliver up material. Criminal Justice Act 1989
Invasion of Privacy Act 1971Attorney-General v Observer Ltd [1990] 1 AC 109
Coco v The Queen (1994) 179 CLR 427
Coles v Wood [1981] 1 NSWLR 723
Commonwealth v John Fairfax & Sons Ltd (1980) 147
CLR 39
Duchess of Argyll v Duke of Argyll [1967] Ch 302
Emanuele v Australian Securities Commission (1997) 71
ALJR 717
Entick v Carrington (1765) 19 State Tr 1029
George v Rockett (1990) 170 CLR 104
Grollo v Palmer (1995) 184 CLR 348
Leach v Money (1765) 19 State Tr 1001
Lord Ashburton v Pape [1913] 2 Ch 469
Love v Attorney-General for New South Wales (1990) 169
CLR 307
Mistretta v United States (1989) 488 US 361
Ousley v The Queen (1997) 192 CLR 69
R (a solicitor) v Lewis [1987] 2 Qd R 710
Shaw v Coco (1991) 102 ALR 75COUNSEL: Mr P Dutney QC for the plaintiff/applicant in 9636 of 1997
and the respondent in OS No 11002 of 1997
Mr W Sofronoff QC, with him Mr G Newton, for the
defendant/respondent in 9636 of 1997 and the applicant in
OS No 11002 of 1997SOLICITORS: Boulton, Cleary and Kern for the plaintiff/applicant in 9636
of 1997 and the respondent in OS No 11002 of 1997
RA Evans for the defendant/respondent in 9636 of 1997 and
the applicant in OS No 11002 of 1997
WHITE J: The plaintiff (“Mr Heery”) has commenced an action by writ against the Criminal Justice Commission (“CJC”) in which he seeks declaratory relief and the surrender to him of certain tapes and transcripts. Before the court is a notice of motion seeking the same relief which is final relief.
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“1. A declaration that the monitoring and recording of conversations by the use of listening devices at 22 Kitchener Road, Pimlico, Townsville between the 3rd of July 1996 and 22nd of August 1996 by officers of the Criminal Justice Commission where [sic]breaches of confidence.
2. A declaration that the use of listening devices at 22 Kitchener Road, Pimlico, Townsville as aforesaid was not authorised or approved in accordance with Section 82 of the Criminal Justice Act 1989.
3. An injunction, including a mandatory injunction requiring the Defendant to deliver up to the Solicitors for the Plaintiff all video and audio tapes, notes, transcripts or other records whatsoever (including copies) of conversations recorded at 22 Kitchener Road, Pimlico, Townsville as aforesaid.”
Mr Sofronoff QC for the CJC objected to the receipt of certain evidence contained in Mr Heery’s affidavit filed 5 March 1998 as to the effect upon him of the considerable publicity which, inter alia, surrounded the publication and playing of parts of the tapes in his criminal trial on the ground that the affidavit was received too late to allow an investigation of these claims. No damages or compensation are sought by Mr Heery. The material was to be adduced only for the purpose of showing that the declarations sought were not merely advisory or academic. Mr Sofronoff did not want an adjournment. I permitted that evidence to be lead and, although given a further opportunity to do so, Mr Sofronoff did not then seek an adjournment. Material in Mr Keith Kern’s affidavits of 5 and 9 March 1998 going to the same issue were plainly hearsay and ruled inadmissible.
Also before the court is an originating summons brought by Mr Le Grand as the then Director of the Official Misconduct Division of the Criminal Justice Commission of the CJC for orders amending the application to and approval given by Derrington J on 3 July 1996 in respect of the use of the listening devices referred to in Mr Heery’s action.
Mr Heery was a subject of an investigation being carried out for the CJC by the Honourable Kenneth Carruthers QC in respect of the circumstances surrounding the execution of a Memorandum of Understanding signed by the Honourable Theo Russell Cooper MLA, the Honourable Robert Borbidge MLA and Sergeant Gary Wilkinson in the context of a by-election for a seat in the Queensland Legislative Assembly.
On 3 July 1996 Derrington J gave an approval on the application of the CJC pursuant to s 82 of the Criminal Justice Act 1989 authorising entry into certain premises not identified in the approval, but which were those where Mr Heery was then living with his girl-friend in Townsville, for the purpose of installing, maintaining, servicing and removing listening devices and authorising the interception, overhearing, monitoring and recording of private conversations for a period of 28 days.
An extension to 27 August 1996 of that approval was made by Moynihan J on 29 July 1996.
The notice of motion does not seek to review the sufficiency of the material placed before the judges who gave the approvals. The presumption of regularity which applies to the judicial orders of superior courts applies to approvals of this kind, Ousley v The Queen (1997) 192 CLR 69.
As a result of information obtained by the use of the listening devices by the CJC an indictment was presented in the District Court at Townsville charging Mr Heery with two offences, namely, that pursuant to s 129 (incorrectly identified on the indictment as s 126) of the Criminal Justice Act on or about 14 July 1996 he,
“… with intent to obstruct the discharge of a function by an organisation or unit of the Criminal Justice Commission namely an investigation of alleged or suspected misconduct by members of the police service or alleged or suspected official misconduct destroyed a relevant record namely a telephone bill”
or, alternatively, pursuant to s 126 (incorrectly identified as s 129 in the indictment)
of the Criminal Code he,“… knowing that a document namely a telephone bill relating to telephone number 007 727230 was or might be required in evidence in a proceeding of the Criminal Justice Commission namely hearings by Kenneth Carruthers QC, a legal practitioner authorised by the Chairperson of the Criminal Justice Commission for the purpose of an investigation of alleged or suspected misconduct of the Police Service or alleged or suspected official misconduct wilfully destroyed the same, with intent thereby to prevent it from being used as evidence in the said proceeding.”
The trial commenced in Townsville on 13 October 1997. The Director of Public Prosecutions did not proceed with the Criminal Justice Act charge. The jury found Mr Heery “not guilty” of the remaining charge.
At the trial evidence was given by a sergeant of the Queensland Police Service seconded to the National Crime Authority about the installation of the listening devices at Mr Heery’s premises and the collection of information. He said that on 5 July 1996 acting on the purported authority of the approval of Derrington J and an authorisation given by Mr Frank Clair, the then Chairperson of the CJC dated 3 July 1996, he surreptitiously entered the premises where Mr Heery was living at about 2.00am and installed two listening devices, one in the kitchen and one in the living room. Since no conversation was recorded as coming from the kitchen device and little from the lounge room, the sergeant entered the premises again the following day and installed a further listening device in a bedroom. The evidence at the trial indicated that he was aware that Mr Heery and his girlfriend were then the residents of those premises and were occupying the bedroom in which the listening device was installed.
The sergeant monitored the listening devices and the conversations conveyed through them from a listening post near the premises as did a civilian investigator with the CJC authorised by Mr Clair to do so. The conversations were monitored for 16 hours of each day. The tapes recorded for 18 hours a day but were not functional during the early hours of the morning.
At the trial the prosecutor tendered a certificate of evidence signed by Mr Clair pursuant to s 143 of the Criminal Justice Act which authorises the reception of evidence in proceedings before any court or tribunal relating to an investigation by the CJC. Mr Clair certified that Mr Heery was given a notice to produce certain documents (the telephone bill it may be inferred). The notice was dated 5 July 1996 and forwarded to Mr Heery’s solicitors on 10 July 1996. Correspondence ensued in which it may be inferred that the solicitors indicated that the notice could not be complied with because the documents no longer existed. According to the certificate Mr Heery gave evidence before the Carruthers Inquiry on 15, 16 and 17 July 1996 and 22 August 1996. Mr Clair authorised the use of information disclosed by the use of the listening devices and Mr J Crowley QC, Acting Chairperson of the CJC, approved its use for prosecuting proceedings against Mr Heery.
Parts of the tapes recording conversations in Mr Heery’s residence were played in the course of the trial. No objection was taken on the ground that the evidence was unlawfully obtained.
Mr Heery has deposed that during the time that the listening devices were installed in the premises his girl-friend was living there with him. They had many conversations of an intimate nature, including his proposal of marriage to her, which were in the strictest confidence and which he would not have had had he been aware that anyone else may have been listening. He deposed that he had conversations with other people in the house in the course of which he made comments of an adverse kind about family and friends which he would not have made more publicly. Finally, during this time he had several conversations with his solicitors seeking their advice concerning matters relevant to his appearance before the Carruthers Inquiry which he regarded as strictly confidential.
The court will “restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not be divulged”: Lord Ashburton v Pape [1913] 2 Ch 469 at 475 per Swinfen Eady LJ quoted with approval by Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50. It has been fashioned to protect the personal, private and proprietary interests of the citizen, ibid, 51. Meagher, Gummow & Lehane, Equity Doctrines and Remedies 3rd ed p 471 have observed
“The fundamental notion is that … the defendant obtained surreptitiously or improperly that which he could otherwise have obtained either not at all or only on a limited basis. Secondly, it makes plain that it is not merely consensual disclosures that are protected; that which is not obtained consensually cannot be purloined and freely used.”
The surreptitious recording of private conversations of a confidential nature not otherwise authorised by law may be actionable as a breach of confidence. A citizen is entitled to the protection by injunction of the secrets of his or her private life, as well as trade secrets which are the more usual case, Duchess of Argyll v Duke of Argyll [1967] Ch 302 where an injunction was granted against the revelation of marital confidences. In Attorney-General v Observer Ltd [1990] 1 AC 109 (the Spycatcher case) Lord Keith observed that there was a sound public policy reason to protect confidences even without financial detriment.
“Further, as a general rule, it is in the public interest that confidences should be respected, and the encouragement of such respect may in itself constitute a sufficient ground for recognising and enforcing the obligation of confidence even where the confider can point to no specific detriment to himself. Information about a person’s private and personal affairs may be of a nature which shows him up in a favourable light and would by no means expose him to criticism. The anonymous donor of a very large sum to a very worthy cause has his own reasons for wishing to remain anonymous, which are unlikely to be discreditable. He should surely be in a position to restrain disclosure in breach of confidence of his identity in connection with the donation. So I think it is sufficient detriment to the confider that information given in confidence is to be disclosed to persons whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way,” at 256.
Lord Keith preferred to characterise this non-financial harm as a detriment. He said of an example given by counsel in the course of argument:
“Mr Alexander gave as an example a marital confidence which showed some friend of the husband in a very bad light and suggested that a court would, at the suit of the husband, restrain a wife from publishing such information even though it did not harm the husband. I dare say the court would protect such a confidence but I do not accept that the husband would suffer no detriment if the confidence was breached. The husband would be likely to lose a friend and friends can be precious. I am of opinion that detriment, or potential detriment to the confider, is an element that must be established before a private individual is entitled to the remedy. The remedy has been fashioned to protect the confider not to punish the confidant, and there seems little point in extending it to a confider who has no need of the protection” at 270.
See too observations by McPherson SPJ (as his Honour then was) in Shaw v Coco (1991) 102 ALR 75 at 90 and Ryan J at 102 on the need for some evidence as to the nature of the information conveyed as well as the circumstance in which it was disclosed.
The conversations deposed to here were between a man and his fianceé in the privacy of their bedroom concerning their intimate, personal relationship and, more seriously, between Mr Heery and his solicitors in which advice was being sought in respect of the very subject matter which was the basis for the listening devices having been placed in his home, were plainly confidential. See R (a solicitor) v Lewis [1987] 2 Qd R 710 where Dowsett J discusses the ambit of the confidentiality which reposes in conversations between a client and his solicitor, particularly at 726.
In 1971 the Invasion of Privacy Act in s 43 made it a criminal offence for a person to use a listening device to overhear, record, monitor or listen to a private conversation. The use of a listening device by a member of the police service acting in the performance of his duty will not fall within the prohibition expressed in s 43(1) in certain circumstances which need not be considered here because s 82 of the Criminal Justice Act provides specifically for the present situation:
“(1) The Invasion of Privacy Act 1971, section 43(1) does not apply in relation to use of a listening device within the meaning of that Act by a person authorised in writing to do so by the chairperson [of the CJC] in accordance with an approval of a judge of the Supreme Court given in relation to a particular matter specified in the approval.”
Subsection 2 provides for circumstances in which such an approval may be sought
“(2) If the chairperson is satisfied by evidence on oath or affirmation, or by statutory declaration, that there are reasonable grounds for suspecting that use of a listening device may disclose information relevant to the subject matter of an investigation by the commission, the chairperson may apply to a judge of the Supreme Court for an order approving such use.”
Mr Sofronoff contended that the source of authority to enter premises and use and monitor a listening device is not s 82(1) but s 123(5) of the Criminal Justice Act and that the approval was in accordance with its terms. It is necessary to set out the whole of the section in order to see if that submission can hold.
“(1) An application made pursuant to section 82 shall be heard ex
parte.(2) No notice or report relating to the application shall be published and no record made in the proceeding shall be available for search by any person, except by direction of a judge of the Supreme Court. (3) Upon the application, the judge shall have regard to –
(a) the gravity of the subject matter of the investigation by the commission; (b) the extent to which the privacy of any person is likely to be affected by use of a listening device in the particular case; (c) the extent to which the commission’s investigation is likely to be assisted by disclosure of information expected to be disclosed by use of a listening device. (4) The applicant shall make full disclosure of all factors, of which the applicant is aware, both favourable and adverse to the making of the order sought by the applicant so that the judge may properly determine whether the order should be made. (5) An order made on such application may confer on all officers of the commission, or any of them, such powers and authority as the judge considers appropriate in the public interest and specifies in the order in relation to the approved use of a listening device, including authority to enter upon any premises by such means, and using such reasonable force, as are necessary.”
Section 123 expressly concerns applications made pursuant to s 82. It sets out the matters the judge must have regard to and in subsection (5) makes clear that the judge may impose conditions and authorise other breaches of the law apart from a breach of s 43 of the Invasion of Privacy Act such as trespass or housebreaking. It is essentially procedural. For the purpose of deciding whether the subject approval is within power it is s 82 which must be satisfied.
Derrington J signed what was described on its face as an “order”. Section 82 refers to “an approval” by a judge of the Supreme Court. The use of this expression tends to identify more completely the function of the judge in doing so as an administrative and not a judicial one. Mr Sofronoff readily agreed that in granting approval for the installation of a listening device his Honour was exercising an administrative function, Love v Attorney-General for New South Wales (1990) 169 CLR 307 at 321; Coco v The Queen (1994) 179 CLR 427 at 444; and Grollo v Palmer (1995) 184 CLR 348 at 360. The approval is headed “In the matter of an application by Pierre Mark Le Grand” and is in the following terms
“Pursuant to section 82 of the Criminal Justice Act 1989 authority is granted to such persons as are authorised in writing by the Chairperson of the Criminal Justice Commission to:
(a) Enter and re-enter, using such reasonable force, as is necessary the premises specified in the affidavit of the applicant and the affidavit of Warren Geoffrey Strange, and to install, maintain, service and remove listening devices in and from these premises; and
(b) Intercept, overhear, monitor and record private conversations by means of the said listening devices for a period of twenty-eight days from the date hereof in compliance with any order so granted.”
The document then sets out the conditions upon which the approval was given as to the dates between which the activity could take place and the provision of a report to the judge at the conclusion of the operation.
Section 82 operates to permit the use of a listening device “in relation to a particular matter specified in the approval”. There is no matter to which this approval relates. It could be for any purpose. It is general in its effect on its face. Two examples of approvals were referred to by Mr Dutney QC, for Mr Heery, which identified in their terms the subject of the investigation and the precise address where the devices were to be installed, see Lewis at p 714 and Coco at 450-1. Both were approvals for listening devices obtained pursuant to s 43(2) of the Invasion of Privacy Act but the expression in s 43(2)(c)(ii)B is identical to that found in s 82.
The authorisation of the chairperson of the CJC directed to the person who would otherwise be in breach of s 43(1) of the Invasion of Privacy Act must be made in writing “in accordance with the approval”. The document signed by Mr Clair sets out the names of officers of the CJC “authorised” by the chairperson who
“… are hereby authorised to use listening devices including the installation, maintenance, service and removal of the devices, the entry and re-entry of the specified premises, including the use of such reasonable force, as is necessary and the overhearing, monitoring and recording of conversations and/or statements pursuant to the Order of the Honourable Mr Justice Derrington made on the 3rd day of July 1996.”
No premises are identified not even in the roundabout way by reference to premises mentioned in an affidavit as in the approval by the judge. Neither is there any reference to the duration within which the approved activity might take place.
Neither the approval nor the authorisation conform with the requirements of s 82. Mr Sofronoff has submitted that these are mere technical breaches and the amendments sought in Mr Le Grand’s application to insert the material omitted from the application and the approval, that is, the identification of the subject matter of the investigation ought to be permitted nunc pro tunc, Emanuele v Australian Securities Commission (1997) 71 ALJR 717.
Although the legislation describes the act of the judge as an “approval” and the further act of the chairperson of the CJC as an “authorisation” they nonetheless partake of the character of warrants the authorisation for which has always been the object of close curial scrutiny. The common law refused to countenance search warrants except for the purpose of searching a place for stolen goods and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money (1765) 19 State Tr 1001; Entick v Carrington (1765) 19 State Tr 1029 cited in George v Rockett (1990) 170 CLR 104 at 110. Historically, as the High Court observed, the justification for these limitations on the power of entry and search was based on the rights of private property but in modern times the justification has shifted increasingly to the protection of privacy. The court said at 110-111
“State and Commonwealth statutes have made many exceptions to the common law position, and s 679 [of the Criminal Code, Queensland concerning search warrants] is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.”
In Ousley Gaudron J observed at 95 that “public confidence in the judicial process is put at risk if, as is suggested in this case, warrants are issued otherwise than in strict accordance with statutory requirements.” See to similar effect Kirby J at 141.
It is against that background that the application to amend needs to be considered. Mr Sofronoff submitted that since s 119 of the Criminal Justice Act provides, inter alia, that an application for an approval by a judge of the Supreme Court shall be made in accordance with the rules of court or as directed by a judge this allows the “slip” rule to correct clerical errors in orders to be brought into operation. He submitted that this was an appropriate exercise of the discretion because the omissions went wholly to form and not to substance; that there was no suggestion that the listening devices were used for any purpose other than for the purposes of the Carruthers Inquiry; or that they operated outside the periods specified.
Had the deficiencies in the approval been identified prior to its execution the applicant could, of course, have returned to his Honour and sought an amendment or a fresh approval. It is important to emphasise that this was a covert operation and the authorization which was required to reflect the approval did not limit in any way the investigation. The approval was not an order of the court properly so-called where a party whose interests were affected by it might be heard. In my view since the approval failed to comply with the requirements of s 82 and, having been executed, it cannot now be saved. I would dismiss the application for amendment.
In that event Mr Sofronoff submitted that the court ought not grant the declaratory relief sought because it would serve no purpose. No civil liability is open on the facts before the court because s 101 of the Criminal Justice Act protects from liability any officers of the commission who do any act in good faith and without negligence for the purpose of discharging the functions and responsibilities of an organisational unit of the commission. Further they would undoubtedly have the protection of s 24 of the Criminal Code and perhaps other defences such as s 22 of the Criminal Code. There is not the slightest suggestion that the officers of the CJC in executing the approval understood that they were acting otherwise than within the parameters of the law. If these were criminal proceedings, an application to exclude relevant material from the tape recordings on the ground that such evidence was illegally obtained on the Bunning v Cross principle would be unlikely to succeed, Ousley per Gaudron J at 95. Mr Sofronoff submitted that an attempt might be made to use any declaration inappropriately by commentators not fully appraised of the circumstances. There is nothing to suggest that this is in any way a “split” trial and that there will or is likely to be any subsequent action for damages, Coles v Wood [1981] 1 NSWLR 723 at 728-9.
I have concluded above that the conversations unlawfully recorded and monitored were, so far as they concerned intimate matters between Mr Heery and his girl-friend and with his solicitors, confidential, and by recording and monitoring them he has suffered personal detriment which he is entitled to have protected by declaration.
The CJC offered to destroy the tapes and transcripts obtained from Mr Heery’s premises but would not do so without his consent which he has refused to give. Mr Heery seeks the delivery up to his solicitors of all video and audio tapes and transcripts. The commission does not oppose such an order being made whatever the outcome of the substantive applications. Conversations recorded included those by a number of people other than Mr Heery who are referred to in paragraph 9 of Mr Russell Pearce’s affidavit filed on 5 March 1998 in OS No 11002 of 1997. Some persons cannot be identified by CJC officers but may be able to be so identified by Mr Heery. I think it undesirable in that circumstance that those tapes and transcripts be given to Mr Heery since they may contain confidential conversations of concern to other speakers not involving him. There are no consents from those people to Mr Heery’s proposal. The better course is that the tapes and transcripts held by the CJC be destroyed by the CJC.
Finally, the High Court in Grollo at 366-8 spoke of the desirability of having some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law’s protection of privacy and property, authorised to control the official interception of communications. Their Honours concluded at 367 that “the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other”. Their Honours referred to decisions of the European Court of Human Rights, in the United State of America, Canada and New Zealand which required judicial supervision of official secret surveillance, at 368. To similar effect were the observations of Dowsett J in Lewis at 712 where his Honour said that the device of conferring a supervisory jurisdiction in this area upon justices of superior courts of record was a means of ensuring a balance between the needs of the investigating authority and the rights of the individual citizen. However, the approval of this use of superior court judges is by no means universal, see McHugh J (diss) in Grollo at 378-384 and Mistretta v United States (1989) 488 US 361 at 407 quoted in Grollo at 366 by Brennan CJ, Deane, Dawson and Toohey JJ.
The objections to judges carrying out this administrative function in camera and without review have been addressed significantly by the introduction of ss 84A-84D into the Criminal Justice Act in 1997 to establish the position of public interest monitor. That person (and the deputy public interest monitors) is charged, inter alia, with monitoring compliance with the Criminal Justice Act by the CJC and appears at all hearings for an approval for a listening device before a judge. The independence of the public interest monitor is ensured by s 84A(5) in that an appointment may not be made from the ranks of the CJC, police service or any other body or institution likely to be interested in obtaining a listening device approval. In my experience this has been of great assistance in balancing the competing interests of criminal investigation and the right to privacy.
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In action 9636 of 1997
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