Kiparoglou v Police
[2021] SASC 100
•17 August 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
KIPAROGLOU v POLICE
[2021] SASC 100
Judgment of the Honourable Justice Parker
17 August 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - USE OF MOBILE PHONES
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES - CONVICTIONS OF TRAFFIC OFFENCES RELATING TO OTHER MATTERS - DEMERIT POINTS
This is an appeal against a conviction, following the entry of a guilty plea, for the offence of using a handheld mobile phone while being the driver of a moving motor vehicle contrary to r 300 of the Australian Road Rules. The appellant now seeks to withdraw his guilty plea.
In summary, the sole argument advanced by the appellant in support of the appeal is that he would not have been driving on Port Road at the time of the offence but for the fact that he was present in Adelaide only to deal with an appeal relating to another offence which he alleges was founded on fabricated evidence.
Held, per Parker J, dismissing the appeal:
1.The appellant has not persuaded the Court that a failure to permit him to withdraw his plea of guilty would give rise to a miscarriage of justice. Further, a different decision would not have been made had regard been given to the amended notice of appeal filed by the appellant on 15 July 2021.
2. The appellant is to pay costs of $500 to the respondent.
Australian Road Rules (SA) r 300; Criminal Code Act 1995 (Cth) sch 1 s 6.2; Supreme Court Criminal Rules 2014 (SA) r 279A, r 104X; Uniform Civil Rules 2020 (SA) r 186.1(b), referred to.
Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Kiparoglou v State of South Australia [2021] SASC 78; Proudman v Dayman (1941) 67 CLR 536, discussed.
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Burrell v The Queen (2008) 238 CLR 218; D’Orto-Ekenike v Victoria Legal Aid (2005) 223 CLR 1; DJL v Central Authority (2000) 201 CLR 226; Harvey v Phillips (1956) 95 CLR 235; Meissner v The Queen (1995) 184 CLR 132; Newmont Yandal Operations Pty Ltd v The J Arons Corporation (2007) 70 NSWLR 411, considered.
KIPAROGLOU v POLICE
[2021] SASC 100
Magistrates Appeal: Criminal
PARKER J: Mr Kiparoglou has appealed against his conviction, following the entry of a guilty plea, for the offence of using a handheld mobile phone while being the driver of a moving motor vehicle contrary to r 300 of the Australian Road Rules. At the conclusion of the hearing, I stated that I would dismiss the appeal but, after making some brief remarks, would publish my reasons later. On 3 August 2021, I made an order dismissing the appeal.
Events after dismissal of the appeal
Following the making of the order dismissing the appeal, Mr Kiparoglou contacted my Chambers on 9 August 2021 in relation to three issues. It is appropriate to refer to these issues before I state my reasons for dismissing the appeal.
One issue is that prior to the appeal hearing Mr Kiparoglou had not been provided with a copy of the affidavit sworn by the police prosecutor, Joanna Davis, that had been stamped by the Registry. However, it is quite clear from the exchange of emails between Mr Kiparoglou and the Crown Solicitor’s Office that he had been provided with a signed copy of Ms Davis’ affidavit by email dated 28 July 2021, i.e. six days before the appeal hearing on 3 August 2021. Within minutes he had expressed his thanks and apologised for the delay in providing his written submissions. He copied that email to my Chambers.
As Mr Kiparoglou had received a copy of the signed and affirmed original document, which was identical to that filed in the Registry, well in advance of the appeal hearing, he cannot possibly have suffered any prejudice from the delayed provision of the stamped copy.
The second issue is that Mr Kiparoglou advised my Chambers that I had conducted the appeal by reference to an earlier notice of appeal. During the appeal hearing I had before me a notice of appeal lodged by Mr Kiparoglou on 7 June 2021. Unfortunately, the amended notice of appeal lodged by Mr Kiparoglou in the Registry on 15 July 2021 had not been brought to my attention. I did have his written submissions dated 2 August 2021[1] and also the written submissions on behalf of the police dated 28 July 2021.
[1] Mr Kiparoglou’s submissions were dated 2 August 2021 but were received by email on 11 July 2021.
Mr Kiparoglou has requested that the appeal be reheard due to my reliance upon the earlier notice of appeal. He contends that “this calls for re-hearing of the facts & a re-hearing of the evidence”. He adds that “the appellant will be providing evidence (medico-legal report/assessment), that he was NOT legally able to enter into any plea’s … reasons which will be outlined within the medico-legal document”.
Appeals to a single judge against a decision of a magistrate exercising the criminal jurisdiction of the Magistrates Court (which includes offences against the Australian Road Rules) are now subject to Part 12A of the Supreme Court Criminal Rules 2014 (SA).[2] For that reason, r 186.1(b) of the Uniform Civil Rules 2020 (SA) is not available to recall or set aside the judgment. There is nothing in the Criminal Rules that authorises me to take that step. While a superior court of record may correct a judgment before orders have been formally entered,[3] the scope to do so after judgment has been entered is far more limited.[4]
[2] Rule 279A of the repealed Supreme Court Civil Rules 2006 (SA) formerly provided that such appeals were subject to the Civil Rules.
[3] Harvey v Phillips (1956) 95 CLR 235.
[4] Burrell v The Queen (2008) 238 CLR 218.
The common law slip rule can be called upon to correct an error in the drafting or expression of orders and, in addition to that principle, there is also an inherent power to recall a judgment and to correct an order that does not give effect to the intention of the judge who had decided the matter.[5] However, the orders that were made correctly reflected my intention that the appeal must be dismissed. There was also no clerical or drafting error of the type that would attract the application of the slip rule.
[5] DJL v Central Authority (2000) 201 CLR 226 at [34]; Newmont Yandal Operations Pty Ltd v The J Arons Corporation (2007) 70 NSWLR 411 at [67] to [83] (Spigelman CJ with Santow JA and Handley AJA agreeing).
Lord Diplock suggested in Hunter v Chief Constable of the West Midlands Police that there was a wide inherent power for a court to set aside a judgment where there had been a misuse of its procedure in a manner that was not inconsistent with the literal application of the rules but which would be manifestly unfair or bring the administration of justice into disrepute.[6] However, that principle is apparently restricted to cases where there has been an abuse of process.[7] That is not the present situation.
[6] [1982] AC 529 at 536.
[7] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 29 and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 264.
While I cannot set aside the judgment that was entered on 3 August 2021, it may possibly be contended that the appeal hearing and the subsequent order dismissing the appeal did not deal with the subject matter of the amended notice of appeal dated 15 July 2021. In other words, the contention may be that the amended appeal has not been dealt with and only an earlier and different appeal has been dismissed. If that is correct, the amended appeal remains outstanding.
That issue can only be addressed by referring to the terms of the initial notice of appeal lodged on 7 June 2021 and the amended notice filed on 15 July 2021.
Before doing so, I will address the third issue raised by Mr Kiparoglou in his email of 9 August 2021, where he stated that he intends to provide a medico legal report to support his contention “that he was not legally able to enter into any plea’s (sic)”. Mr Kiparoglou did not address the withdrawal of his guilty plea to the mobile telephone offence in either his original or his amended notice of appeal nor did he advance any written or oral submissions on that question. However, I made clear at the appeal hearing that I considered the relevant issue to be whether there was any ground upon which he may be permitted to withdraw his guilty plea. Counsel for the respondent had also thoroughly addressed that issue in her written submissions which Mr Kiparoglou had received six days before the hearing.
While I declined to receive further evidence at the appeal hearing, the only medical reports included amongst that material related to the treatment of his spinal condition. None of the medical reports referred to an inability to enter a guilty plea. The belated desire of Mr Kiparoglou to produce evidence on the question of withdrawal of his guilty plea does not provide a basis to reopen the appeal after the entry of an order dismissing the appeal.
The initial notice of appeal dated 7 June 2021
In his notice of appeal filed on 7 June 2021 Mr Kiparoglou appealed against a judgment of Magistrate McLeod dated 5 May 2021. The terms of the notice were as follows:
Particulars of Judgment
Date of judgment: 05th May 2021
Judicial Officer Appealed from: HH D.H.B. McLeod
File No of Court appealed from: AMC-21-2066
…
1.Orders complained of
1.Conviction of Use of Mobile Device whilst driving
2.Costs paid
2.Orders sought
1.Set aside/quash conviction
2.Set aside/quash imposed monetary fine
3.Set aside/quash demerit points incurred
3.Grounds of appeal
– The Australian Criminal Code Act 1995 Chapter 2, Part 2.2, Division 6, Section 6.2, Subsection 1a, 2a, 2b & 3 (Absolute liability)
4.Permission to appeal (if applicable)
1.Illegal Prosecution & illegal Court Proceedings
5.Extension of time (if applicable)
1.Appellant sought legal advice
2.Lack of evidence by the appellant within the granted 21 days to appeal
3.S42 of the Magistrates Act 1991
…
The amended notice of appeal dated 15 July 2021
In his amended notice of appeal Mr Kiparoglou also appealed against the decision of Magistrate Dixon to reduce to one point the demerit points imposed for the offence. He also included a long list of orders that he was seeking. However, the grounds of appeal did not change.
Particulars of Judgment
Date of judgment: 05th May 2021 & 03rd June 2021
Judicial Officer Appealed from: HH D.H.B. McLeod and HH B.J. Dixon
File No of Court appealed from: AMC-21-2066
…
1.Orders complained of
1. Conviction of Use of Mobile Device whilst driving Rule 300 ARR
2. Order For Costs To Be Paid $290.00
3. Demerit Point(s) Loss Incurred
2.Orders sought
1. Set aside/quash conviction of Rule 300 of the ARR (Aust. Road Rules)
2. Set aside/quash any & all imposed monetary orders to be paid - $290.00
3. Set aside/quash demerit points incurred (1 demerit point incursion)
4. The below sought orders are “pending discovery” ONLY
5. Removal of all police files/records from the 02nd Oct 2018 moving forward (fingerprints, arrest records, photographs, DNA samples anything & everything illegally obtained by SAPOL)
6. Overturn (withdrawal by prosecutions is NOT the same as INNOCENCE) any other previous findings/determinations in the criminal jurisdiction, more specifically MCPAU-19-1135, MCPAU-20-2341, MCPAU-20-2339, MCPAU-21-623, AMC-21-2066, MCPAU-20-2874, MCPAU-20-2302, MCPAU-20-1045, MCPAU-20-1859 MCPIR-21-839 & MCCHB-20-3071 – DEEM NULL & VOID
7. Overturn any other previous findings/determinations in the civil jurisdiction, more specifically CIV-20-006499, CIV-20-003465, CIV-20-003469 & CIV-21-004548 – DEEM NULL & VOID
8. Return any & all costs as ordered by both the lower & higher courts for the above matters in the criminal jurisdiction which also includes any orders for costs in the Supreme Court Criminal & Criminal Appeals Jurisdiction SCCRM-20-185, SCCRM-20-320, SCCRM-20-468, SCCRM-21-68, SCCRM-21-195 & SCCRM-21-211
9. Award the appellant “Victim of Crime” payment(s) for each & every matter that was illegally brought against the appellant by Roxby Downs Police (SAPOL) from 02nd October 2018 – 05th May 2021
10. Award the appellant “Victim of Crime” payment for illegal detainment (illegal Bail Conditions imposed) during the period of 08th July 2020 – 05th May 2021
11. Award the appellant “Victim of Crime” payment for “Acts Endangering Life & Or creating serious risk of harm” Section 29 of the CLCA of 1935 for HH Jackson not allowing the appellant access to his medical files for ongoing medical treatment whilst under illegal bail conditions
12. Award the appellant “Victim of Crime” payment for “Acts Endangering Life & Or creating serious risk of harm” Section 29 of the CLCA of 1935 for SAPOL not allowing the appellant access to his medical files for ongoing medical treatment whilst under illegal bail conditions
3.Grounds of appeal
– The Australian Criminal Code Act 1995 Chapter 2, Part 2.2, Division 6, Section 6.2, Subsection 1a, 2a, 2b & 3 (Absolute liability)
4.Permission to appeal (if applicable) Extension of time (if applicable)
N/A
5.Extension of time (if applicable)
N/A
…
Background
On 10 August 2020 police issued an expiation notice alleging that Mr Kiparolgou had been detected using a handheld mobile phone while driving a vehicle on Port Road at Thebarton. The police recorded that when Mr Kiparolgou was stopped he stated “I’m on the phone to my Mum, she’s buying a car. I couldn’t just hang up.”
Mr Kiparoglou elected to be prosecuted and was charged on 18 February 2021. Despite that election, according to the affidavit of the police prosecutor, Ms Davis, he advised police on several occasions that he was willing to plead guilty.
By email dated 23 April 2021 he provided to the Court and to the police an affidavit in which he admitted that he had been using a mobile phone whilst driving. He stated he had done so as his mother’s car had broken down. She was a widower aged in her sixties and required his advice to safely resolve the matter. His mother lived in Victoria and was subject to a strict lockdown at the time of the offence. That fact had exacerbated her concerns. He also asserted in the affidavit that the police had agreed to what he described as a “$250 (all-inclusive) penalty” along with one demerit point to take effect from the date of the offence.
Hearing on 5 May 2021
The matter came before Magistrate McLeod on 5 May 2021 in the Adelaide Magistrates Court. Mr Kiparoglou was unrepresented and participated by telephone. The prosecutor informed the Court that the police agreed to a minimal fine being imposed and a reduction of the demerit points to one point. The Magistrate convicted the appellant and imposed a fine of $50. His Honour waived the Court and prosecution fees but indicated that Mr Kiparoglou would need to give sworn evidence in support of his application to reduce the demerit points.
Hearing on 3 June 2021
The matter came before Magistrate Dixon in the Adelaide Magistrates Court on 3 June 2021. Mr Kiparoglou was again unrepresented and participated by telephone. The following details are drawn from the affidavit of the police prosecutor and an audio recording of the proceedings.
The Magistrate accepted that Mr Kiparoglou was holding a bible and on that basis the oath was administered. Mr Kiparoglou stated that he wished to withdraw his guilty plea. He referred to the Criminal Code Act (Cth) and stated that he had driven to Adelaide for a Supreme Court appeal in relation to other “fabricated” offences. Given the submissions made before me at the appeal hearing, it appears that the appellant was referring to his contention that he would not have been driving on Port Road at the time he used the mobile phone but for the fact that he had been in Adelaide to participate in other legal proceedings where he had made allegations against the police.
Mr Kiparoglou indicated that he intended to appeal against the conviction and fine imposed for the mobile phone offence. The Magistrate indicated that there was little point in the application to reduce demerit points if he was to appeal against the conviction. However, Mr Kiparoglou persisted in his application that the demerit points be reduced. The Magistrate informed him that this could only occur if he admitted the offence. At that point Mr Kiparoglou stated “I am guilty … I was using a mobile phone”. The Magistrate then reduced the demerit points for the offence of using a mobile phone while driving from three points to one point.
Observations concerning penalty
Mr Kiparoglou seeks that the fine, criminal injuries compensation levy and demerit points be set aside. I therefore make some brief observations about that issue. The expiation fee for the offence of driving while using a mobile phone is $544 and the victims of crime levy is $60, i.e. a total of $604. The maximum fine is $2,500. The Magistrate imposed a fine of $50 and the mandatory levy of $240, i.e. a total of $290. His Honour had no power to waive the levy but declined to make any order for payment of court costs or prosecution costs. The demerit points imposed were reduced from 3 points to 1 point. It is quite apparent that Mr Kiparoglou was treated very mercifully indeed.
Extension of time
Both notices of appeal were filed out of time. The conviction was recorded and the fine and victims of crime levy imposed on 5 May 2021 but the appeal was not filed until 7 June 2021. The amended notice of appeal filed on 15 July 2021 was also out of time in so far as it referred to the decision of Magistrate Dixon made on 3 June 2021 concerning the reduction of demerit points.
While the matter was not addressed in the written or oral submissions of the parties, Mr Kiparoglou did seek an extension of time in his first notice of appeal. He stated that he was seeking legal advice and evidence was not available to him within the 21-day appeal period. I infer that this may be a reference to some of the additional material that Mr Kiparoglou sought to lodge in support of the appeal. As the Crown did not oppose an extension, I have granted an extension of time. However, for the reasons stated below, I dismissed the appeal.
The appellant’s submissions
The focus of the written submissions provided by Mr Kiparoglou was almost entirely on his contention that his conviction on 25 February 2021 for the offence of driving at a speed of 113 kph in a 100 kph zone on 2 October 2018 (the speeding offence) was based upon evidence that had been fabricated by the police. On that occasion Mr Kiparoglou did not attend the trial and was convicted in absentia. Following his appeal to this Court, on 21 April 2021 SA Police consented to the conviction being set aside by Blue J. While Blue J did not publish reasons for that decision, I understand that the matter was remitted to the Magistrates Court. The speeding charge was then withdrawn by SA Police on 5 May 2021.[8]
[8] The facts are drawn from the ex tempore reasons of Judge Dart in Kiparoglou v State of South Australia (File no. CIV-20-003469) delivered on 25 March 2021 and my judgment in Kiparoglou v State of South Australia [2021] SASC 78.
For completeness, I note that on 18 June 2021 I refused an application for an extension of time to appeal against a decision of a Master to dismiss an action commenced by Mr Kiparoglou against the State of South Australia. He had alleged that he had suffered personal injury as a result of the malicious prosecution by SA Police of the speeding offence. The Master held that there was no reasonable basis disclosed for the claim of malicious prosecution and nor had a proper causal link been pleaded between the alleged injury suffered by Mr Kiparoglou and any conduct by a SA Police officer. His Honour also found that the personal injury claim was vexatious due to it being difficult or impossible to follow. I dismissed the application for an extension of time as the appeal could not possibly succeed.
The sole argument advanced by Mr Kiparoglou in support of his appeal is that the offence occurred because he was present in Adelaide to deal with an interlocutory appeal to the Supreme Court relating to the speeding offence. If he had not have been in Adelaide at that time he would not have been driving his vehicle on Port Road when he used his mobile phone. He asserts that the only reason that he was in Adelaide was to attend to the appeal against the speeding prosecution. Because he claims that this earlier prosecution was founded on fabricated evidence, he submits that he could not be convicted of the later and unrelated offence of driving while using a mobile phone.
Mr Kiparoglou has made the following submission about the alleged fabrication:
Since MCPAU-19-1135 [i.e. the speeding prosecution] is a matter using fabricated evidence then the appellant under the Aust Crim Code Act 1995 under Section 6.2 Absolute Liability, therefor was indeed innocent of all allegations against him & further was NOT needing to answer any of the COURTS at any instance
Any & all allegations, events etc under this act exonerates the then defendant, the now appellant & this can NOT be overlooked by the higher courts (respectfully)
Since he was innocent under the same said Aust Crim Code Act of 1995 then all the allegations against the appellant were in fact ILLEGAL allegations in their own right along with the proceedings that were attached to the allegations
The suggestion by Mr Kiparoglou that what he has described as s 6.2 of the Australian Criminal Code Act 1995 somehow exonerates him from any legal liability is most obscure. Because the Criminal Code Act1995 (Cth) does not include a s 6.2, he clearly intended to refer to s 6.2 of the Criminal Code.[9] Section 6.2 is the absolute liability provision.
[9] The Criminal Code comprises the Schedule to the Criminal Code Act 1995 (Cth).
As I previously indicated to Mr Kiparoglou in the course of submissions at the appeal hearing on 18 June 2021 in relation to his civil action, the Criminal Code has no application to offences under State law. Whether or not a State offence is governed by strict liability or absolute liability principles, or whether it is necessary for the prosecution to prove both the mens rea and the actus reus of an offence in the ordinary way, must be determined in accordance with the common law rather than Commonwealth statute law.
Furthermore, even if s 6.2 of the Criminal Code did apply to State offences, there is nothing in that provision, or in the equivalent common law principles, which is in any way relevant to either the allegation by Mr Kiparoglou that the police had fabricated evidence in relation to the speeding offence or his further submission that this allegation exonerated him from liability for his admitted conduct in using a mobile phone while driving.
Section 6.2 simply provides that if the law that creates an offence states that it is an absolute liability offence there are no fault elements for any of the physical elements of the offence and the defence of mistake of fact under s 9.2 is not available. In the terminology of the common law, the same principle would be expressed by saying that in the case of an absolute liability offence it is necessary for the prosecution to prove actus reus, but not mens rea, and that the Proudman v Dayman[10] defence of an honest and reasonable mistake of fact is not available.
[10] (1941) 67 CLR 536.
Those principles do not in any way whatsoever prove or help to prove, as Mr Kiparoglou seems to be suggesting, that the police were guilty of fabricating evidence in relation to the speeding offence. The same principles also do not provide that he was immune from criminal liability for an offence committed while he was present in Adelaide for the purposes of an appeal relating to the speeding offence.
Mr Kiparoglou’s written submissions dated 2 August 2021 were before me during the appeal hearing. His submissions referred to a series of orders that are either identical to, or similar to, those he had sought at paragraphs 5 to 12 of the notice of appeal dated 15 July 2021.
In essence, Mr Kiparoglou submitted that all fines, orders and costs, both civil and criminal, that were imposed in six identified Supreme Court criminal matters and four civil matters after 2 October 2018 should be set aside. He also sought orders that his fingerprints and photographs be removed from SAPOL databases and that all SAPOL database records entered after 2 October 2018 be deleted. In his written submissions, but not his notice of appeal, he also sought an order to the same effect with respect to all court files and records.
Mr Kiparoglou also sought criminal injuries compensation in relation to his prosecution by police, the fact that he was subject to bail conditions and allegations that a magistrate and the police had refused to allow him access to his medical files.
Mr Kiparoglou concluded his written submissions with the contention that he had a right to the preceding orders under Magna Carta. No coherent explanation was advanced for that rather startling assertion. Leaving that aside, such orders cannot be granted in an appeal which was concerned solely with the conviction of Mr Kiparoglou for the use of a mobile phone while driving.
In his oral submissions Mr Kiparoglou sought to advance essentially the same arguments and also sought permission to adduce evidence that he contended would prove that the police had made false affidavits relating to the speeding offence. He also sought to introduce further evidence that he had emailed to the Court very shortly prior to the commencement of the appeal hearing. This additional material had not been received by counsel for the respondent before she left her office to attend court. It comprised a mixture of documents largely relating to Mr Kiparoglou’s spinal disability and the GPS unit installed in the police vehicle involved in the detection of his alleged speeding offence.
I refused to receive any of this further or fresh evidence on the appeal on the basis that it was clearly not relevant to the question of whether or not Mr Kiparoglou should be permitted to withdraw his guilty plea on the mobile phone offence.
Although Mr Kiparoglou did not address the grounds upon which he may be permitted to withdraw his guilty plea, I was satisfied that there was no basis on which that should be permitted to occur. Mr Kiparoglou has admitted on multiple occasions, including in a sworn affidavit and also before a Magistrate, that he was using a mobile phone while driving. He made no contrary suggestion before me.
The relevant question was whether he had succeeded in persuading the Court that a failure to permit him to withdraw his plea of guilty would give rise to a miscarriage of justice.[11] As I have said, the only basis upon which he asserted that the conviction should be quashed is that he would not have been driving the vehicle at the particular time and place when he was detected using the phone but for the alleged improper conduct of police in relation to an earlier prosecution. Even if the allegations made by Mr Kiparoglou against the police were proven to be true, that would not provide a basis for setting aside the conviction on the mobile phone offence. Why he was driving on Port Road at the particular time when he used the phone is completely irrelevant.
[11] Meissner v The Queen (1995) 184 CLR 132 at 141-142.
I note that although Mr Kiparoglou sought in his amended notice of appeal that the demerit points be reduced, he did not address this issue in his written or oral submissions.
I am satisfied that I would not have made any different decision if I had had before me at the appeal hearing the amended notice of appeal filed by Mr Kiparoglou on 15 July 2021.
Costs
The respondent has sought the usual order for costs in the sum of $500 in accordance with r 104X of the Supreme Court Criminal Rules. Mr Kiparoglou has opposed the making of any order.
Given that the appeal was entirely without merit, I order Mr Kiparoglou to pay costs of $500 to the respondent.
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