R v Errigo
[2005] SASC 62
•23 February 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ERRIGO
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
23 February 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
PERMITTING PROPERTY TO BE USED
EVIDENCE - DOCUMENTARY EVIDENCE - JUDICIAL DOCUMENTS AND PROCEDINGS - CONVICTIONS
CONVICTION OF CO-ACCUSED
EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS RELATING TO BUSINESS RECORDS - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
Appellant convicted of taking part in the production of cannabis - Evidence that appellant was owner of, and resident on, property on which cannabis grown - Appellant's mother pleaded guilty to producing the cannabis - Mother chose not to give evidence at appellant's trial, following medical advice - Whether documentary evidence of mother's conviction was admissible - Discussion of s 42, s 45A and s 45B of the Evidence Act - Discussion of whether court document a "business record" - Refusal of Trial Judge to admit evidence of mother's conviction did not result in miscarriage of justice - Prosecution not required to prove that appellant did not produce the cannabis himself - Reference in Judge's summing up to jurors' "daily lives" and "commonsense" did not weaken effect of directions as to standard of proof - Whether a Computer Title Certificate was evidence that the appellant was the owner of the land at the date of the offence - Appellant's ownership of the land was not in issue at trial - Direction of Trial Judge did not result in miscarriage of justice - Judge's direction regarding effect of appellant's failure to give evidence was sufficient - Verdict not unreasonable - Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32; Evidence Act 1929 (SA) s 42, s 45A, s 45B, referred to.
R v Le [2003] SASC 2; (2003) 138 A Crim R 1; Bannon v The Queen (1995) 181 CLR 1; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Knight v The Queen (1992) 175 CLR 495, applied.
R v Zullo [1993] 2 Qd R 572; R v K; Ex parte Attorney-General (Q) [2002] QCA 260; (2002) 132 A Crim R 108; R v Martin [2002] QCA 443; (2002) 134 A Crim R 568, not followed.
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, discussed.
R v Frangos (1979) 21 SASR 331; R v Mason [2001] SASC 161; (2000) 77 SASR 105; R v Aziz [1982] 2 NSWLR 322; R v Carbone (No 2) (1976) 14 SASR 280; Thomas v The Queen (1960) 102 CLR 584; R v Assheton [2002] SASC 194; (2002) 82 SASR 589; In re Van Beelen (1974) 9 SASR 163; R v Martin (1983) 32 SASR 419; Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555; R v Porcione [2001] SASC 286; R v Perry (No 3) (1981) 28 SASR 112; Pope v The Queen (Full Court, 22 December 1993, Jdgt S4344, Unreported); R v Skeen (Full Court, 6 June 1966, Jdgt S5666, Unreported); R v Calabria (1982) 31 SASR 423; Nicholson v The Queen (1984) 12 A Crim R 231, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"knowingly take part in", "business record"
R v ERRIGO
[2005] SASC 62Court of Criminal Appeal: Debelle, Besanko and White JJ
DEBELLE J. I agree with the substance of the reasons of White J but with the qualifications added by Besanko J. I agree that the appeal should be dismissed.
BESANKO J: In my opinion this appeal should be dismissed. Subject to one matter, I agree with the reasons for judgment of White J.
In ground 4 of the Notice of Appeal, the appellant asserts that the Judge erred in law in refusing to admit either oral evidence or the Court record or a statement of facts previously agreed between the prosecution and Mrs Errigo as evidence that Mrs Errigo had pleaded guilty to, and been convicted of, knowingly taking part in the production of the same crop of cannabis.
The appellant was charged on Information with knowingly taking part in the production of cannabis, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (“CSA”). It was alleged that the offending conduct took place between 1st January 2002 and 26th March 2002. The facts asserted by the prosecution are set out in the reasons for judgment of White J. The charge against the appellant related to a crop of cannabis found by the police on 25th March 2002 on premises owned by the appellant.
In 2002, the appellant’s mother, Mrs Maria Errigo, was charged with taking part in the production of a controlled substance. She was also charged with producing a controlled substance, but that charge was subsequently withdrawn. A document entitled “Report of Prisoner Tried at the Criminal Sessions of the District Court of South Australia Held at Adelaide” signed by a District Court Judge and by his associate shows that the offence alleged against Mrs Errigo of taking part in the production of a controlled substance took place on 25th March 2002, that she pleaded guilty to the charge and that she was convicted on 2nd December 2002 and sentenced on 26th February 2003. I will call this document, “the report”. When Mrs Errigo was sentenced for the offence, a statement of agreed facts was put before the sentencing Judge and it included a statement that Mrs Errigo was approached by persons from the same ethnic community who prevailed upon her to grow cannabis and that she agreed to produce cannabis and had an expectation of significant commercial gain from the venture.
At the trial, the appellant sought to tender in evidence the fact of Mrs Errigo’s guilty plea and conviction for taking part in the production of a controlled substance and the statement of agreed facts. The trial Judge ruled that neither matter should be received in evidence.
The appellant made two attempts to tender evidence of the fact of Mrs Errigo’s guilty plea and conviction. At first he tried to elicit this evidence in the course of the cross-examination of a police officer who was involved in the investigation. The police officer had not been present in court when the guilty plea was taken and the conviction recorded, and the Judge was correct to reject the attempt to elicit evidence which would have been hearsay. Later, the appellant sought to tender the report and the Judge rejected the tender on the ground that the report was irrelevant. The focus of the appellant’s submissions on the appeal was this decision by the Judge.
The Judge rejected the tender of the statement of agreed facts and he was correct to do so. The facts were agreed in other criminal proceedings and they were agreed for the purpose of the sentencing of Mrs Errigo. They were not admissible in the trial of the charge against the appellant.
I return to the Judge’s decision to reject the tender of the report. The report does not on its face state that the offence committed by Mrs Errigo related to the same crop of cannabis as that which was the subject of the charge against the appellant, but that appears not to be disputed and I will proceed on that assumption. Section 32(1)(b) of the CSA creates an offence of taking part in the production of cannabis. Taking part in the production of cannabis includes, by virtue of s 32(4), various acts by a person, namely if the person:-
“(a)takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b)provides or arranges finance for any such step in that process; or
(c)provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.”
Clearly, in relation to the production of a particular crop of cannabis more than one person may be guilty of the offence of taking part in the production of that crop. For example, more than one person may take or participate in any step or cause any step to be taken in the process of production. Furthermore, a person or persons may provide finance or premises in the relevant sense, but have no other involvement.
I would characterise the report as a statement by a third party that Mrs Errigo admitted that, in relation to the crop of cannabis the subject of the charge against the appellant, she had taken part in the production of cannabis. The report contains nothing to indicate the precise conduct of Mrs Errigo which constituted the offence of taking part in the production of the cannabis. The report in no way excludes the appellant’s criminal involvement in the production of the crop in any number of ways. In fact, in his directions to the jury the Judge said that there was no evidence of the appellant taking any step or participating in any step or causing any step to be taken in the process of producing the cannabis and that the case was not one of involvement in the production of the cannabis. The appellant was the owner of the relevant premises and his criminal responsibility was put to the jury in terms of s 32(4)(c) of the CSA.
With these matters in mind, I turn to consider if the Judge was right to reject the tender of the report on the ground that it was irrelevant. Despite the way in which the prosecution case was ultimately put to the jury, the charge against the appellant was that he knowingly took part in the production of cannabis. I think that the report was relevant to the facts in issue in two possible ways. The appellant was entitled to an acquittal if it was a reasonable possibility that he did not take part in the production of the cannabis. An admission by a third party that she had taken part in the production of the same crop of cannabis may, with other evidence, raise such a reasonable possibility. As it happens there was little, if any, other evidence, but I do not think the report was irrelevant for that reason. Leaving aside the possibility of the Judge asking counsel to identify the other evidence before ruling on the tender or receiving the evidence conditionally upon the other evidence being called, I think the evidence was relevant and the evidence should not have been rejected on the ground that it was irrelevant.
The evidence was also relevant because, with other evidence, the jury may have reasoned that if one of the persons involved in the cultivation of the cannabis crop was the appellant’s mother, then it was more likely that he knew of it and suffered or permitted it to take place.
That is not the end of the matter in terms of the admissibility of the report. The report contains an out-of-court statement by a third party. As such it offends the rule against hearsay.
White J has referred to s 42 of the Evidence Act 1929 (SA) (“Evidence Act”). That section may support the admission of the report, but as the section was not the subject of submissions on the appeal, I would be reluctant to decide the present issue on that ground.
The appellant submitted that the report was admissible as an exception to the rule against hearsay. It was said that the exception applied to out-of-court statements by a third party referring to that party’s criminal responsibility for the offence with which the accused is charged, but beyond that there was little debate as to the precise scope of the suggested exception. The appellant acknowledged that there were two authorities of this Court which are against the existence of an exception of the nature which he identified (In re Van Beelen (1974) 9 SASR 163; Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555), but he asked this Court to reconsider those decisions. I would decline that invitation because I think there is authority binding on this Court which is against the existence of an exception of the nature identified by the appellant. In Bannon v The Queen (1995) 185 CLR 1 the High Court confirmed that there was no such exception. In that case, the Court declined to extend the law such that there is an exception to the rule against hearsay in the case of out-of-court statements by a co-accused or third party exculpatory of an accused in terms of the offence with which he or she is charged. Dawson, Toohey and Gummow JJ said (at 22 –23):
“As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party. No Australian court, at least in any reported decision, appears to have taken the approach adopted by the Court of Appeal in England in R v Beckford that if the consequences of inadmissibility are that the jury does not hear an alternative version of the events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside.”
Various members of the Court discussed overseas authorities which have allowed an exception and the nature and type of conditions and restrictions to which such an exception is subject (per Brennan CJ at 12; Dawson, Toohey and Gummow JJ at 28; McHugh J at 32 –33).
It might be said that even if an exception was to be created, the “statement” of Mrs Errigo would not fall within it because it contains no statement, express or implied, excluding the appellant’s involvement in the production of the crop of cannabis and is therefore not sufficiently reliable and probative in respect of the matter for which it was put forward by the appellant.
The appellant put an alternative submission and that was that the report was admissible by virtue of the provisions of s 45A or s 45B of the Evidence Act 1929. White J has identified one difficulty with the application of s 45A in the case of the report. Another obstacle to the acceptance of the appellant’s submission is this Court’s decision in Question of Law Reserved (No 3 of 1997) (supra). In that case the Court considered the application of ss 45A and 45B in the case of the possible admission of out-of-court statement by a co-accused which was said to be exculpatory of the other accused. Prior J said (at 562 – 563):
“It was further submitted before this Court, though not to the trial judge, that even if the transcript of interview was not otherwise admissible it was admissible pursuant to ss 45A and 45B of the Evidence Act 1929 (SA).
That argument must be rejected. Whatever else may have been said in other cases, the finding of unfairness by the trial judge, the rule against hearsay and the real purpose of those provisions make such an argument untenable. As Bray CJ put it in O’Leary v Lamb, those provisions are not to make admissible that which would be inadmissible. The section may apply should proof of an inconsistent statement become a relevant issue in the trial.”
Perry J said (at 570):
“I agree with Prior J that the argument that s 45a and 45b of the Evidence Act 1929 (SA) afford a means by which Wanganeen’s out-of-court statements now in question might be adduced in evidence at the behest of Smith, should be rejected. Both of the sections are essentially facultative in their operation. They are designed to facilitate proof, rather than to provide grounds of admission of evidence which would otherwise be inadmissible.
In any event, it would arguably be ‘otherwise contrary to the interests of justice’ within the meaning of subs 45a(2)(c) and subs 45b(3)(c) to allow the use of either section to facilitate the introduction into a criminal trial of hearsay evidence, against the objection of the accused most directly affected by it.
Be that as it may, whatever view may be taken as to the scope of the Evidence Act provisions, they could not properly be applied so as to defeat the operation of s 74E of the Summary Offences Act.”
Williams J said (at 574):
“I agree with the other members of this Court that the provisions of ss 45A and 45B of the Evidence Act 1929 (SA) (which facilitate manner of proof) do not operate to render admissible the contents of the transcript of interview with Wanganeen.”
It may be that, with respect, the reasoning of Prior J that ss 45A and 45B do not make admissible that which would be inadmissible may need to be reconsidered in light of decisions of this Court in R v Calabria (1982) 31 SASR 423 and Nicholson v R (1984) 12 A Crim R 231.
However, even if the report was prima facie admissible under one or other of s 45A and s 45B, it would still be necessary to consider the disqualifying factors in s 45A(2) and s 45B(3) particularly as it might be said that the report was not sufficiently reliable or probative in respect of the matter for which it was put forward by the appellant. However, it is unnecessary to pursue these issues any further. Even if the report should have been admitted under one of these sections, I am satisfied that the absence of the report has not given rise to the risk of a miscarriage of justice. Having regard to the evidence before the jury and the way in which the prosecution case was put to the jury the report was of little, if any, probative value in favour of the appellant. If anything, as White J has observed, it may have been used by the jury with other evidence to support the conclusion that the appellant was guilty of the offence with which the appellant was charged. For these reasons, I reject the challenge in ground 4 of the Notice of Appeal.
WHITE J:
Introduction
This is an appeal against conviction.
Following a trial by a jury in the District Court, the appellant was found guilty of the offence of taking part in the production of cannabis, in contravention of s 32(1)(b) of the Controlled Substances Act 1984.
Police attended at the property at Lot A, Dalkeith Road, Munno Para Downs at about 3.30 am on Monday 25 March 2002. That property comprised 4.2 hectares (approximately 10 acres). The property was generally rectangular in shape, having a frontage to Dalkeith Road of about 115 metres and a depth of approximately 360 metres. There was a house and two sheds at the front, separated from the rest of the property by a 1.8 metre high fence, located about 20 metres to the rear of the house. Behind the fence was an almond orchard. In between the rows of almond trees, the police found four rows of cannabis plants at various stages of maturity. The rows were approximately 50-60 metres long. The cannabis plants ranged in height from 60 centimetres to 200 centimetres. There were 195 plants in all. The cannabis plants were watered by an irrigation system and from a hose connected to a tap located at the back of the house.
There was evidence that the 200 centimetre high plants must have been present for three-and-a-half to four months.
The police who attended noted a very strong smell of cannabis. In one of the sheds, they found a wiring system of the type commonly used to hang cannabis plants for drying purposes. The police also saw evidence of part of the area behind the fence having been recently ploughed.
When the police attended, they did not enter the property immediately. However, the appellant came from the back of the house and approached the police at the front gate inquiring as to their purpose. On being told that purpose, the appellant permitted the police to enter the property. Shortly afterwards, the appellant brought his mother to the police and she had a conversation with them.
The appellant did not give evidence at his trial. His father died on 16 October 2002 before the trial. It was an agreed fact that his mother had a cardiac condition and, on the advice of her doctor, had chosen not to give evidence.
The Case Against the Accused
The prosecution case was wholly circumstantial. Evidence was led that the appellant was the owner of the property. There was an issue on the appeal about the efficacy of this evidence and about the direction which the trial Judge gave on the topic of ownership. I will return to this issue later.
The prosecution asked the jury to infer that the appellant was resident on the property and that he had been so residing for at least several months prior to 25 March 2002. In addition to pointing to his presence at the property at approximately 3.30 am on 25 March 2002 when the police attended, the prosecution led evidence that the appellant had given as his address the address of the property when he had been charged shortly after 9.00 am on 25 March 2002 and that the address of the property had been shown as the appellant’s address on the bail agreement into which he entered later. Next, the prosecution tendered a copy of a Certificate of Registration of a motor vehicle registered in the name of the appellant for the period 14 July 2001 to 13 July 2002 in which the property was shown as the address of the appellant. Evidence was given that that vehicle was present on the property when the police attended in the early hours of 25 March 2002. Finally, there was evidence that the appellant’s driver’s licence, issued on 27 January 1999, showed as his address the address of the property.
The prosecution case was that it could be inferred that the appellant was an occupant of the property both on 25 March 2002 and at least for some months prior to that date. The prosecution case then was that it could be inferred from the appellant’s ownership and occupancy, the size and number of cannabis plants being grown, the period during which they must have been present and the very strong smell which emanated from the plants that the appellant must have known of the presence of the plants. The prosecution case was that the appellant had taken part in the production of cannabis by providing the premises of which he was owner for the cultivation of the cannabis.
The Appeal to this Court
A number of grounds of appeal were argued. In summary they were:
1.that the trial Judge erred as a matter of law in his directions to the jury concerning the elements of the offence of taking part in the production of cannabis, with respect to the burden of proof, and with respect to the fact that the appellant had not given evidence;
2.that the trial Judge had erred in allowing the prosecution to admit into evidence the appellant’s bail agreement;
3.that the trial Judge was in error in refusing to allow the appellant to lead evidence that the mother of the appellant had previously pleaded guilty to, and had been convicted of, the offence of knowingly taking part in the production of the same crop of cannabis;
4.that the directions of the trial Judge with respect to a number of aspects of the circumstantial case were inadequate; and
5.that a miscarriage of justice had occurred and/or the verdict was unreasonable and/or unsafe.
The Offence of Taking Part in the Production of Cannabis
Section 32(1) of the Controlled Substances Act 1984 provides:
“A person must not knowingly –
(a)manufacture or produce a drug of dependence or a prohibited substance; or
(b)take part in the manufacture or production of such a drug or substance; or
(c)sell, supply or administer such a drug or substance to another person; or
(d)take part in the sale, supply or administration of such a drug or substance to another person; or
(e)have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.”
Section 32(1)(b) makes it an offence for a person knowingly to take part in the production of a prohibited substance. Cannabis is a prohibited substance. Section 32(4) elaborates (relevantly) the circumstances in which a person takes part in the production of a prohibited substance. It provides:
“Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person –
(a)takes, or participates in, any step, or causes any steps to be taken, in the process of that manufacture, production, sale, supply or administration;
(b)provides or arranges finance for any such step in that process; or
(c)provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.”
The prosecution alleged in this case that the appellant, as owner, had knowingly suffered or permitted cultivation to take place on his property.
The Directions as to the Elements of the Offence: Knowledge
The elements which the prosecution had to establish beyond all reasonable doubt to make out the offence were:
(i) that the appellant was the owner of the property;
(ii) that cannabis was being grown on the property;
(iii)the appellant knew that a substance, the nature of which was a drug prohibited by law, was growing on his property;
(iv)that the appellant, knowing of the cannabis, had permitted or allowed it to be grown on his property.
The trial Judge outlined these elements to the jury. On several occasions whilst he was outlining the elements of the offence, the trial Judge emphasised to the jury that the conduct of the appellant constituting the taking part in the production of the cannabis had to be a knowing participation. The trial Judge explained to the jury what was involved in “knowing participation”. He said:
“What the prosecution must prove, either by direct evidence or inference, is that Mr Errigo knew of facts or circumstances which would constitute suffering or permitting the production of cannabis and that he knew that the substance was cannabis, a drug to which the Act applies.
To put it another way: the Crown is required to prove beyond reasonable doubt that Mr Errigo had a conscious mental recognition that a substance was growing on his property which was a drug whose nature was such that it was prohibited by law.” (Emphasis added.)
No complaint was made about those aspects of the trial Judge’s directions. Later in his summing-up, after referring to some of the evidence, the Judge made a summary of the principal issue in the trial as follows:
“The Crown has to prove beyond reasonable doubt that the accused knew about the evidence of the crop. That is not accepted by the defence. The Crown says that you should infer that the accused should have known of the substantial crop which was in the orchard at the back of Mr Errigo’s backyard. The defence is that the Crown evidence does not establish that he must have known of the existence of the crop. There is a possibility that the crop could have been cultivated by somebody else. As I have said before, there is no actual or direct evidence that the accused did know of the crop. What the Crown asks you to do is to draw an inference. If the Crown has satisfied you beyond reasonable doubt that Mr Errigo did know of the existence of the crop but did nothing about it, that could constitute suffering or permitting the crop and that would amount to taking part in the manufacture of the drug.
So after all those words the case really comes down to the question of whether you can draw inferences and can be satisfied beyond reasonable doubt that Mr Errigo knew of the existence of the crop on his land prior to 22 March 2002.”
Mr Peek QC for the appellant complained of the statement that the Crown case was that the jury should infer that the appellant “should have known” of the cannabis crop. It was said that that introduced into the jury’s mind the notion that the requisite knowledge could be found to be established if it was satisfied that a reasonable person in the appellant’s position would have known of the presence of the cannabis whereas the jury had to be satisfied that the appellant had actual knowledge that cannabis was being grown and with that knowledge had permitted it to occur.
Read in isolation the phrase “should have known” is capable of conveying the meaning for which Mr Peek QC contended.
However, in the circumstances of the Judge’s summing-up as a whole, I do not consider that the expressions would have been understood in that way by the jury. Three considerations lead me to that conclusion. The first is that on several occasions, both before and after using the words complained of, the trial Judge reminded the jury of the need for them to be satisfied that the appellant did, as a matter of fact, know of the presence of the cannabis. The trial Judge explained the concept of knowledge to the jury by using the phrase “a conscious mental recognition”.[1] The second is that, read in context, the words “should have known” mean “must have known”; that is that the appellant did have actual knowledge of the crop and not just that, as a reasonable person, he should have known that fact. The Judge’s summary, in the sentence which immediately followed, of the defence submission that the Crown evidence does not establish that “he must have known” confirms that view of the matter. The third consideration is that no complaint was made by the appellant’s then counsel at the conclusion of the Judge’s summing-up about that aspect of the summing-up. The absence of any expression of concern at that time is an important consideration in considering whether, in the atmosphere of the trial, the words used by the Judge were regarded as conveying a misleading impression.[2]
[1]Cf R v Frangos (1979) 21 SASR 331 at 339 per Walters J; R v Mason [2000] SASC 161; (2000) 77 SASR 105 at 122-3 [75] – [76] per Bleby J.
[2]R v Aziz [1982] 2 NSWLR 322 at 331; R v Carbone (No 2) (1976) 14 SASR 280 at 287-8 per Bray CJ.
In my view this ground of appeal is not made out.
Trial Judge’s Directions: Onus of Proof
The appellant submitted that, whilst the trial Judge had instructed the jury on several occasions of the need for it to be satisfied of the guilt of the accused beyond all reasonable doubt, certain things which he had said would have diluted that standard in the mind of the jury. In particular, it was submitted that the jury was encouraged to treat the decision required of them in the jury room in the same way as they would a decision in their everyday lives. In that way, the “severity of the true standard” had been lessened. Reliance was placed in this respect on the judgment of the High Court in Thomas v The Queen (1960) 102 CLR 584 at 596.
The trial Judge told the jury:
“The administration of justice is a practical business. You are involved in that practical business and you are asked to act as commonsense responsible persons in assessing the evidence and the issues in this case when you have to come to a verdict.”
Later, the trial Judge told the jury that because the case against the appellant was circumstantial, it was being asked to draw inferences from facts which it found established. The trial Judge said that the drawing of inferences is a commonsense matter (“we do it constantly in our daily lives without thinking about it”). He then went on to give the jury the commonly used example of the inferences which may or may not be drawn when a telephone goes unanswered. Having given that example, the trial Judge continued:
“It is part of your function to apply your commonsense and experience of life to the process of deciding what inferences can be drawn from the facts of which evidence has been given by the witnesses.”
Later, the trial Judge again referred to the jury using its experience and commonsense in assessing the evidence and deciding what facts it found established.
It was submitted that these passages, and the example used by the Judge, would have weakened the effect of the directions elsewhere given that the requisite standard of proof was proof beyond all reasonable doubt.
Contrary to the appellant’s submission, the trial Judge did not suggest to the jury that they were to consider whether the charge against the accused was established in the same way that they made decisions in their everyday lives. The only reference to “daily lives” was in the example the Judge used concerning the drawing of inferences. As already noted, this is an example commonly used by Judges in this State. It was used in this case by way of an example in the introduction to the jury of the process of reasoning which reliance on circumstantial evidence entailed. Immediately after giving the example, and then telling the jury that it was part of their function to apply their “commonsense and experience of life to the process of deciding what inferences can be drawn” the trial Judge went on to say:
“However, I stress that before you can draw and act upon any inference, you must first be satisfied beyond reasonable doubt that it is the only rational and reasonable inference which emerges from the relevant facts.”
Furthermore, the jury was told numerous times in the course of the summing up that they must be satisfied of the guilt of the accused beyond all reasonable doubt. They could not have been under any misapprehension about the requisite standard of proof required of the prosecution.
I am also satisfied that the jury would have understood the trial Judge’s reference to use of their commonsense and experience as suggesting no more (and no less) than that they use commonsense in considering whether the prosecution case had been established beyond all reasonable doubt. This was an appropriate direction.
I note that a submission similar to that just outlined was made, and rejected, in the appeal in R v Le[3]. In my opinion the submission should also be rejected in this case.
[3] [2003] SASC 2; (2003) 138 A Crim R 1 at 7 [26].
Trial Judge’s Directions: Ownership of the Land
The prosecution tendered a Computer Title Certificate issued by the Registrar-General with respect to the land at Lot A, Dalkeith Road, Munno Para Downs. This showed that as at 3 April 2003 the appellant was the registered proprietor of that land. It also showed that the title (Volume 5107 Folio 96) had been issued on 6 February 1993. This appears to be the date on which the title was issued rather than the date on which the appellant became the registered proprietor.
The trial Judge told the jury that the appellant’s ownership of the land was of no concern. He said: “You have the Certificate of Title. Ownership is not an issue in this case.”
It was submitted that this direction was a misdirection because all the Registrar-General’s certificate showed was that the appellant was the registered proprietor of the land as at 3 April 2003. It did not show that the appellant was the owner of the land on 25 March 2002, let alone that he was the owner during the period of three to four months preceding that date.
In relation to the effect of the certificate, the submission is correct. However, the trial Judge’s direction was not a misdirection. It is apparent that the appellant’s ownership of the land at relevant times was not an issue during the trial. On the contrary, the trial was conducted on the basis that it was common ground that the appellant was owner at relevant times. This was made plain during a number of submissions of the appellant’s then counsel. For example, in the course of making a submission that there was no case for the appellant to answer, it was said by the appellant’s then counsel:
“There is no evidence of occupancy of my client of the premises. The evidence of him being the owner, of course, establishes one of the elements of the offence, but does not take it any further.”
In the course of the same submission it was later said:
“Ownership is an essential ingredient. Under sub-s (4)(c) it must be proved that he is the owner. That has been proved.”
Then, in the course of his address to the jury, the appellant’s then counsel told the jury that it was not disputed that the appellant was the owner of the property. Later counsel said:
“We know he owns the house but, again, I suggest that does not mean he occupies it.”
Finally, at the end of the summing up of the Judge to the jury, the appellant’s then counsel sought a further direction on the topic of the control of the appellant of the land. In making that submission, the appellant’s then counsel said:
“There is a danger that a jury would think that if he is the owner, which is not disputed, that answers the question of whether he had control, that is, ownership and control are quite discrete questions and discrete elements.”
The passages which I have quoted show clearly that no issue at all was taken at the trial about the appellant’s ownership of the land. That being the common basis upon which the trial was conducted, it is not open now to the appellant to complain of the trial Judge’s direction with respect to ownership of the land by reference only to the Certificate tendered by the prosecution. In my opinion, there is no substance in this ground of appeal.
Direction to Jury: Accused not Giving Evidence
Finally, in relation to the directions to the jury, the appellant complained that the trial Judge had not given the jury the full direction suggested in Azzopardi v The Queen.[4] Gaudron, Gummow, Kirby and Hayne JJ said:
“… if an accused does not give evidence at trial it will almost always be desirable for the Judge to warn the jury that the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the Judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.”
[4] [2001] HCA 25; (2001) 205 CLR 50 at 70 [51].
In this case, the trial Judge said:
“An accused on trial is entitled to give evidence in his defence or refrain from giving evidence. Mr Waye told you yesterday that Mr Errigo elected not to give evidence. That choice was his. That is his legal right. No inference adverse to Mr Errigo can be drawn from the fact that he exercised his legal right. There may have been various reasons why he did not give evidence and you should not attempt to speculate on what those reasons might be in this case. As is the case in all prosecutions, it is for the Crown to prove its case beyond reasonable doubt, that is your inquiry: has the Crown proved its case beyond reasonable doubt?”
It is true that in that passage the trial Judge’s direction was not as extensive as suggested in Azzopardi. However, the trial Judge’s direction did tell the jury that the appellant was exercising a legal entitlement and that no inference was to be drawn against him by reason of his exercise of that entitlement. Whilst it would have been appropriate for the trial Judge to instruct the jury in the manner suggested in Azzopardi, the absence of the complete direction in this case does not, in my opinion, taint the jury’s verdict.
The Elements of the Offence: Involvement of Another
The appellant submitted that it was necessarily implicit in the concept of a person suffering or permitting the taking of a step in the production of cannabis on land which he owns that there is a person, other than the accused person, who takes that step. A person cannot, sensibly, suffer or permit himself or herself to take that step. Hence, it was submitted that where the prosecution alleges that the offence of taking part in the production of cannabis is comprised of the accused person’s conduct in suffering or permitting a step in the production of cannabis to be taken on land which he or she owns, the prosecution must prove the “involvement” of someone other than the accused in the production of the crop. Absent such proof, it was submitted that the prosecution does not exclude a hypothesis consistent with innocence, viz., that the accused himself was the grower of the crop.
In this case, it was obvious enough that one or more persons were growing the cannabis. However, Mr Peek’s submission was that the prosecution had not proved that the appellant had permitted someone else to grow cannabis on his land because the prosecution had not excluded the possibility that the appellant himself was the grower of the crop.
In considering this submission, it is necessary to have regard to the offence created by s 32(1)(b) of the Controlled Substances Act and to its inter-relationship with s 32(4). Section 32(1)(b) creates (relevantly) the offence of taking part knowingly in the production of cannabis. Section 32(1)(d) creates the offence of taking part in the sale, supply or administration of a drug or prohibited substance. The conduct which constitutes the offence in each case is the taking part knowingly in the identified activity.
Section 32(4) does not create any separate or additional offence. It is complementary to s 32(1)(b) and s 32(1)(d). Section 32(4) identifies conduct, for the purposes of s 32(1)(b) and s 32(1)(d), which will constitute taking part in the identified activity. In other words, s 32(1)(b) creates an offence[5] which can be committed in one or more of the ways specified in s 32(4). Section 32(1)(b) and s 32(4) do not create alternative offences. The appellant was not charged with alternative offences. The approach to be applied in cases of alternative offences[6] was inapplicable in this case.
[5]It is unnecessary for present purposes to consider whether it is one offence or more than one offence.
[6] As to which, see for example R v Assheton [2002] SASC 194; (2002) 82 SASR 589.
Relevantly to the circumstances of the present case, the offence may be committed by the accused person himself actively cultivating the cannabis crop, or by the accused person permitting another to cultivate the crop on land owned by him. But the offence committed in each case is the same offence, viz., taking part knowingly in the production of cannabis.
In the present case, the appellant was charged with taking part in the production of cannabis. The information particularised the charge by alleging that the appellant “between the 1st day of January 2002 and the 26th day of March 2002 at Munno Para Downs, knowingly took part in the production of cannabis, a prohibited substance”.
The prosecution did not know and could not allege the precise nature of the participation of the appellant in the growing of the cannabis. Relying on s 32(4)(c), it sought to make out the charge by adducing evidence that the appellant had knowingly permitted his property to be used for the growing of the cannabis. In many respects, such a passive participation was the minimum which the evidence available to the prosecution allowed it to allege. But it would be fallacious to think that the prosecution thereby impliedly asserted that the appellant had not been involved in any other way. To establish the offence by reliance on sub-s (4)(c) with circumstantial evidence, the prosecution had to exclude any reasonable hypothesis consistent with innocence, that is to say, consistent with innocence of the charge of taking part in the production of cannabis. A hypothesis that the accused may have committed the very offence with which he is charged but in some other manner contemplated by sub-s (4) was not a hypothesis consistent with innocence.
Contrary to the concession made by Mr Brebner QC for the DPP, it was not necessary for the prosecution to exclude, as a reasonable possibility, that the appellant was the person growing the crop. It was sufficient for the prosecution to prove by circumstantial evidence that the appellant had either knowingly permitted his property to be used for the growing of the cannabis evidence, or that he himself had grown the cannabis. It was not necessary, as part of its case that the appellant had knowingly permitted his property to be used for the crop, for the prosecution to prove beyond all reasonable doubt a negative proposition, namely, that the accused was not himself the grower of the crop.
This ground of appeal is not made out.
The Bail Agreement
Mr Peek QC submitted that the bail agreement signed by the appellant on either 25 or 28 March 2002 at 6 pm should not have been admitted into evidence.[7] The address of the appellant shown on the bail agreement was the address at Dalkeith Road at which the cannabis was found. The prosecution submitted that the bail agreement was admissible because it showed that as at the date the appellant signed the document he had acknowledged his address as being that of the subject property. That supported an inference that he was resident at that property at that date. That evidence when taken with other evidence suggesting that the appellant had been resident at the property prior to 25 March 2002 was capable, it was submitted, of supporting the inference that the appellant had been residing at the property at 25 March 2002 and, for that matter, for some months prior to that date.
[7]There is uncertainty as to the precise date because the date is not written clearly. It is more likely to be 25 March 2002.
In my opinion, the bail agreement when taken together with other evidence was capable of supporting that inference and was properly admitted. The appellant’s submission on this topic seemed to confuse issues of admissibility with issues of weight.
Ground 4: Plea of Guilty by Appellant’s Mother
The appellant sought to lead evidence at the trial that his mother had pleaded guilty to, and had been convicted of, the offence of knowingly taking part in the production of the same crop of cannabis. Initially, the appellant had sought to lead this evidence in cross-examination of a police officer. On the objection of the prosecutor, the trial Judge disallowed the questioning on the basis that the knowledge of the police officer on this subject matter had been conveyed to him by others. It was accordingly hearsay. The disallowance of the questions to the police officer on this topic was plainly correct: the police officer was being asked to give evidence of what had been said by the appellant’s mother on an occasion when he had not even been present.
Later, the appellant sought to have admitted into evidence a statement of agreed facts reached between the appellant’s mother and the prosecution for the purposes of sentencing of the mother. It is not necessary to recite the full content of the statement. It is sufficient to note that it was agreed between the appellant’s mother and the DPP, for the purposes of her sentencing, that Mrs Errigo, at the instigation of persons “from the same ethnic community”, had agreed to produce cannabis in the expectation of a significant commercial gain and had assisted in the production of cannabis on the appellant’s property. The appellant sought to have this statement of agreed facts admitted in evidence on his trial because it suggested, in his submission, a hypothesis consistent with innocence, namely that it was others who had been involved in the cultivation of the cannabis crop.
The trial Judge refused to permit the statement of agreed facts to be tendered. He did so because the agreement was reached between parties other than the DPP and the appellant and further, because it had been expressly stated in the statement of agreed facts that the facts had been agreed “for the purpose of sentence”. There had been no agreement that those agreed facts could be used for any other purpose. Although it was said on appeal that this ruling of the trial Judge was wrong, no argument was developed in support of that submission. In my opinion, the ruling of the trial Judge was correct for the reasons which he gave.
Later, the appellant sought to tender a court record, which evidenced the plea of guilty of the mother, her conviction and the sentence imposed on her. The document was entitled “Report of Prisoner Tried at the Criminal Sessions of the District Court of South Australia”. It recorded the outcome of the charges brought against the mother, viz., her plea, the conviction and the sentence. It was signed by the Judge who dealt with the mother and by his Associate. Although, apart from the date of the offence, and the mother’s surname, there is nothing to show that the cannabis to which the charge against the appellant’s mother referred was the same cannabis which was the subject of the charge against the appellant, or even that Mrs Errigo was the appellant’s mother, no point was taken about this on the hearing of the appeal. The prosecution objected to the admission of the court record on grounds of relevance. The trial Judge upheld that objection. It was submitted that this ruling of the trial Judge was in error.
It was submitted that the court record was relevant in that it showed that someone other than the appellant was “involved”. It was consistent, it was said, with a hypothesis of innocence for the defence to lead evidence that someone, or some persons, other than the appellant were “responsible for the cannabis”. It was accepted that proof that someone else was “responsible for the cannabis” did not of itself establish that that person was solely responsible, or exclude the participation of the accused in the manner alleged by the Crown. It was submitted, however, that proof that someone else was responsible was a step in the hypothesis that someone else was wholly responsible, and further wholly responsible to the exclusion of any knowledge by the appellant.
One may accept that evidence of the plea of the mother could, with other evidence, be probative of the first of those links, i.e., that someone else was wholly responsible, but its ability to assist in supporting an inference that the mother was wholly responsible without any knowledge of that involvement by her son is more doubtful.
There is, however, another way in which evidence of the mother’s admission of involvement in taking part in the production of the same crop of cannabis was relevant. If the jury was satisfied that the appellant was living on the property with his parents in the period of three-and-a-half to four months prior to 25 March 2002 when the crop was being grown, evidence of the mother’s involvement in producing the crop was capable of supporting the inference that the appellant must have known of the presence of the crop and had permitted it to be grown. In short, in my opinion, the evidence which the appellant sought to lead of his mother’s conviction was relevant in a way which was adverse to the appellant.
In this State, it has been held that evidence of an out of court confession to an offence by a third party is not admissible on the trial of a person charged with the same offence as an exception to the hearsay rule.[8] In Bannon v The Queen (1995) 181 CLR 1, Dawson, Toohey and Gummow JJ held that there was no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party.[9] Deane J was in general agreement with the reasons of Dawson, Toohey and Gummow JJ. That position should be taken as representing the law of this State. Although the appellant pointed to a different approach having been taken in Queensland,[10] this case does not provide an occasion to revisit the point as decided in previous Full Court decisions or by the High Court.
[8] In re Van Beelen (1974) 9 SASR 163; R v Martin (1983) 32 SASR 419 at 439 per Mitchell J; Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555 at 560-563 per Prior J (with whom Williams J concurred), at 567-570 per Perry J; R v iello2001] SASC 286 at [49].
[9] (1995) 185 CLR 1 at 22.
[10] R v Zullo [1993] 2 Qd R 572 at 574; R v K; Ex parte Attorney-General (Q)[2002] QCA 260; (2002) 132 A Crim R 108; R v Martin[2002] QCA 443; (2002) 134 A Crim R 568.
In this case, the appellant did not seek leave to present evidence of an out of court confession: rather he sought to adduce evidence of what had occurred on the arraignment of his mother, being the plea of guilty, her conviction and subsequent sentence.
The appellant did not refer at trial, or on the appeal, to s 42 of the Evidence Act 1929 (SA). Section 42 permits the information, trial and conviction of a person for an indictable offence in the District Court to be proved by a certificate purporting to be under the hand of the Registrar of the District Court or the associate or other officer having the custody of the records of that court. This mode of proof is in addition to and not to the exclusion of any other authorised mode of proof: s 42(5).
Section 42 could have been used in this case to prove the conviction of the appellant’s mother if the fact of the conviction was a fact relevant in the trial of the accused.
The appellant submitted that s 45A of the Evidence Act rendered the record of outcome admissible. Section 45A(1) provides that “an apparently genuine document purporting to be a business record” shall be admissible without further proof and shall be evidence of any fact stated in the record or of any fact which may be inferred from the record. Section 45A(2) provides for circumstances in which a court may exclude from admission into evidence a document which would be otherwise admissible under sub-s (1).
In order to be admissible under s 45A(1) the document must purport to be a “business record”. A business record is defined in s 45A(4) to mean:
“(a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)any reproduction of any such record by photographic, photostatic, lithographic or other like process.”
The word “business” is defined in s 45A to mean:
“Business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality”.
Section 45A makes admissible a document prepared in the ordinary course of a business. My present view is that it is not appropriate to describe the District Court as a business or its records as business records. I accept that in the context of s 45A, the word “business” may have a connotation which extends beyond that of a commercial undertaking.[11] Furthermore, it is apt to speak in some situations of the business of a court in referring to the responsibilities, functions and activities performed by a court, but that is not the same thing as saying that the court is, itself, a business. On the other hand, given the presence of s 42 of the Evidence Act which provides a ready means of proof of a conviction, there is no need to give the word “business” in s 45A an expanded meaning so as to hold that the District Court is a business and that the records of the outcomes of trials before it are business records.
[11] Cf R v Perry (No 3) (1981) 28 SASR 112 at 115.
For the purposes of deciding the present case, it is unnecessary to express a concluded view on this question. It would also be inappropriate to do so as we did not hear any submissions on this point.
In my opinion, it is also unnecessary, in the circumstances of this case, to consider whether a court record, other than a certificate of conviction as referred to in s 42 of the Evidence Act recording a plea of guilty and a conviction following that plea, is admissible under a common law exception to the hearsay rule.
The court record which the appellant sought to tender in this case is sufficiently similar to a certificate of conviction so as to come within s 42. Had the trial Judge’s attention in this case been drawn to s 42, I think it likely that he would either have given the appellant an opportunity to obtain such a certificate, or alternatively, been prepared to treat the court record, signed as it was by the District Court Judge and his Associate, as a certificate of conviction.
In summary, I consider that the decision of the trial Judge to disallow the admission into evidence of the court record on the grounds that it was irrelevant was in error. Furthermore, I consider that the document could have been admitted into evidence pursuant to s 42 of the Evidence Act.
However, I do not consider that the refusal to admit the evidence has caused this trial to miscarry. If the jury had had the court record, it would almost inevitably have been used by them in a way which was adverse to the appellant. It is difficult to see how it could have been used in a way which was favourable to the appellant. The jury verdict, reached without knowledge that any member of the Errigo family was responsible for the crop, indicates that it was satisfied that the appellant knew of the crop and permitted its cultivation to occur. If it had had evidence of the mother’s involvement, it is reasonable to suppose that the jury would have thought it even more likely that the appellant, living on the property with his parents, knew that such a large crop of cannabis was being grown.
Accordingly, although the trial Judge erred in this aspect, I am satisfied that it has not caused a miscarriage of justice.
The Circumstantial Case
The appellant complained that the trial Judge failed to relate sufficiently his directions with respect to the circumstantial evidence to the facts of this case.
The trial Judge told the jury several times that before they could draw and act on any inferences, they had to consider what facts they found established, and what inferences they were prepared to draw from those facts. The trial Judge gave directions in standard terms to the effect that when he used the words “established” or “proved” he meant established or proved beyond all reasonable doubt. There is no reason to suppose that the jury would not have understood that direction. The trial Judge’s directions in this respect were favourable to the appellant because he did not distinguish between intermediate and incidental facts.
The trial Judge told the jury that before it could draw and act upon any inference, it had first to be satisfied beyond reasonable doubt that it was the only rational and reasonable inference which could be drawn. The jury was told, in effect, that any reasonable hypothesis, other than the guilt of the appellant, had to be excluded. No complaint was made about those directions. However, it was submitted that the trial judge should have given directions with respect to each piece of circumstantial evidence relied upon by the prosecution. For example, with respect to the car registration certification showing that the address of the appellant was the address of the subject property on 14 July 2001, it was submitted that the jury should have been instructed as to uncertainties in using that as a piece of evidence showing residence of the appellant at the property at any time, let alone in the months preceding 25 March 2002. It was submitted that the jury should have been told by the trial Judge of the possibility that the address had been used by the appellant for convenience, as would be the case if he was an itinerant. The jury should also have been directed, it was submitted, to consider the possibility that although the appellant had lived at the property as at 19 July 2001, he had moved out well before March 2002. Similar submissions were made with respect to the other documents relied on by the prosecution. It is not necessary to detail those submissions.
The trial Judge did not instruct the jury in relation to each document relied upon by the prosecution. Instead, he reminded the jury of the summary given by the prosecuting counsel in his summing-up of the facts from which it could be said to be inferred that the appellant was resident on the premises. That summary had referred to each of the documents upon which the prosecution relied. The trial Judge then reminded the jury that if it was satisfied as a fact that the appellant was resident on the property, it was then asked to infer that the appellant was aware of the presence of the cannabis crop.
In my opinion, the directions of the trial Judge were adequate. The trial in this case was quite short. Less than 48 hours elapsed from the opening of the prosecution case to the delivery of the jury verdict. The trial Judge summed up to the jury on the same morning as had both prosecution and defence counsel. The prosecution counsel in particular had canvassed in some detail the evidence of the facts from which he asked the jury to infer that the appellant was resident on the property at relevant times. The trial Judge was entitled to think that these matters were, after such a short trial, fresh in the minds of the jury. Furthermore, the issues were relevantly simple and straightforward. The summing-up of the trial Judge has to be understood as having occurred in this context. It should not, as some of the submissions on the appeal seem to suggest, be considered in isolation.
There are cases in which it is necessary for a trial Judge to direct the jury in some detail on the facts relied upon in a circumstantial case. The cases relied upon by the appellant[12] are examples. They are not, however, authorities for the proposition that such directions are required in all cases. In my opinion, for the reasons given above, this was not a case in which detailed directions as to the circumstantial evidence had to be related to the individual facts relied upon by the prosecution.
[12]Pope v The Queen (Full Court, 22 December 1993, Jdgt S4344, Unreported); R v Skeen (Full Court, 6 June 1966, Jdgt S5666, Unreported).
I note, furthermore, that no complaint of the type now made on appeal was made by the defendant’s counsel at the end of the summing-up of the trial Judge. In my opinion, the directions of the trial Judge have not been shown to be inadequate.
Unreasonable Verdict, Miscarriage of Justice/Error of Law
Finally, it was submitted that the cumulative effect of the errors of which the appellant complained indicated that the verdict of the jury was unreasonable, or constituted a miscarriage of justice.
In addition, it was submitted that the jury verdict was tainted by the errors of law said to have been made by the trial Judge in his directions. This latter aspect can immediately be put to one side. For the reasons which I have already given, with the exception of the decision of the trial Judge with respect to the admission of the court record concerning the mother’s conviction, I do not think that the trial Judge has made any error of law.
In relation to the submission that it was not open to the jury, on the evidence adduced by the prosecution, to be satisfied beyond reasonable doubt as to the guilt of the accused, the Court was referred to the well-known authorities of M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439 and Knight v The Queen (1992) 175 CLR 495. I accept that the Court must make its own independent examination of the evidence. In my opinion, it was open to the jury to conclude, beyond all reasonable doubt, from the fact of the appellant’s ownership of the property, the evidence which indicated that he was resident at the property, the size of the crop and the number of plants involved, and the length of time during which he must have been present, that the appellant was aware of the presence of the crop and had permitted its cultivation to occur. It was for the jury to determine whether or not it was so satisfied. In my opinion, even when all of the complaints of the appellant are considered in combination, it cannot be said that that was a conclusion which was not open to the jury.
Furthermore, I am also satisfied that in addition to there being evidence upon which the jury could reasonably have found the appellant guilty beyond all reasonable doubt, there was no miscarriage of justice in the jury verdict.
Conclusion
For the reasons which have been given, in my opinion this appeal should be dismissed.
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