R v Saedam
[2015] ACTSC 85
•1 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Saedam |
Citation: | [2015] ACTSC 85 |
Hearing Date(s): | 27 March 2015 |
DecisionDate: | 1 April 2015 |
Before: | Refshauge J |
Decision: | Abdulrahman Mohamad Saedam is granted bail on the following conditions: 1. That he appear in court when notified by the Registrar personally, or through his solicitor, of any date when he is so required to appear. 2. That prior to Mr Saedam’s release on bail Salim Youssef pay in cash to the Registrar of the Supreme Court by deposit into the Supreme Court bank account the sum of $5,000, with a written undertaking that this sum be forfeited to the Territory if Mr Saedam fails to appear in court in accordance with condition 1, such signed written undertaking may be provided in the first instance by facsimile transmission or a scanned document sent by email and is to be received at least in that form prior to his release on bail, such signed undertaking to include with that person’s consent that the deposit and undertaking continues to apply if bail is continued. 3. That he surrender to the Armadale Courthouse, Perth, by 4pm Thursday 2 April 2015, all passports, visas, and other government documents that may be used for international travel, for delivery to the Registrar of the ACT Supreme Court. 4. That he not contact or approach any diplomatic mission (Embassy, High Commission or Consulate) or any member of a diplomatic mission in person, by mail or electronically including by telephone, for the purpose of obtaining a passport, visa or other travel document. 5. That, upon his release, he travel by air and by the first available flight to Perth. 6. That until he is required to take his trial in Canberra he reside at 37A Walderton Avenue, Balga, Western Australia. 7. That he report every day between the hours of 11.00 am and 3 pm to the Officer-in-Charge of Morley Police Station in Western Australia. 8. That he not approach any port or airport of international departure save that he may be at the Canberra Airport or the Perth Airport but only for the purposes of travelling to Perth from Canberra or to Canberra from Perth and then in accordance with these conditions and while holding a valid airline ticket for such a journey. 9. That he not enter the Australian Capital Territory except to attend on his lawyers by prior arrangement and for the purpose of these proceedings and then for the shortest time reasonably necessary for that purpose. 10. That he not contact, directly or indirectly, or cause any person to contact, directly or indirectly, including by any electronic means such as SMS or the Internet, [the complainant]. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURSIDICTION, PRACTICE AND PROCEDURE – Bail – Engaging in sexual intercourse without consent – Assault – Assault with the intent of engaging in sexual intercourse – Theft – Domestic violence – Risk of flight – Applicant to reside interstate whilst on bail – Risk of reoffending – Risk that the Applicant may intimidate the complainant – Complainant has recounted the complaints |
Legislation Cited: | Bail Act 1992 (ACT), ss 9B, 21(1)(c), 22(1)(a) and (b), 43A Evidence Act 2011 (ACT), ss 38, 60, 66 |
Cases Cited: | Application of Haidy [2004] VSC 247 Director of Public Prosecutions v Nittes (Unreported, Supreme Court of Victoria, Crockett J, VicSC 556, 5November 1985) |
Parties: | The Queen (Crown) Adbulrahman Mohamad Saedam (Accused) |
Representation: | Counsel Ms J Campbell (Crown) Mr P Edmonds (Accused) |
File Number(s): | SCC 16 of 2015 |
Refshauge J:
Abdulrahman Mohamad Saedam, the Applicant, was arrested on 10 November 2014, and, following extradition proceedings in Western Australia, appeared in the ACT Magistrates Court on 13 November 2014, when he was charged with three counts of engaging in sexual intercourse without consent, one count each of assault, of assaulting the complainant with the intent of engaging in sexual intercourse with her and of theft.
He applied for bail, which was opposed, and apparently refused. He entered pleas of not guilty to each charge and, on 3 February 2015, was committed to this Court for trial. Curiously, the annotations on a number of the bench sheets in the Magistrates Court do not disclose that bail was refused and, even more curiously, all added to the committal order the notation, "Bail is continued but varied to include a condition that the accused notify forthwith any change of residential address to the registrar of the Supreme Court. Bail is granted in accordance with bail sheet." This annotation is followed by the signature of the committing Magistrate.
On one bench sheet, alongside this annotation, is, even more curiously, the annotation, "BNAF, bail not applied for, refused," which seems at least contradictory.
In any event, when Mr Saedam appeared in this Court on 12 February 2015 following the committal, he was remanded in custody to a date to be advised by the Registrar.
He has now applied for bail. The Crown opposed bail being granted. I heard the application on 27 March 2015 and I found it a difficult decision, which I reserved to give the application careful consideration.
The Allegations
A copy of the case statement was annexed to the affidavit of Mr Saedam's solicitor, filed in support of the application. The document, more particularly described in R v Goodwin (2009) 233 FLR 473, is a helpful statement of the Crown's allegations, on which applications for bail can be considered, as well as other pre-trial applications, such as for severance of the indictment, for leave to adduce tendency or coincidence evidence and the like.
The case statement does not, of course, permit me to make findings of fact about the events leading to the charging of Mr Saedam, but only to know the extent of the allegations, including such important matters for consideration of bail as the seriousness of the allegations against Mr Saedam and, sometimes, the strength of the Crown case.
The allegations may be summarised as follows from the case statement, supplemented by what I was told on the bail application. Mr Saedam and the complainant married in Syria in late 2012. Mr Saedam came to Australia very shortly after that and was granted a visa as a refugee. The complainant joined him about a year later. They appear initially to have lived in Perth. Mr Saedam's parents live in Perth.
While in Perth, the complainant left Mr Saedam and moved into a refuge, citing domestic violence. Detailed notes taken by the workers of the refuge for the period 19 July to 28 August 2014 show that she complained that Mr Saedam threatened her that, if she did not obey him, she would be sent back to Syria. It also shows complaints that Mr Saedam would "kick her out of the house, slap her and force sex". There were also complaints that he used his sponsorship of her, necessary for her immigration status, as a vehicle for exercising power over her. No charges were, however, laid from these allegations, and of course, no convictions followed.
The note showed that considerable care and assistance was readily provided to the complainant by the workers at the refuge, a vital part of the community's response to the serious problem of domestic violence, especially to vulnerable women, such as the complainant, with difficulties in her immigration status, language and cultural challenges.
The information was that by late August the complainant had reconciled with Mr Saedam and that they were now in Canberra, where they moved into premises in Holt. It appears that the relationship remained rather volatile and, after an argument on 18 October 2014, Mr Saedam slept on the couch in the lounge room and the complainant slept in the bedroom.
Early the next day, however, Mr Saedam went into the bedroom and climbed on top of the complainant, attempting to have sexual intercourse with her. She said, "Don't do that," and tried to push him away, but he continued to have penile‑vaginal intercourse with her, although the complainant was crying and trying to push him off.
Later that day, Mr Saedam verbally abused the complainant and threatened to withdraw his immigration sponsorship of the complainant's family to come to Australia, which caused the complainant to cry. He then again had penile‑vaginal intercourse with the complainant, who continued to cry, but otherwise did not move during this time.
The next day, 20 October 2014, Mr Saedam slapped the complainant and dragged her for about two metres by her hair, rolled her on her back, climbed on top of her and again had penile‑vaginal intercourse, though the complainant continued to struggle, hit his chest and push him away. He then verbally abused her again.
The complainant left the house at about 10 am and, after thinking carefully about her position at the bus stop at Kippax for some time, decided to report the matter; she caught a bus to the Belconnen town centre, where she went to the police station. When she arrived, she was described as distressed and made an initial complaint to police. She was further interviewed the next day and appeared still to be very upset, though she had calmed down. The complainant was examined by a medical officer. The medical officer found no physical injuries, though this was not conclusive that non-consensual sexual intercourse, even violent intercourse, had not occurred.
In the meantime, Mr Saedam had sought assistance from his family, who electronically transferred funds to him on 20 October 2014, with which he purchased a one-way airline ticket to Perth. He travelled later that evening to Perth on that ticket, the first available direct flight to Perth. A warrant was issued for his arrest on 24 October 2014, following the complaint made by the complainant and, on 10 November 2014 he was arrested in Perth and extradited to Canberra, as described above (at [1]).
Since leaving the family home, the complainant has been living in a refuge at an address unknown to Mr Saedam. She has, however, visited him at the Alexander Maconochie Centre (AMC). Records tendered show that she visited him on 18 February 2015 and has, until 26 March 2015, visited him on 24 occasions; that is, every two or three days.
On 20 March 2015, the complainant made a statutory declaration in which she declared that, at the time of making her statement to police, she was "a little tired and confused", that English was not her first language and that she "confused some details". She sought, in the statutory declaration, to clarify some of her answers to police questions.
She said that, in the first incident, she pushed Mr Saedam away and that he did not have sex with her. She then said that before the second incident she drank some alcohol, which was the first time she had done so. She did not reveal this because as a Muslim there was a religious prohibition on her drinking alcohol. She said that, on the second occasion that Mr Saedam had sex with her, "he did not force me to have sex", though they had had an argument and she was "not entirely willing". She declared that she did not push him away or indicate in any way that she did not want to have sex.
As to the incident the next day, she said that there was a further argument and that they both pushed each other. She said that her answers to questions "gave the impression that Mr Saedam violently grabbed her by the hair and dragged her into the next room". She then declared that, "This did not happen. We were both pushing each other and ended up in the next room."
No evidence was tendered to suggest that Mr Saedam has exerted any pressure on the complainant to make the statutory declaration. Police, however, have not since spoken to the complainant about the statutory declaration.
Mr Saedam has no prior convictions. He is 30 years old and has been in custody since 10 November 2014. No date has yet been set for his trial.
The complainant wrote a letter directly to the Court in respect of the bail application. It had not apparently been seen by either counsel for the Crown or for the Applicant. It was proper that I refer the matter to both parties. I did so. Mr Saedam's counsel then tendered the letter. The Crown did not object. That was very proper, even though it could be said to be entirely unsupportive of the Crown's opposition to the bail application.
Section 23A of the Bail Act 1992 (ACT) requires the prosecution to tell the Court of any "concerns of which the prosecution are aware expressed by a victim about the need for protection from violence or harassment by the accused person". In my view, this includes the fact that the complainant's concerns are that there is no such need. Thus, the prosecutor was under an obligation to bring the letter to the attention of the Court. By not objecting to its tender, the prosecution fairly and appropriately discharged that obligation.
In the letter the complainant relevantly stated:
If the defendant, Abdulrhman Saedam, applies for a bail, then I have no objections against this.
I have not been put under pressure to say this and this is my own decision.
He is not a harmful person to the community and does not include himself in acts such as drinking or taking drugs.
I am not afraid of him as he does not know where I live.
I am a pregnant woman who does not want her child to grow up knowing their father is in jail and just want peaceful and happy memories when he is brought into this world.
The views of the complainant are not, of course, determinative, but s 23A of the Bail Act requires the court to receive them and to consider them in the context of considering the matters mentioned in s 22(1)(b) of the Act, namely, the likelihood of the applicant, while released on bail, committing an offence, harassing or endangering the safety or welfare of anyone, or interfering with evidence, intimidating a witness or otherwise obstructing the course of justice in relation to the person or anyone else.
The Application
The bail application was made on the basis that Mr Saedam would live in Perth, report to a police station there and not contact the complainant. The grounds of the application were:
a)That low risk of reoffending, given the accused has no prior record;
b)The fact the applicant proposes to reside with his family in Western Australia whilst on bail, and that the complainant is currently living in the ACT;
c)The availability of a substantial surety;
d)The strength of the prosecution case is by means overwhelming, particularly given the complainant’s recent retraction of her allegations...; and
e)The absence of any allegations that the accused has attempted to persuade the complainant to withdraw her allegations.
Bail was opposed on the grounds that there was a risk of flight, that there was a risk of reoffending and that there was a risk that Mr Saedam would intimidate the complainant so as to affect her willingness to give evidence or affect the evidence that she may actually give. It was clear that the suggestion of intimidation included the possibility that Mr Saedam would withdraw his sponsorship of the visa application for the complainant's family to migrate to Australia.
It was further submitted that to grant bail in reliance on the statutory declaration recanting the complaint would increase the indirect pressure on the complainant, by demonstrating that her lack of cooperation with police was effective in undermining the Crown case.
The Approach to the Issues
In a somewhat similar case, R v Laipato (No 2) [2014] ACTSC 363, I said (at [1]):
Despite some laypeople thinking otherwise, bail is not intended to punish people for offences with which they have been charged. Indeed, to the lawyer such a notion is offensive, for it must be recognised that persons who have been charged but not found guilty of offences are, by law, presumed to be innocent.
It is also important to state clearly that the Bail Act, as a whole, evinces an intention that real regard must be had by those charged with the grant of bail to the safety of complainants, especially those involved in allegations of domestic violence. It is well known that those who complain of domestic violence are particularly vulnerable, hence s 9F of the Act provides a restriction on the grant of bail by authorised officers, unless they are satisfied that the applicant poses no danger to the complainant.
Similarly, s 23A of the Bail Act requires a court to consider the concerns of the complainant to be taken into account when considering, inter alia, whether the applicant, while on bail, might commit further offences, which would clearly include domestic violence against the complainant. This does not mean, however, that a person charged with a domestic violence offence must be denied bail.
The court, in granting such a person bail, may be required to have a keen appreciation of the need to ensure that the vulnerability of such complainants is carefully and properly considered when the likelihood of reoffending is being taken into account. Bail to applicants charged with such offences is not, of course, a minimisation of such charges, much less an endorsement of the behaviour said to constitute that offence.
That, of course, applies to all bail applications. It is regrettable that it is sometimes necessary to say this. Nevertheless, it is worth recalling what Giles J said in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at 184; [56]:
It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.
I note that, at the time of that decision, s 21(1)(c) of the Bail Act was, relevantly, in the terms of what is now s 22(1)(b). I note that in the same case Madgwick J pointed out (at 174 [21]):
There is no legislative warrant for preventative detention based on a fear that the worst possibility will come to pass.
This is the approach to be taken to the objection to bail on the ground that the applicant is likely to commit further offences while released on bail. While, inevitably, bail applications are rarely able to be considered with full and detailed hearings, the courts must be careful not to arrive at conclusions that are speculative or based on mere suspicion, especially where the basis of the opposition to bail is the risk of reoffending.
There must, as Gyles J said in Dunstan v The Director of Public Prosecutions at 184; [55], be, "A real likelihood of the applicant committing an offence while released on bail," and that this must be found to the court's satisfaction from the evidence presented to it. See also Application of Haidy [2004] VSC 247 at [15]-[17].
As to the intimidation of or interference with witnesses, I consider the approach to the issue In the matter of an application for bail byEiginson [2014] ACTSC 234 at [105]-[109], where I said:
It seems to me that the same general approach should be taken to this issue as to the question of whether further offences are likely to be committed.
Thus, in R v Green (Unreported, New South Wales Supreme Court, Hunt J, 5 October 1979), Hunt J said (at p 10), that where there was an objection that the accused may tamper with evidence, it was not sufficient simply for the Crown to allege such to be the case, but it was a matter that had to be proved.
I note, too, that in R v Cotter (Unreported, New South Wales Supreme Court, Carmichael J, 15 May 1980), the fact that a witness lives in a country area and reporting conditions can be placed on the accused so as to reside sufficiently far away that he cannot communicate with witnesses, the objection cannot be sustained.
This has some relevance here for, although it is Mr Eiginson who will live in the country, the same position can apply. Of course, electronic communication has advanced significantly since 1980 and harassment and intimidation can be very seriously effected electronically. I note, however, that this usually leaves a traceable record which makes it easier, as Mr Eiginson would know, to show that contact has been made in this way.
As I noted in R v Elphick [2014] ACTSC 372 at [37], the absence of an applicant from the ACT, while released on bail, can be a relevant and important factor where intimidation of witnesses is a consideration.
Further, as I pointed out in In the matter of an application for bail byLe Clair [2014] ACTSC 245 at [51], a record of violent offences may be relevant when considering this issue.
The third ground is that there is a risk of flight. Strictly stated, this means that I must consider, under s 22(1)(a) of the Bail Act, "The likelihood of the person appearing in court in relation to the offence." This is, of course, historically, the main purpose for detaining a person in custody after he or she is charged with an offence, to ensure his or her appearance to take their trial. See Re an application for bail by Merritt (No 2) [2010] ACTSC 7 at [30].
The traditional considerations to be taken into account in considering this ground were set out by Coleridge J in R v Scaife (1841) 10 LJMC 144, namely, the seriousness of the offence, the strength of the evidence and therefore the probability of a conviction, and thirdly, the severity of the likely sentence. Other matters have since been considered. The fact that an Applicant has previously breached bail conditions or failed to answer his bail in accordance with his bail undertaking is a relevant factor. See R v Laipato (No 2) at [51]-[53].
Often considered relevant are also matters that might be considered likely to militate against an applicant failing to attend his bail in accordance with his bail undertaking. These are sometimes referred to as "ties to the community". See Director of Public Prosecutions v Nittes (Unreported, Supreme Court of Victoria, Crockett J, VicSC 556, 5November 1985) at p 7.
Because the States and Territories of Australia are separate jurisdictions it is sometimes suggested that the ties must be to the jurisdiction of the court, in this case, Canberra. In my view, this is too restrictive an approach. While there are procedural complexities in bringing persons from another Australian jurisdiction into this Court, not as simple as an arrest within the ACT for an accused who fails to answer his bail, they are significantly less complex and expensive than an extradition from outside Australia. Kearney ACJ came to the same conclusion in Tamwoy v The Queen, (Unreported, Supreme Court of the Northern Territory, Kearney ACJ, 19 June 1998) at p 16. Thus, I would not consider that a wish to travel outside the ACT and reside there is necessarily evidence of flight or evidence of the likelihood that an applicant will not appear to take his or her trial. Much will depend on the particular circumstances.
Finally, I note that some of the offences are subject to s 9B of the Bail Act; that is, that there is no presumption in favour of bail. I have set out In the matter ofan application for bail by Le Clair at [31]-[44] the approach that I consider should be taken. The approach of Hunt J in R v Kissner (Unreported, New South Wales Supreme Court, Hunt J, 17 January 1992) should be followed. In summary, it is that the Crown retains an onus in such cases, but it only has to displace the presumption of innocence and only on the balance of probabilities. That is to say the Crown bears the onus of showing that the grounds of opposition are made out. See R v Rubino [2012] ACTSC 157 at [42]-[45].
Consideration
Accordingly, I apply these principles to the facts of this case. The offences with which Mr Saedam has been charged are serious, attracting maximum penalties of up to 12 years imprisonment, an essential yardstick by which to measure the seriousness of an offence: Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31]. It is difficult to assess the strength of the Crown case, especially in the absence of much of the evidence. This is particularly difficult where the case will heavily rely on the evidence of a complainant whose reliability is difficult to judge from written material. In this case, her reliability is also damaged by her apparent retraction of her complaint, though provisions such as ss 38, 60 and 66 of the Evidence Act 2011 (ACT) may be available to reduce the full impact of the apparent retraction.
I note, however, that there was little corroboration of the original complaint of the complainant, other than her distress and contemporaneous statements observed by police and medical personnel when she made her complaint. These matters are not to be dismissed.
There is no doubt that, despite having no prior convictions, the seriousness of the offences would be likely to require the imposition of a severe sentence if Mr Saedam were convicted.
Mr Saedam had a substantial cash surety available to him. That is relevant both to reducing the risk of his non-appearance to take his trial and to meeting the cost of any extradition proceedings, should he fail to return to the ACT voluntarily. I note that Mr Saedam proposes to reside with his parents in Perth. That shows ties to Australia. He also has no criminal record and, therefore, no history of failing to answer any bail undertaking.
The Crown submitted that his departure from Canberra immediately after the alleged offences was an indication of his intention to flee. I accept that this is a matter of concern. Three matters, however, are relevant. In the first place, he did not leave Australia, even though he was in Perth for nearly three weeks before his arrest. Secondly, he appears to have been arrested relatively easily. Thirdly, while it may be suspected that he knew he had committed the alleged offences, the complainant did not go immediately to the police, and Mr Saedam did not know that a complaint had been made, or that the police would be involved. Indeed, in relation to the earlier matters in Perth, the police had not been involved.
Conditions, including the surrender of travel documents, reporting to police and a prohibition on being at a place of international departure, can reduce the risk. I am not satisfied that there is a likelihood that Mr Saedam will not appear in court in relation to the offence. While no charges were laid and no convictions recorded for any of the matters leading to the complainant to reside at a refuge for a period in Perth, as noted above, I am prepared to accept, for the purposes of this application, that Mr Saedam was violent to the complainant and that this caused her to move to the refuge.
Given the circumstances alleged by the Crown as the offences with which Mr Saedam is charged, I consider that there is a reasonable likelihood that if he were to have further contact with the complainant when he is not in custody, he is likely to commit further similar offences. While the complainant, in her letter, says she feels safe, this is in the context that Mr Saedam does not know where she lives.
She still clearly has feelings for him, as her visits to him while in custody shows. These visits, however, are in a controlled environment where he cannot hurt her. While he is in Perth the likelihood of him having personal contact with the complainant seems remote, although her visits to him in the AMC do lead me not to discount that she may wish to contact him. I cannot prevent that, but I can, by conditions, limit his participation in that.
I must take into account that Mr Saedam has not been convicted of any offences. Conditions can also reduce the risk of reoffending, including that he not have contact with the complainant and that he remain in Perth until he is required for trial. Having regard to all these matters, I am not satisfied that there is a likelihood of Mr Saedam committing further offences.
The final matter is the question of intimidation or interfering with witnesses. This is a more problematic matter, for the interplay of indirect pressure on the circumstances of the complainant is complex.
In the first place, there is no evidence that Mr Saedam put any pressure on the complainant to retract her allegations. I may suspect that he put pressure on her during her visits to him in the AMC, but there is no evidence of that on which I could reasonably rely.
There are, in any event, two further matters about that. The first is that her retraction is now made, made in a form that renders her liable to prosecution if it is false, and which has already risked damage to her credibility, regardless of what else she may say or do. Secondly, if Mr Saedam is in Perth and prohibited from contacting the complainant, no further pressure can be put on her directly to take any further steps, though none was actually identified.
Submissions were made that matters relating to immigration may be used to put further pressure on the complainant. Those are relevant and important matters. What those pressures are designed to do was not identified. I can speculate about what they could be, but that is not appropriate for me to do. They need to be specified clearly so that the risks suggested to flow from such intimidation or interference are clear.
The matters to which my attention was drawn were the sponsorship of the complainant, enabling her to remain in Australia, and the current proposal that Mr Saedam sponsor her family to come to Australia. While I cannot discount that, indirectly, Mr Saedam may refuse to continue with his sponsorship of the complainant, she has, as I understand it, some protection with the immigration system as a result of the allegations of domestic violence by her.
That Mr Saedam may withdraw his sponsorship of the complainant's family seems to me unlikely to be affected by his bail status. No submission was made that he could continue to sponsor the complainant's family while he remained in custody, a position that seems, at least, counterintuitive. That sponsorship seems already to be at risk.
It was unclear what result would be brought from the further pressure that a threat or activity of such withdrawal would achieve. Again, I can speculate, but that is not appropriate. It was not submitted that Mr Saedam could influence other associates to intimidate or interfere with the complainant, but in any event, there was no evidence that this would not be any different a position were he granted bail or not.
I take into account, as I am required to do, the expression of the complainant that she does not object to Mr Saedam being granted bail. I note that she asserts that Mr Saedam does not know where she lives. I also accept that her expression that she does not want the father of her child to be in gaol may suggest a glimmer of intention to make further contact with Mr Saedam if he is released on bail, but even despite her contact with him while in custody, it is no more than a glimmer. Again, conditions such as requiring him to remain in Perth, other than for attendance at court, and prohibition on contact with the complainant would reduce this risk.
On all of the evidence, I am not satisfied that while released on bail Mr Saedam will intimidate the complainant or interfere with any evidence.
As a result, I am prepared to grant Mr Saedam bail, but on strict conditions which I consider are necessary to ensure that the relevant considerations I have outlined above are dealt with appropriately.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge. Associate: Date: 20 April 2015 |
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