Simon Robert Arthur v Michael David Harris
[2006] ACTSC 99
SIMON ROBERT ARTHUR v MICHAEL DAVID HARRIS
[2006] ACTSC 99 (13 OCTOBER 2006)
CRIMINAL LAW – PRACTICE AND PROCEDURE – committal hearing – appropriateness of voir dire – s 189 Evidence Act 1995 (Cth).
CRIMINAL LAW – possession of cannabis – fault element – actual knowledge.
CRIMINAL LAW – EVIDENCE – inferences from proved facts – failure of accused to give evidence – matter dealt with summarily – permissible inferences from failure to give evidence – s 20(2) Evidence Act 1995 (Cth).
Drugs of Dependence Regulations 1993 (ACT) (repealed), reg 6, Sch2
Drugs of Dependence Act 1989 (ACT), s 165, s 187
Evidence Act 1995 (Cth), s 20, s 135, s 138, s 189
Magistrates Court Act 1930 (ACT), s 94
Criminal Code 2002 (ACT), s 44
Crimes Act 1900 (ACT), s 375
R v Grassby (1988) 15 NSWLR 109; 38 A Crim R 67
Pereira v DPP (1988) 63 ALJR 1
R v Kaldor (2004) 150 A Crim R 271
Weissensteiner v The Queen (1993) 178 CLR 217
RPS v The Queen (2000) 199 CLR 620
Azzopardi v The Queen (2001) 205 CLR 50
Peacock v The King (1911) 13 CLR 619
Barca v The Queen (1975) 133 CLR 82
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 42 of 2005
Judge: Gray J
Supreme Court of the ACT
Date: 13 October 2006
IN THE SUPREME COURT OF THE )
) No. SCA 42 of 2005
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SIMON ROBERT ARTHUR
Appellant
AND:MICHAEL DAVID HARRIS
Respondent
ORDER
Judge: Gray J
Date: 13 October 2006
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The conviction that on 20 May 2004 the appellant attempted to possess a trafficable quantity of cannabis be quashed and a verdict of not guilty to that charge be entered.
The gravamen of this appeal against conviction is whether the magistrate could conclude beyond reasonable doubt that Simon Robert Arthur (the appellant) attempted to possess a traffickable quantity of cannabis for sale or supply (the charge), by reason of the appellant having collected and, for a period of time, retained possession of a parcel that was addressed to him and which had previously contained a significant quantity of cannabis.
The appellant contends that the evidence before the magistrate could not establish beyond reasonable doubt that the appellant knew that there was cannabis in the parcel. Accordingly, the magistrate should have acquitted him of the charge.
The circumstances of the alleged offence
Shortly after 1.50 am on 20 May 2004, Australian Federal Police intercepted an Express Post parcel addressed to ‘Simon Arthur, PO Box 2786, Tuggeranong, ACT, 2901’ at the Fyshwick Mail Centre. The parcel comprised of a large cardboard parcel which contained a plastic storage box of a type used to store children’s toys. That box, in turn, contained a large quantity of cannabis packed in 21 vacuum-sealed bags.
The quantity of cannabis seized was 9.272kg. That amount was prescribed as a trafficable quantity by the Drugs of Dependence Regulations 1993 (ACT) (repealed), reg 6, Sch 2, in force at the time of the seizure. The police removed the cannabis and replaced it with telephone books to replicate the weight of the drug seized for the purpose of effecting a “controlled delivery” of the parcel to its intended destination. A warrant was obtained in respect of premises at 10 Richman Place, Kambah pursuant to s 187 of the Drugs of Dependence Act 1989 (ACT). The parcel was taken to the Mail Exchange at Tuggeranong.
At approximately 10.50 am that same morning of 20 May 2004, the appellant attended the Tuggeranong Post Office and retrieved the parcel. He placed the parcel inside a motor vehicle.
Mr Hastings QC, who appeared as counsel for the appellant, submitted that the surveillance film taken of the collection of the parcel only showed that it was a person capable of being identified as the appellant. However, there was no issue before the magistrate as to the identity of the person who picked up the parcel as being the appellant. The post office box was in the name of a S. Arthur and it seems to have been common ground before the magistrate that the appellant had a key to it. The appellant was observed to have then taken the parcel to 10 Richman Street, Kambah. There was evidence that the telephone service to those premises was in the name of the appellant. When the police executed a search warrant at the premises a short time after the appellant had returned there, the appellant answered the door. There was another person present at the house at the time.
As far as the evidence is concerned, that is all that the magistrate had before him in order for him to determine whether the appellant was guilty of the charge. This is because, as a result of what the magistrate found to be the improper execution of the search warrant, the magistrate had held that all of the evidence obtained by the police as a consequence of their search of the premises was inadmissible. It followed that as a result of the exclusion of evidence obtained as a result of the search, the prosecution was not able to point to any further inferences that might have arisen from the location of the parcel in the premises.
The course of the proceedings
The case had taken a somewhat unusual course. It had commenced as a committal hearing of a number of charges including the one upon which the accused was convicted. Those other charges arose out of items found as a consequence of the search of the premises conducted under the warrant. The other charges related to certain other drugs and items found on the premises. The prosecution could no doubt rely upon an inference from the presence of those drugs and items capable of being utilised for the sale and supply of drugs, to support their case that the appellant knew or expected that the parcel he picked up contained drugs.
The committal hearing proceeded as what the parties and the magistrate described as a “voir dire” hearing. Strictly, such a hearing may not be apt in the context of a committal proceeding. It is, of course, available at the trial. Section 189 of the Evidence Act 1995 (Cth) (Evidence Act) provides the manner in which such a hearing is to be held. Section 189(1) provides:
(1) If the determination of a question whether:
(a)evidence should be admitted (whether in the exercise of a discretion or not); or
(b)evidence can be used against a person; or
(c)a witness is competent or compellable;
depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purposes of this section, a preliminary question.
However, a committal hearing is to determine whether, having regard to all the evidence that has been given at that hearing, there is evidence upon which a jury could convict (Magistrates Court Act 1930 (ACT) (Magistrates Court Act), s 94). I accept that in discharging that function, the Magistrates Court may determine that particular evidence could be held to not be admissible at trial. However, that is not an issue that would generally require a hearing as to a preliminary question under s 189 of the Evidence Act bearing in mind that such questions are for a trial judge should the defendant be committed. In that regard, the comments of the Court of Criminal Appeal of New South Wales in R v Grassby (1988) 15 NSWLR 109 at 119 are apt:
Subject to one matter of emphasis, this Court adopts as appropriate an unreported passage in the judgment of O'Brien CJ of Criminal Division in Carlin v Thawat Chidkhunthod (Chid's case) (1985) 4 NSWLR 182 (at 76 of the typescript), where his Honour was dealing with a submission that the magistrate conducting the committal proceedings should, in the exercise of his discretion, have rejected a record of interview as unfair:
... the submission introduced matters which are confined to the discretion of the trial judge. It was entirely proper for the magistrate to admit this evidence and indeed in my opinion a magistrate should not, except in circumstances which clearly warrant it, reject such evidence which normally requires a hearing at the trial upon the voir dire and a decision by the judge then presiding as to its admissibility. Even more obvious in my opinion is the suggested exercise of a discretion to reject admissible evidence because unfair (see, eg, The King v Lee (1950) 82 CLR 133) or because of some suggested irregularity (see, eg, Alexander v The Queen (1981) 145 CLR 395; Cleland v The Queen (1982) 151 CLR 1), since the exercise of such a discretion is for practical purposes a function of the judge of trial and depends very much on the conduct of the trial.
Although the full context in which that passage is to be found would appear, despite the reference to discretion, to make his Honour's comments applicable to every issue normally determined by way of a voir dire (including the voluntary nature of confessional statements), this Court accepts that a magistrate may properly, “in circumstances which clearly warrant it” (with the emphasis firmly placed upon that phrase), determine the admissibility of evidence upon a voir dire where the prosecution bears the onus of proof — and notwithstanding that his decision will not bind the trial judge upon that issue. But this Court also asserts that a magistrate conducting committal proceedings should not, except in circumstances which clearly warrant it, reject evidence upon discretionary grounds which the accused has an onus of persuading a trial judge to find in his favour. Despite what often seems now to demonstrate every indication to the contrary, committal proceedings do not constitute (and they should not be allowed to develop into) a mini-trial in advance of the trial upon indictment.
If the charges which the appellant faced were to proceed to trial, questions of admissibility concerning the search would presumably be the subject of an application for a preliminary examination under s 189. At the outset of the committal hearing, no consideration appears to have been given as to whether this was a probable outcome and whether the matters referred to in Grassby (supra) may have imposed limitations on the magistrate in his dealing with the objections to the evidence obtained as a consequence of the execution of the search warrant. As it turned out, that point was not reached. However, the effect was to not provide any easy point of demarcation between the evidence that might properly be said to be relevant to the question of whether the appellant should be committed for trial and evidence relevant only to the admissibility of the evidence upon which that question should be determined.
After the evidence called by the prosecution had been given in this case, counsel for the appellant (who was not counsel who appeared on this appeal) indicated that his client would consent to the magistrate determining the matter. This was an option available to the appellant under s 375(6) of the Crimes Act 1900 (ACT) provided that the court was of the opinion that the matter could properly be disposed of summarily. Counsel also indicated that he did not “think” that the appellant wanted to go into evidence on the “voir dire”.
The matter was then argued as to the admissibility of the evidence obtained under the search warrant in the course of which there was, on the part of counsel for the appellant, an expression of consent to the magistrate exercising jurisdiction. Although there is some confusion about this, the prosecution apparently closed its case presumably relying upon the evidence that it had tendered on the “voir dire”. However, there was no formal tender of the evidence that had been given ostensibly on the “voir dire” for the purposes of the court proceeding to hear and determine the charge summarily. Nor was there any formal identification of the evidence relevant only to the charges to be the subject of summary disposal. On the appellant’s behalf, counsel announced to the magistrate that “The defendant calls no evidence … And makes no submissions”. That announcement was immediately withdrawn and submissions then were made by both counsel as to the admissibility of the evidence obtained as a consequence of the search warrant. In the event, no evidence was given by the appellant.
It is important to appreciate that at that stage the accused was pleading not guilty as well to the five other charges arising in respect of the items seized under the search warrant. However, as it turned out, the magistrate determined the admissibility issues that had been raised together with the verdict to be returned on all the charges in the one exercise.
Had the matter proceeded as a summary trial consequent upon the prosecution applying to formally tender evidence, there should have then been a ruling on the admissibility of the evidence that had been challenged in the course of the committal proceedings. That determination should have taken place before the appellant was called upon to elect whether or not he was to give evidence. It seems to me the appellant was seriously disadvantaged in making the forensic decision that he did to not give evidence in respect of the summary trial that he had elected to undergo before a ruling had been given on the admissibility of the evidence that was being tendered against him.
The requirement to prove knowledge
The offence under consideration was prior to and at the time of the hearing an offence under s 165 of the Drugs of Dependence Act 1989 (ACT) and s 44(1) of the Criminal Code 2002 (ACT) (Criminal Code). The section under the former Act relevantly provided:
Sale or supply—cannabis
(1)A person shall not—
…
(c)possess cannabis for the purpose of sale or supply to any person.
Maximum penalty:
…
(b)if the quantity of cannabis to which the offence relates is a trafficable quantity but not a commercial quantity—2 000 penalty units, imprisonment for 10 years or both; …
Section 44(1) of the Criminal Code constitutes an offence of attempting to commit an offence and s 44(5) of that Act provides that intention and knowledge are fault elements for each physical element of the offence attempted. The physical element of the offence under s 165(1)(c) of the Drugs of Dependence Act 1989 (ACT) was possession.
Mr Refshauge SC, the Director of Public Prosecutions, accepted that it was an essential element of the offence charged in this case that the prosecution had to establish beyond reasonable doubt that the appellant intended to possess the cannabis that had originally been in the parcel.
Mr Hastings wished to stress that where knowledge was a necessary element of the guilty mind required for the offence here charged, the approach should be that adopted by the High Court in Pereira v DPP (1988) 63 ALJR 1. In that case, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, said at 3:
Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge: Giorgianni (1985) 156 CLR 473 at 504-507; 16 A Crim R 163 at 186-189; He Kaw Teh at 570; 237. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available.
I did not understand Mr Refshauge to contend to the contrary.
The magistrate’s conclusions
The magistrate ultimately concluded that the evidence obtained by the police consequential upon the exercise of the search warrant should not be admitted. He did so in the exercise of the discretion given to him under s 138 of the Evidence Act. Upon so ruling, he held that there was no evidence upon which the prosecution could rely to establish the five other charges relating to the items found on the premises in the course of the search. He then considered the effect of the evidence before him in respect to the remaining charge of attempting to possess the cannabis which had been in the parcel he had collected from the Tuggeranong Post Office on the day of the search.
In respect of inferences to be drawn from the admissible facts that he had before him, the magistrate said:
I think I’m entitled to by my common-sense and general knowledge of the world that 9 kilos of cannabis is a very valuable commodity in our society albeit an illegal commodity. The defendant attended the Post Office and took possession of that box and returned to 10 Richman Place with it.
In my view any ordinary member of the community would say that the most probable inference from that set of circumstances is the defendant had arranged the delivery of the box to him, containing cannabis and when he took possession of it expected that cannabis would be in it.
Earlier in his reasons he had referred to:
… what might be regarded as hypothesis [sic] consistent with innocence and they include that someone else might have used the post box without telling the defendant or had asked the defendant if they could use the post box in order to have something sent to them.
The two earlier hypotheses put forward by the magistrate could be justified by having regard to the fact that a person other than the appellant was at the premises to which the parcel had been taken. Even if such a fact was not part of the circumstances, I do not see that the potential of the facts identified by the magistrate to give rise to the possibility of the two hypotheses referred to by the magistrate are affected.
There is a danger, as Adams J points out in R v Kaldor (2004) 150 A Crim R 271, that to not have regard to available hypotheses may impermissibly reverse the onus of proof. Whilst he was in dissent in that case, Adams J said (at [60]):
It seems to me, with great respect, that the argument articulated by Howie J (with which Dunford J agrees) in substance reverses the onus of proof. His Honour states that it is inappropriate “to deprive a piece of evidence of its potential value in proving the Crown’s case simply because its probative force may have been affected by some other fact that was not in evidence”. This reasoning, in substance and effect, is that a suspicious fact, or collection of facts, that potentially establishes guilt, actually does so unless some other fact not in evidence, though reasonably possible (or, in other words, not excluded), is established. The only possible source of the justifying fact is the accused and to reason in this way, in my respectful view is implicitly either to reverse the onus of proof or draw an impermissible inference from the accused’s silence. With unfeigned respect for Dunford and Howie JJ, I think that this is a fundamental error of principle for which it is unnecessary to cite more than Azzopardi v The Queen (2001) 205 CLR 50; 119 A Crim R 8 and Peacock v The King (1911) 13 CLR 619 at 634 per Griffiths CJ: “[The] circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.”
I accept the force of the observation that Adams J makes in a situation such to be drawn as the present where more than one inference is available from the facts.
In the present case, the magistrate considered that it was appropriate to give himself, as the trier of fact, a direction in terms of the direction approved by Brennan and Toohey JJ in Weissensteiner v The Queen (1993) 178 CLR 217 (Weissensteiner). In his reasons the magistrate cited the following passage (at 236):
It follows that, in Queensland and in other jurisdictions where there is no statutory prohibition against judicial comment, a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable to expect that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused’s failure to give evidence into account in determining whether the inference should be drawn. The jury should be told that the onus remains on the prosecution and that the accused is under no obligation to give evidence, but that “it is legitimate to have regard to the fact that the accused has given no evidence or explanation or satisfactory explanation of the Crown case as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear”. (My emphasis)
In the ACT, the application of the Evidence Act provides a statutory prohibition against judicial comment. Section 20(2) of that Act provides:
The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
The existence of s 20(2) as part of the law in this Territory distinguishes the application of the passage from Weissensteiner relied upon by the magistrate. Indeed, the effect of s 20(2) of the Evidence Act on the permissible direction that might be given where an accused has not given evidence has been the subject of decisions of the High Court in RPS v The Queen (2000) 199 CLR 620 (RPS) and Azzopardi v The Queen (2001) 205 CLR 50 (Azzopardi). It was pointed out in RPS by the majority comprising Gaudron A-CJ, Gummow, Kirby, Hayne and Callinan JJ (at 630), that s 20(2) of the Evidence Act “requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation”.
The effect of a provision like s 20(2) of the Evidence Act on the approach taken by the court in Weissensteiner was described by the majority comprising Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi in this way (at 74 [64]):
There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused’s failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. (My emphasis)
In the present case, if the appellant were to have given evidence consistently with the appellant’s plea of not guilty, that evidence could only be contradictory of the inference that the prosecution was seeking that the magistrate draw, namely, that the appellant knew what the parcel contained. Nor can it be fairly said that it was only the appellant who could give evidence of this aspect. The appellant had earlier been charged with conspiracy with two others and part of the proof of that conspiracy, it seems, relied upon evidence concerning the parcel. Apart from what the alleged conspirators could say, if one of the alleged conspirators was not the consignor of the parcel, then that person, if known, could have also deposed to the circumstances of its consignment. In other words, in the circumstances of this case, there was no basis for concluding that the facts on this particular issue were necessarily peculiarly within the knowledge of the accused.
In Weissensteiner (at 228 per Mason CJ, Deane and Dawson JJ), it was said:
Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.
Those are apposite comments that can be applied to this case.
I have referred earlier to the way in which this matter proceeded and particularly to the fact that the appellant was facing other charges when he apparently made the election not to give evidence. As was observed in RPS (at 634 [34] per Gaudron A- CJ, Gummow, Kirby and Hayne JJ):
In a case where the prosecution leads direct evidence of the accused's guilt (as will usually be the case where sexual offences against a young person are alleged) it is, therefore, not right to say that it would be reasonable to expect the accused to give evidence denying or contradicting that direct evidence. Especially will that be so where more than one count is charged. In such a case, the course which the accused takes may very well be affected greatly by whether the denial or contradiction of each charge can be maintained with the same degree of force.
I consider that these comments to have application in this case, which although there was not direct evidence available as to the other charges that the appellant faced, there were diverse charges which relied upon different inferences from the circumstances referable to the particular charge and which, if admissible, could be relied upon as proof of those other charges.
In my view, in this case, the correct approach that the magistrate should have taken would have been to adopt the view taken by the majority of the High Court in Azzopardi (at 64 [34]):
The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial.
I add also to that approach that which was later said by the majority (at 75 [68]):
It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.
I consider that the magistrate erred in having regard, as he said that he did, to the fact that the appellant gave no evidence or provided any satisfactory explanation of the Crown case. That wrongly led him to the conclusion that the only inference open on the evidence before him was that “the defendant, when he collected the box from the Post Office, expected that there be cannabis in the box”.
The submissions of the parties
Mr Refshauge put it that the fact that there were valuable and illegal goods originally in the parcel led irresistibly to an inference that the addressee knew of the contents of the parcel. Whilst I accept that as an available inference, I do not accept it as a conclusive one. The inference may give rise to a suspicion of knowledge on the part of the appellant but it is not an inevitable imputation of such knowledge.
Some other fact or facts are required to enable such an inference to be drawn. It is said that the fact that the accused picked up the parcel as an Express parcel so soon after it was consigned, adds to the inference of knowledge. However, such a circumstance is quite equivocal without further facts as to the regularity or otherwise of the accused checking his post office box or of the frequency or otherwise that like parcels are received. Further, there is nothing that can be drawn from the other details on the face of the parcel relating to the consignor or the circumstances of the consignment which assist or strengthen an inference of knowledge of the contents on the part of the consignee.
In his written submissions, Mr Hastings noted that, even if there is an assumption that a person only consigns a valuable quantity of drugs to a person known to him, that does not logically demonstrate that the recipient must know of the consignor’s intentions. I consider that to be so. I also consider that there are other inferences available from the fact of the consignment in this case which are referred to by Mr Hastings in his submissions. They are that the consignor may have intended to intercept the parcel, or that the consignor may not have informed the appellant that the parcel was coming. Without any other facts, it may also be postulated that the appellant was being used as an unwitting conduit. Overall, the circumstances are not such as to be inconsistent with any reasonable hypothesis other than guilt of the accused (Peacock v The King (1911) 13 CLR 619 per Griffiths CJ at 634). The inference of guilt is not the only inference open to reasonable persons upon a consideration of all the facts in evidence (Barca v The Queen (1975) 133 CLR 82 at 104).
Conclusion
The prosecution have failed to prove the charge beyond reasonable doubt. I allow the appeal. The conviction should be quashed and a verdict of not guilty entered.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 13 October 2006
Counsel for the appellant: Mr P S Hastings, QC
Solicitor for the appellant: S & T Lawyers
Counsel for the respondent: Mr Refshauge SC
Solicitor for the respondent: Director of Public Prosecutions (ACT)
Date of hearing: 7 March 2006
Date of judgment: 13 October 2006
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