Smith v The State of Western Australia
[2014] WASCA 160
•29 AUGUST 2014
SMITH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 160 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:170/2013 | 3 JUNE 2014 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 29/08/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Application to adduce additional evidence refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RORY JAMES SMITH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Application for leave to appeal against conviction Whether miscarriage of justice arose from co-offender being charged with different offence Whether miscarriage of justice arose from trial counsel's advice against giving evidence |
Legislation: | Criminal Appeals Act 2004 (WA), s 40(1)(e) Criminal Code (WA), s 222, s 338B, s 401(2), s 444 Criminal Procedure Act 2004 (WA), s 108 Evidence Act 1906 (WA), s 32 Sentencing Act 1995 (WA), s 32 |
Case References: | Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 McMahon v The State of Western Australia [2010] WASCA 143 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 160 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : IND 74 of 2013
Catchwords:
Criminal law and procedure - Application for leave to appeal against conviction - Whether miscarriage of justice arose from co-offender being charged with different offence - Whether miscarriage of justice arose from trial counsel's advice against giving evidence
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 222, s 338B, s 401(2), s 444
Criminal Procedure Act 2004 (WA), s 108
Evidence Act 1906 (WA), s 32
Sentencing Act 1995 (WA), s 32
Result:
Leave to appeal refused
Application to adduce additional evidence refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr I Morison
Respondent : No appearance
Solicitors:
Appellant : Mr I Morison
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
McMahon v The State of Western Australia [2010] WASCA 143
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: This is an application for leave to appeal against conviction.
4 The appellant was charged on indictment in the District Court that on 18 April 2012 at Glen Forrest:
(1) he made a threat to unlawfully injure Dylan Gregory Moses contrary to s 338B of the Criminal Code (WA);
(2) he, while in the place of Warren Dix without his consent, unlawfully assaulted Dylan Gregory Moses contrary to s 401(2)(a) of the Criminal Code:
And that he was in company with others
And that immediately before the commission of the offence he knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation;
(3) he wilfully and unlawfully damaged a door contrary to s 444(1) of the Criminal Code.
5 The appellant pleaded not guilty to each charge and was tried before Curthoys DCJ and a jury.
6 After the State closed its case, the learned trial judge found that the appellant had no case to answer with respect to count 1 and acquitted him pursuant to s 108 of the Criminal Procedure Act 2004 (WA) (ts 337). However, on 17 May 2013, the appellant was convicted as charged on counts 2 and 3.
7 On 9 August 2013, the appellant was sentenced to a total effective sentence of 4 years' immediate imprisonment with eligibility for parole. He has appealed against this sentence. This appeal has not yet been heard.
8 The grounds of appeal against conviction allege two miscarriages of justice: first, because the appellant was charged with 'a different offence' to a co-accused, BM; second, because of the appellant's trial counsel's advice (which he accepted) not to give evidence. For the reasons which follow, neither ground of appeal has any reasonable prospect of success. Accordingly, leave to appeal in respect of each ground must be refused and the appeal must be taken to have been dismissed: s 27(1), s 27(2) and s 27(3) of the Criminal Appeals Act 2004 (WA).
The trial
9 The State's case was as follows.
10 On the evening of Wednesday 18 April 2012, a birthday party was being held for Ms Elizabeth White at the home of her father-in-law, Mr Warren Dix, in Glen Forrest.
11 That evening, the appellant was in the company of BM and BM's younger brother, DM, who was, at the time, a juvenile (the appellant's group). They were walking in the vicinity of Mr Dix's home.
12 One of the guests left the party by car. He drove past the appellant's group and said something to them to which they took offence. A short time later, the appellant's group came upon Mr Dix's house. There they saw the vehicle they had seen earlier. The group approached some of the party guests who were at the front of the property. One of the appellant's group was seen to have what looked like a machete in the back of his shorts. The appellant's group demanded to know the identity of the driver of the vehicle.
13 At this point, the mood was tense, however, one of the party guests recognised the appellant and the tension subsided, albeit temporarily. The guests then moved to the rear of the premises, followed by the appellant's group. After a while, two of the guests at the party, Thomas Rowe and Louis Dix, began a 'rap battle'. For the uninitiated, this is a competition amongst hip hop vocalists which is meant to be fun (ts 143). The appellant interposed himself into the rap battle, referring to himself by his first given name, 'Rory', as he rapped. The appellant was behaving in an antagonistic manner, including putting one of the guests in a headlock. At about this time, one of the party guests contacted the police about the unwanted presence of the appellant's group at the party. As a result, the group became irate and aggressive. BM threatened to hit people with pool balls. BM then struck one of the party guests, Mr Dylan Moses, with a pool ball. Mr Moses was then punched in the face by DM. A fight between BM and DM and a number of party guests ensued, as a result of which BM was temporarily rendered unconscious. The appellant's group left the premises. The appellant was heard to yell, 'You're dead. You're all dead', as he left. The appellant's group returned a short time later, ostensibly to collect a jacket and a shoe that had been left behind. When they returned, DM was holding a pointed metal garden stake. One of the party guests picked up the shoe that had been left behind and handed it to DM.
14 DM continued to behave in an aggressive manner. The party guests retreated inside, closing a sliding glass door to prevent the appellant's group from getting inside the house. The appellant and BM each grabbed a pool cue and approached the sliding glass door. Despite being told to leave, DM opened the glass sliding door and the appellant's group entered the house. At about this point, some of the guests hid in Ms White's bedroom. Mr Moses remained in the kitchen. DM demanded that Mr Moses get on his knees. Out of fear, Mr Moses complied with this demand and put his hands over his head. DM threatened Mr Moses with a broken pool cue. The appellant then swung the pool cue he was holding at Mr Moses, intending to strike him with it. In the downward arc of the swing, the pool cue caught the edge of a stovetop, causing it to break in two. Then, as Mr Moses put it in his evidence-in-chief, 'The broken bit fell down on me and the follow through hit me' (ts 48).
15 After this, BM waved a broken pool cue at Mr Moses, saying words to the effect of 'See this? It's going in, in your mouth out the back of your skull' (ts 48). DM then robbed Mr Moses of his phone and wallet at knifepoint.
16 The appellant's group went to Ms White's bedroom. She testified that the appellant kicked the bedroom door and damaged it (ts 92). Some of the party guests who were hiding in the room left the house through a window.
17 The appellant's group then left the premises and the police arrived shortly after.
18 On 19 April 2012, the police attended at the appellant's home and asked him to identify the clothing he had worn the previous evening. He identified a black T-shirt with a green Adidas logo, white long shorts and a gold chain. One of the party guests provided the police with a mobile telephone photograph that showed the appellant at the party wearing these clothes. Mr Moses testified to the effect that the person he identified as the appellant was wearing clothing similar to that seized by the police.
19 No video record of interview with the appellant was adduced at the trial.
20 The appellant's trial counsel made admissions pursuant to s 32 of the Evidence Act 1906 (WA) that, inter alia, the appellant was present at the house in Glen Forrest on 18 April 2012 and that he entered the dwelling.
21 The appellant elected not to give evidence or to adduce evidence in his defence. The defence case as to count 2 was that as a result of being struck by BM and DM, Mr Moses wrongly identified the appellant as his assailant. As to count 3, it was accepted that the door was damaged, but, it was said, not by the appellant. The decisive issue with respect to count 2 was whether the State had proved that it was the appellant who had struck Mr Moses with the pool cue and, with respect to count 3, whether the State had proved that the appellant had damaged the bedroom door.
The proceedings brought against the appellant and his companions
22 Charges were laid against each member of the appellant's group. I have already set out the charges laid against the appellant.
23 DM was charged in the Children's Court with a number of serious offences, including aggravated armed robbery. As the ground of appeal does not concern the charges laid against DM, it is unnecessary to particularise them.
24 BM was charged on indictment in the District Court with an offence of aggravated burglary contrary to s 401(2)(a) of the Criminal Code, that is with the same offence as the appellant. The wording of the charge brought against BM was somewhat different to the charge brought against the appellant in that it was alleged that the place in which the offence had occurred was the place of Ms White and that the offence that had been committed by BM was criminal damage.
25 BM was also charged with offences in the Magistrates Court of two counts of assault, including an assault on Mr Moses. These were dealt with in the District Court pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). The assault relating to Mr Moses concerned that part of the incident where BM struck Mr Moses with a pool ball prior to the aggravated burglary.
26 On 20 December 2012, BM pleaded guilty to all charges. Eaton DCJ sentenced him to a total effective sentence of 18 months' imprisonment with eligibility for parole. In respect of the aggravated burglary, BM was sentenced to 15 months' imprisonment.
Ground 1
27 Ground 1 is in these terms:
A miscarriage of justice occurred in that the prosecution brought a different charge against the Appellant from his co-offender for the same acts, depriving the Appellant of the opportunity to rely at his sentencing upon the parity principle.
Particulars
Both the Appellant and [BM] ('the Co-offender'), whilst together in the place of another without consent, committed assault and caused damage, with circumstances of aggravation. Whilst both were charged under s 401(2) of the Criminal Code, the charge against the Co-offender nominated criminal damage as the subsidiary offence and the charge against the Appellant nominated assault as the subsidiary offence. As a result the learned sentencing Judge concluded that the issue of parity between the Appellant and the Co-offender did not arise. The Co-offender received a prison term of 15 months, the Appellant 4 years.
28 The ground is misconceived for two reasons.
29 First, as the appellant's counsel acknowledged in oral submissions (appeal ts 3), the ground is premised on the proposition that the parity principle only applies to identically worded offences. This proposition is incorrect. The application of the parity principle is not restricted to persons who are charged with offences which are identical in form. The scope of the parity principle is wider than that. In the recent High Court case of Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:
In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606and in Postiglione v The Queen(1997) 189 CLR 295 at 323, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen (2010) 77 NSWLR 540 at 588 - 589 [201] - [203], there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged [30]. (emphasis added)
30 The question of the application of the parity principle in the present case will be determined in the sentence appeal.
31 The second reason why ground 1 is misconceived is because of the separate nature of the prosecutorial and judicial functions. Save for rare and exceptional circumstances (such as to prevent an abuse of process, an argument not put at trial), a court will not review or interfere with the prosecutorial charging discretion: see Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 514; Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265, 280; and Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 [34]. As was pointed out in the extract from Green which I have just quoted, the parity principle is no basis upon which an appellate court can review the prosecutorial charging discretion.
32 Ground 1 has no reasonable prospect of success. Leave to appeal should be refused.
Ground 2
33 Proposed ground 2 is in these terms:
A miscarriage of justice occurred in that, by reason of the conduct of the Appellant's counsel in advising the Appellant not to give evidence alternatively in not properly advising the Appellant about his right to give evidence, the Appellant was unable to make a free election whether or not to give evidence; and the failure of the appellant to give evidence increased the strength of the prosecution case and made the prospect of acquittal remote.
34 In support of this ground, the appellant seeks the leave of this court to adduce additional evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) in the form of an affidavit sworn by him dated 17 April 2014 and an affidavit by his partner, Debra Hughes, sworn 24 December 2013.
35 The affidavits are brief and may be reproduced in full. The appellant's affidavit is as follows:
I Rory James Smith of [address omitted] make oath and say as follows:
1. I am the appellant. One morning during the trial, toward the end of the trial, before Court commenced for the day, I had a discussion with the female lawyer Ms O'Brien in her office. The male lawyer Mr Meshgin was not present. Ms O'Brien said that it was my right to give evidence. I said 'What do you think, I can't decide.' She said 'It might go against you if you give evidence.' I hadn't discussed this topic with the other lawyer Mr Meshgin before that conference, as far as I can recall.
2. I thought I would just leave it to the lawyers I believe I signed a document, I was very nervous. I don't speak well.
3. This is what happened that night:
(a) I was walking along a street with [DM] and [BM].
(b) A car came past and occupants were yelling things at us. The car stopped just in front of a house near where we were walking. We asked the occupants of the car 'What was that about'.
(c) Out front of the house was a man named Lewis. I knew him because I caught the bus with him. Liz White was outside also.
(d) We were invited in, I was feeling really good. I knew two of the people at the party.
(e) There was a 'battle rap'. A battle rap is a rap dance with another person where you pretend to be aggressive. I was pretending to be aggressive as was the man I was doing the battle rap with.
(f) Some men kicked [BM] unconscious while he was on the ground. We carried [BM] away. He came to. There was a man holding his shoes. [DM] and [BM] went crazy.
(g) They entered the house. I entered the house after them. I tried to get them out.
(h) I didn't kick the door, I didn't have a machete. I didn't assault Dylan Moses or anyone.
(i) I feel I should have given evidence and let the jury hear my side of the story.
I Debra Hughes of [address omitted] in the State of Western Australia, make oath and say as follows:
1. I am the partner of the Appellant, Rory James Smith. We have been partners since June 2012.
2. Rory was represented by two lawyers from Legal Aid, a male lawyer called Bian [sic] and a female lawyer called Victoria.
3. I attended several meetings between Rory and his lawyers. I believe those were all of the meetings he had with them.
4. The first meeting I can recall was at the Magistrates Court. At the beginning of the conversation Victoria was not there, it was with Bian alone. Bian said to Rory words to the effect:
Whether or not you give evidence is your choice. You can tell your side of the story.
5. Rory said to Bian words to the effect:
I want the jury to hear my side of the story.
6. I was present in Court throughout Rory's trial and when he spoke to his lawyers out of Court and I could hear the conversations between Rory and his lawyers when he was in the dock.
7. A few days into the trial I was present during a discussion between Rory and Victoria. It took place before Court commenced that day. Rory and I met Victoria in the foyer of the District Court building between the entrance to the courthouse and the security check.
8. Bian was not there, he was getting medication, he was sick throughout the trial.
9. Victoria went into the café situated on the side of the foyer and ordered a coffee. Rory and I sat with her at a table while she drank her coffee.
10. Rory said to Victoria words to the effect:
I am unsure about whether I should give evidence.
11. Victoria said words to the effect:
I would advise against it, it's not in your best interests. Personally I don't want you to do that because you'll be subject to cross examination and they will be going back over what happened.
12. Rory responded to the effect:
If it's what you think best.
13. Other things I remember about that conversation are:
Victoria said the prosecutor was rude to her and it was because of her hearing problem. She said something to the effect 'I will be addressing my deafness'.
Victoria said that Bian would be doing the closing statement.
15. Rory was sick with anxiety. He was stressed by the whole process. During his trial he was not absorbing things. I knew that was so from the look on his face. He looked like he was going to be sick. His face was very pale. I know Rory.
16. At all times before and during the trial, Rory intended to give evidence. He intended to be put on the witness stand.
17. One witness was not cross examined, there was meant to be cross examination of a witness after lunch but instead the prosecution called a new witness.
18. After the trial I spoke about the incident with [BM]. That was before [BM] went to prison. During that conversation [BM] told me:
(a) his brother [DM] instigated the violence;
(b) [BM] was willing to give evidence for Rory but had not been called to give evidence;
(c) Rory was helping Elizabeth (one of the occupants of the house) to get everybody out of the house.
19. I have never seen so much stress in Rory as he had during the trial. It seemed as though the whole thing was too much for him. He hardly slept, he was a mess. I would talk to him and he would not be listening. I would have to say 'Rory, Rory are you listening to me'. I have never seen him cry so much. He does not usually cry. He was not eating. This was beyond stress.
37 The legal principles relevant to the ground are uncontroversial. They were accurately stated by McLure P, with whom Buss JA and I agreed, in McMahon v The State of Western Australia [2010] WASCA 143:
The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J) [24] - [27].
38 There was no material irregularity in the present case and it has not been demonstrated that anything done by counsel affected the outcome.
39 As both affidavits make clear, and contrary to what is asserted in the ground of appeal, the appellant was correctly informed by his lawyers of his right to give evidence. It was further made clear to him that the choice whether or not to testify was entirely his to make. It may be accepted that the appellant was, like many accused, anxious, nervous and apprehensive about the prospect of giving evidence and he found the decision a difficult one to make. In the end, the appellant was unsure about what to do and properly sought the advice of his counsel. Counsel advised him not to give evidence. The appellant unequivocally accepted this advice.
40 Counsel's forensic decision was not objectively unreasonable. As I have just said, the appellant was apprehensive and nervous and counsel may well have judged that the appellant would have acquitted himself poorly in the witness box, particularly under cross-examination. Forensic decisions made by counsel are often made in the heat of the moment and are frequently the product of experience, instinct, impression and an assessment of risk. Counsel is in a better position than a court of appeal to judge how well or not an accused will perform in giving evidence. No doubt, with the wisdom of hindsight, the appellant regrets the decision that he made. However, that does not mean that what occurred was wrong, unwise or imprudent or that there has been a material irregularity. The assertion in the ground of appeal that the failure to give evidence increased the strength of the prosecution case is incorrect as a matter of law. The claim that it made the prospect of acquittal remote is speculative.
41 Further, the appellant's affidavit does not cast doubt on the correctness of the verdict. The affidavit is very general in its terms and is hardly a comprehensive account of events. The bare statement, 'I didn't assault Dylan Moses or anyone' is not persuasive. At the very least, the evidence was that the appellant attempted to strike Mr Moses with the pool cue. The attempt to strike Mr Moses was, in all of the circumstances, an assault, having regard to the definition of assault in s 222 of the Criminal Code which reads:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault. (emphasis added)
42 The appellant does not deal with the allegation against him which was that he took up the pool cue and swung it at Mr Moses in order to strike him. The appellant does not explain in the affidavit what he understands by the meaning of the word 'assault'. It may be that he mistakenly believes that he did not assault Mr Moses, having regard to the fact that the pool cue that he swung broke and that it was a piece of the broken pool cue which struck Mr Moses.
43 In the course of oral argument, the appellant's counsel submitted that there was a presumption that an accused ought to give evidence (appeal ts 6), particularly when, as in this case, the accused had not given an exculpatory video record of interview. Counsel submitted that this proposition was 'common sense'. This submission must be rejected. Although one might think that it hardly needs to be said, there is no presumption, either in law or in practice, that an accused person ought to give evidence.
44 Ground 2 has no reasonable prospect of success. Leave to appeal should be refused. I would refuse the application to adduce additional evidence.
Conclusion and orders
45 As neither proposed ground of appeal has any prospect of succeeding, leave to appeal must be refused and the appeal is to be taken to be dismissed.
46 The orders that I would make are as follows:
1. Leave to appeal is refused on proposed grounds 1 and 2.
2. The application to adduce additional evidence is refused.
3. The appeal is taken to have been dismissed.
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