Tasmania v E
[2007] TASSC 38
•21 November 2006
[2007] TASSC 38
CITATION: Tasmania v E [2007] TASSC 38
PARTIES: TASMANIA, STATE OF
v
E
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 389/2005
DELIVERED ON: 21 November 2006
DELIVERED AT: Launceston
HEARING DATE: 5, 6 and 7 September 2006
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law – Evidence – Similar facts – Relevance – Sexual Offences – Similar acts in relation to different persons – Whether related events – Whether significant probative value.
Evidence Act 2001, (Tas), ss98(1)(b) and (2) and 101(2).
L v Tasmania [2006] TASSC 59; R v Ellis (2003) 58 NSWLR 700, applied.
Aust Dig Criminal Law [522]
REPRESENTATION:
Counsel:
State: M A Stoddart
Accused: S J Brown
Solicitors:
State: Director of Public Prosecutions
Accused: Simon Brown
Judgment Number: [2007] TASSC 38
Number of paragraphs: 29
Serial No 38/2007
File No 389/2005
STATE OF TASMANIA v E
REASONS FOR RULING CRAWFORD J
21 November 2006
The indictment filed on 4 September 2006 charges the accused with six counts of sexual assaults against young persons. He pleaded not guilty to all. The respective counts are:
1Between about 1 January 1988 and about 31 December 1991 maintaining a sexual relationship with a young person named N who was born on 11 June 1981.
2Between about 1 January 1990 and about 31 December 1998 maintaining a sexual relationship with a young person named E who was born on 20 July 1985.
3Between about 1 January 2001 and about 31 December 2003 maintaining a sexual relationship with a young person named A who was born on 15 October 1994.
4Between about 1 January 2003 and about 1 November 2004 maintaining a sexual relationship with a young person named H who was born on 25 March 1994.
5Between about 1 January and about 31 December 1991 indecently assaulting a 12-year-old boy D.
6Between about 1 January and about 31 December 2003 indecently assaulting an 8 or 9‑year‑old girl R.
Pursuant to the Evidence Act 2001, s98, the State served on the accused a notice of intention to adduce coincidence evidence at the trial. It seeks to have the evidence of the accused's sexual offending with each complainant received as evidence on the trial of the accused on the charges concerning all of the complainants. It is the State's case that the evidence of each complainant is admissible as relevant to and supporting the credibility of the other complainants in that it is, on the basis of common sense and experience, objectively improbable that similar allegations would be independently made by those complainants unless they were true.
The accused opposed the course proposed by the State. He sought to have the respective counts severed from each other, so that there would be separate trials concerning each of the complainants and so that their evidence could not be used in that way. As will be seen, after evidence on the voir dire, he modified his position to some extent. That evidence was given by the complainants and 10 other witnesses. Also in evidence are video recorded interviews with the complainants A (count 3), H (count 4) and G (count 6) along with transcripts of those interviews. Although they were not formally admitted into evidence, counsel agreed that I should have regard as well to the statements or statutory declarations in the Crown papers of all witnesses who gave evidence on the voir dire.
For the coincidence rule of s98 to operate by permitting evidence of two or more events to be admitted to prove that, because of the improbability of the events occurring coincidentally, an accused person did a particular act, the Court must be satisfied that those events are related events in the sense that they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar. See s98(2). Evidence of two or more related events is not to be admitted for that purpose if the Court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced, would not have significant probative value. See s98(1)(b). Further, coincidence evidence about an accused, that is adduced by the prosecution, cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect it may have on the accused. See s101(2).
Related events
The first question that arises is whether the evidence concerning the accused's sexual offending with the complainants is of related events in the sense that they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar.
In the course of his submissions, counsel for the accused conceded that the evidence of what the accused did with N (count 1) and the evidence of what he did with E (count 2) was evidence of related events in the sense required by s98(2), and he conceded that there should be a joint trial of those two counts. However, he submitted that the evidence of what the accused did with the other complainants was not of related events.
Attached to these reasons is a table I have prepared to compare the evidence about what the accused is alleged to have done with each of the complainants. I have concluded that the fifth count concerning D and the sixth count concerning G should be severed from the other counts for trial purposes. Each only described one tickling incident (about 13 years apart from each other). D's allegation consisted of one brief incident in a bedroom of his mother's home and there were a number of factors common to other complainants that are missing with him. For example, there is no is suggestion of "grooming" by the accused in D's case, as there is in the case of the others, and no sexual assault occurred either in the accused's car or at a destination after a trip in his car. G's allegation concerns only one incident, in the course of being tickled at the accused's workshop. She has made no complaint of being sexually dealt with in the accused's car as did the other four complainants, and the level of the sexual assaults was much lower with her than with them. Further, when determining the probative value of her allegation as to what happened to her in the workshop with the State's case concerning the other four complainants, I do not consider that probative value to be significant and I think that there is a real risk that, whatever its probative value, its prejudicial effect will be out of proportion to it.
I find that the evidence of what the accused did with the other four complainants was evidence of related events in the required sense for a number of reasons:
1With the exception of H, the complainants were all cousins of the accused. H was a close friend of a cousin, A, and the alleged offending with him occurred when A was present. The relationship of cousins is a common factor.
2The complainants were at a pre-pubescent stage of their lives. The oldest at the time of the alleged offending was E, who was aged about 13 at the end of it.
3The accused regularly and often visited their homes or, in the case of H, A's home where H was visiting.
4Each of the four described being tickled by or wrestling with the accused.
5All of them described being taken on many trips by the accused in his car, three of them to McDonald's, all of them to Family Fun, all of them to Time Zone, three of them to the Launceston Show and three of them to the accused's workshop at St Leonards. It was an unusual and distinctive feature of their evidence. A great many of the sexual assaults occurred in connection with such trips.
6There is a suggestion that the accused was grooming them. All of them described being given things or winning things when out with him.
7Although it does not appear from the table, the times of the day when he offended were usually referred to as late in the day, after school, after tea or when it was dark.
8All of them described being sexually assaulted, or having to touch the accused's penis, in his car.
9All of them described the accused touching them on the vagina or penis or of trying to do so.
10None of them witnessed the accused ejaculate (although N thought it likely to have happened in the car).
11None of them described the accused using force to have his way, except a limited amount of force when wrestling or tickling.
12There is an indication in the evidence that apart from the assaults on A and H or A and G when they were both present with the accused, he moved on to assaulting a complainant after ceasing to assault another complainant, for example from N to E to A.
It was submitted by counsel for the accused that there were significant differences between on the one hand, the evidence of N and E and, on the other hand, the evidence of A and H. One difference was that the sexual offending of the accused with N and E was kept totally private between him and each girl, whereas much of his sexual offending with A was in the presence of H or G and his sexual offending with H was virtually always in the presence of A, as is the case with his sexual offending on one occasion with G. Another difference pointed out was the degree and extent of his sexual activity with N and E compared to his activity with the others. With N and E there was a progression, extending over a period of years, from touching to oral sex whereas with the others, the activity was confined to touching throughout a much shorter period of his offending. Those differences do not persuade me that the evidence of the four complainants I have identified was not of related events in the required sense.
Significant probative value
The Evidence Act, s98(1)(b), prohibits evidence of related events, either by itself or having regard to other evidence adduced or to be adduced by the State, if the evidence would not have significant probative value. I do not think that the evidence with regard to each of the four complainants I am considering would not have significant probative value on the trial of the charges concerning the other complainants.
Whether the probative value of the evidence outweighs any prejudicial effect
By s101(2), coincidence evidence about an accused, that is adduced by the State, cannot be used against the accused unless the probative value substantially outweighs any prejudicial effect it may have on the accused. Counsel for the accused conceded the point so far as it concerns the first two counts (N and E) and accepted that they may be tried together. He made no similar concessions concerning any of the other counts. However, he made no submission that the probative value of the evidence of H did not substantially outweigh any prejudicial effect it may have on the accused. His submissions in that regard were confined to the evidence of A and G.
Counsel agreed that the law to be applied by the Court is to be understood and applied in accordance with L v Tasmania [2006] TASSC 59 and R v Ellis (2003) 58 NSWLR 700.
The possible prejudicial effect of the evidence of one or more complainants when the jury is considering its verdict considering another complainant, is that the jury may misuse that evidence and reason that merely because a number of people have made allegations that the accused has sexually offended he is more likely to be guilty and that because his character or conduct is revealed by the evidence of one or more of them, he is likely to be guilty of offending because of a propensity to do so. The question of the probative value, across all counts in the indictment, of the evidence of the respective complainants in a case such as this concerns the extent to which that evidence could rationally affect the assessment whether each count has been proved, by a course of reasoning that, on the basis of commonsense and experience, it is improbable that similar allegations would be made by all of the complainants unless they were true.
The requirement of s101(2) calls for a balancing exercise on the facts of the particular case. The Court must make a judgment concerning whether the probative value of the evidence, which must be significant by reason of s98(1)(b), substantially outweighs the prejudicial effect it may have on the accused. The probative value of a complainant's evidence will be substantially reduced if it is likely to have been the product of concoction by the complainant, perhaps as a result of some form of collaboration or collusion with another complainant or other persons, or of contamination of the mind or memory of the complainant by reason of communications the complainant had with others. Counsel for the accused only submitted that there was a likelihood of that last kind concerning A and G. I will only consider A in detail.
The evidence established that sexual assaults on A by the accused occurred between about 2001 and about 2003 when he was aged about 7 to 9 years. His evidence was that the accused called at his home about twice a week and regularly took him out in his car. He took him in particular to Family Fun, Time Zone, the Launceston Show and the accused's workshop at St Leonards. He said that they went to the workshop about once a fortnight. How the trips came to an end is not altogether clear. At one point, A said that he stopped going out with the accused when he had some form of surgery on his testicles. His mother, L, thought that was in September 2003 and that was what A told the police. However, later in his evidence, A said that he continued going out with the accused after the operation (his mother said the same), but nothing happened.
A's evidence was that H accompanied them to Family Fun around five or six times and G accompanied them to Family Fun around three or four times (but never at the same time as H). A said that he thought H also accompanied them to the accused's workshop on about three or four occasions. H's evidence was that he went once. A's evidence was that G never accompanied them to the workshop. G's evidence was to the effect that she went to the workshop with the accused and A a number of times.
A summary of A's evidence of sexual conduct with the accused is as follows. It started when he was 7. The accused used to take hold of his wrist and make him touch the accused's penis under his clothes. It happened most of the times they went out. The accused also undid A's pants and touched his penis. On a number of days these things occurred in the car when it was parked in the Kingsway close to a pet shop near Time Zone. Sometimes they occurred in the accused's workshop. At the workshop they would play PlayStation and A recalled an occasion there when the accused was watching him play that game before he touched A. No-one else was present. There was one occasion that he recalled when he and the accused wrestled on the couch in the workshop. A referred to an occasion in the accused's car when the accused put his hand inside A's pants and rubbed up and down when G was also in the car. He said that he never saw the accused touch G. However, in cross-examination he said that there was such an occasion when he, the accused and G were in the car next to the pet shop and he saw the accused touch G between the legs inside her pants and at the same time the accused had a hand inside A's pants. There was also an occasion when the accused was driving the car, with H in the front seat and A in the back seat, when the accused took hold of H's wrist and made him touch the accused. A could not recall an occasion when he was in the front seat and H was in the back seat.
There were some conflicts between the evidence of A, H and G respectively. In summary, H's evidence was as follows. He was a good friend of H and was often at H's home. The first occasion he met the accused was when he was aged about 8 years and at A's home. The accused took them to Family Fun to play video games. Afterwards, when they were in the car and about to drive off, the accused reached into the back seat and touched H's genitals. A was in the front seat. H thought that what occurred was accidental. However, the accused touched him again, and it was plainly deliberate, on an occasion when they went to Time Zone. Afterwards, in the car in the Kingsway, the accused reached into the back seat and touched H who told him to stop and to go away. A would have seen what happened. On the same occasion H saw the accused touch A's penis. A was in the front with the accused. On another occasion, they were back in the car after going to Kart Magic. H was in the front and the accused tried to touch him again. H said that he got out of the car. The evidence was a little confusing, but it seems from H's evidence that there was another occasion after Kart Magic when he was in the back seat of the car and almost the same thing happened, and he pushed the accused's hand away and told him to stop it. A would have heard that, he said. H also gave evidence of the only occasion when he went to the accused's workshop. The accused and A were present. They were playing PlayStation and lost the game and the accused reached into H's pants and grabbed his penis. He did the same thing to A just afterwards. To the police, H explained that the accused became playfully angry because the boys beat him on PlayStation and it was in the course of "joking around angry" he so touched them. In a supplementary proof of evidence, H said that in the workshop the accused made him touch his penis, over his track pants. H also told police of an occasion with A and the accused at Family Fun, when he was in a game booth and the accused "grabbed hold of my doodle and my arm and pulled me out", and he told him to let go and to leave him alone. A saw none of that, he said. In a supplementary proof of evidence, H also said that he had to touch the accused's naked penis, half erect, when they were alone in the Family Fun area. The impression I have is that according to H, the three of them went out together on such trips on six or seven occasions and on possibly all of them he was sexually assaulted by the accused.
In summary, G's evidence was that she went on a number of trips with the accused to similar places and on some of those occasions, A was also present. On more than one occasion she went to the accused's workshop after they had first been to Family Fun or some other place where games were played. A was present most of the time, she said, and on one occasion a cousin of A's, was also present. At times, the evidence of some of the complainants was led in a confusing way and that particularly applied to G's evidence. I think it may account for apparent differences between her evidence and what she told the police. She gave evidence of them playing PlayStation at the workshop, of the accused tickling A and tickling her under the arms, on the chest area and near her hips and trying to put his hand down her pants but she pushed him away. She said that was the last occasion on which she went out with the accused because she decided that she did not want to go with him again and she told her mother that. (The evidence of her mother, C, was that G said that she did not want to go because it was boring.) It seemed from her evidence that there were a number of occasions when the accused tickled G and A at the workshop. She said she saw the accused's hand down A's trousers. From what she told the police, that happened on more than one occasion. She also told the police of the accused trying to pull A's trousers down and of the occasion when he tried to put his hand inside her pants. Notwithstanding that her count will be severed from the other counts for trial purposes, her evidence about those matters will be admissible on the joint trial that will include A as a complainant.
I will deal next with the evidence of how the complaint of A came to be made. To put it in context, I note that the order in which the complainants made their first statements to the police was N on 16 September 2004, E on 29 September 2004, A on 8 October 2004, G on 31 January 2005 and H on 16 May 2005. There was no evidence concerning the making of D's first statement, except that it was after September 2004.
A's complaint came about in the following circumstances. E (count 2) was A's aunt. In about August or September 2004 she learned from the sister of N (count 1) that the latter had come out with an allegation against the accused concerning sexual misconduct when N was a child, although no detail was given. E also decided to come out with what had happened to her. I mentioned earlier that in about September 2003, A had an operation. He continued to go out with the accused after that but there was no further sexual activity. It is worth noting at this point that the evidence established that the accused was popular and trusted within the extended family and as a result, he was regularly allowed to take out so many children. It is clear that A liked him very much. There was an occasion in about September 2004 when A was at the Kmart with the accused. (His mother thought it was probably during the previous summer but I prefer the evidence of E that it was within about a fortnight of her making her statement to the police on 29 September 2004.) Having decided to come out with her complaint and knowing that A was regularly going out with the accused, E went to A's parents to inform them of a little of what had happened to her as a child with the accused. That was a particularly difficult thing for her to have to do because she was not on speaking terms with her brother and sister-in-law. At the time, A was at the Kmart with the accused. She told A's parents that she had something to say and indicated that when she was a little girl something sexual had happened with the accused. She gave no detail. A's father telephoned the accused and asked him to bring A home, which he did. A came inside and said, no doubt surprised, "how come Auntie E is here?" His mother asked him whether the accused had touched him in any rude way. A looked shocked and denied it.
On the following day, his mother spoke to him again and A admitted that the accused had touched him once. On being asked what he meant he said that the accused had grabbed his hand and pulled it towards his privates and he pushed his hand away. His mother did not explore the matter further at that point. She telephoned her husband about it and he spoke to A later that night. They made a decision that the accused would not be allowed to come to their home any more. A was told of that and it made him upset. At some time he expressed the sentiment that it was his saddest day when the accused could not come around any more.
In the meantime, N's mother, S, had become aware of her daughter's basic allegation against the accused, but not the details. As a result she contacted police and made an appointment for N to be interviewed. Aware that the accused had taken many children out over the years, she resolved that their parents should be told so that they could ask their children whether the accused had dealt sexually with them. She spoke to a number of people, including her sister, M, and all of her daughters. Possibly a week after A had made his limited disclosure to his mother, S went to A's uncle's house and A was there. S directly asked A whether the accused had ever done anything wrong to him, which he denied and went red. It is worth recalling that A was fond of the accused. S then pressed him by responding, "well that's not what G has told us" (G having disclosed shortly before what had happened to her at the workshop), and according to S, A then disclosed to her that something had happened. In cross-examination, S accepted that the effect of what she probably asked A was whether anything bad had happened when he was with G and the accused, and that probably she mentioned when they were at the accused's workshop. S was adamant that all A admitted was that something had happened and he gave no detail. She then left A's uncle's house, after suggesting to A's mother that she speak to her son. It was A's evidence that he could not remember speaking to his Aunt S, but his mother remembered the occasion, although not what was said because she was distracted by something else.
It is clear that S was upset about what she had learned and she made enquiries of many people in an attempt to ascertain who had been assaulted by the accused. One of the people she contacted was the accused's sister, T. In the course of their conversation she demonstrated that she was extremely upset about it all and said words to the effect, "How could he do this, how could he do this to us" and "You know I've grown up with him, I love him, the bastard, the bastard".
Some time after the conversation between S and A at A's uncle's house, A's mother asked him if he wanted to go to the police. He decided that he would do so and he was interviewed on 8 October 2004. I find that it was only then that he provided details of what the accused had done with him. He has provided more details since.
A and G are second cousins. A's evidence was that he had not spoken to G about what happened in the accused's workshop. The only evidence to the contrary, from G, was that at some later time, after the family had started talking about the accused, she mentioned to A that she had not liked the way the accused had touched her when he tickled her and A responded that the accused did not tickle him in that way.
Counsel for the accused did not submit that on the evidence there is a real possibility that A concocted his version of the events or that his memory had been contaminated by learning of the versions of other complainants. What he submitted was that there was a real possibility that A was placed under pressure to say what questioning adults wanted to hear concerning the accused and that, out of a desire to please, he made "tainted allegations" against the accused. I do not agree.
A was very fond of the accused and he did not want their association to end. When first spoken to he denied that anything untoward had happened and when he was first interviewed by police he did not give them all of the details because he was embarrassed or, as he put it in evidence, younger and shy. I am satisfied that when he eventually gave details of what had happened to the police and subsequently, they came from his mind and were not a product of suggestion or a desire to please. There was too much detail to be accounted for in that way.
Order
Accordingly, there will be an order that there be a separate trial of the fifth and sixth counts in the indictment. There may be a joint trial of the first four counts and the evidence of what the accused did to each of the first four complainants will be admissible as coincidence evidence on the trial of the counts concerning the other three.
| N (From about 1988 to about 1991) | E (From about 1990 to about 1998) | A (From about 2001 to about 2003) | H (From about 2002 to about 2004) | D (About 1991) | G (About 2004) | |
| Relationship | Cousin – once removed | Cousin – once removed | Cousin – twice removed | Friend of A | Cousin | Cousin – twice removed |
| Age | About 6/7 to about 10/11 (Grade 5 or 6) | About 5 to about 13 | About 7 to about 9 (ended with testicular operation) | About 8 to 10 | 12 or 13 | About 8 or 9 |
| Visited complainant's home | Regularly | Regularly | Regularly | Regularly visited A's home where H would be | Regularly visited D's mother's home where D was visiting/staying | Often |
| Tickle/wrestle game thought indecent | Yes – in lounge | Yes – once in bedroom at mother's with D and brother | Yes at his workshop | |||
| Tickle/wrestle game not thought indecent | Yes - in bedroom | Yes – in more than one place | Yes, just mucking around; and once with H on workshop couch | Yes – in A's lounge | ||
| Taken out in car by accused | Many | Many | Many | Several (with A) | About half a dozen | Many – mostly with A |
| Trips to McDonald's | Yes | Yes | Yes | |||
| Trips to Family Fun | Yes | Yes | Yes | Yes (with A) | Yes | |
| Trips to Time Zone (movies) | Yes | Yes | Yes | Yes (with A) | Yes | |
| Trips to Go-Karts/Kart Magic | Yes | Yes (with A) | ||||
| N | E | A | H | D | 30 G | |
| Trips to Carrick Speedway | Yes | |||||
| Trips to Show | Yes | Yes | Yes | |||
| Trips to accused's workshop | Yes | Yes | Yes (with A) | Yes | ||
| Toys/gifts | McDonald's, lollies | Teddy bears & toys; lollies & chips; cigarettes & alcohol when aged 12-13 | At Family Fun won teddies, tickets & chocolate; ice cream at McDonald's | At Time Zone won teddies | Food & drink, stickers & posters at Carrick Speedway | Twice said taking them to Time Zone but instead drove to the workshop, pointing to toys in car & saying there' the toys from Time Zone |
Sexual assault in C’s bedroom | Several – he touched vagina under clothes and eventually penetrated & she touched/mastur-bated his penis (put her hand there or he told her to) | |||||
| Sexual assault in bedroom at mother’s | (Once with brother present) during tickle game he touched their penis | |||||
| Sexual assault in moving car | Her hand touched/mastur-bated penis | Rubbed her vagina and she rubbed his penis (he put her hand there) | ||||
| N | E | A | H | D | G | |
| Sexual assault in parked car | Many – her hand touched/mastur-bated penis and orally (hand on head or told her to); or he touched her on vagina and slightly penetrated her but not as deeply as in her bedroom | (Often near pet shop near movies -Kingsway?) Put A's hand on his penis under clothing; accused undid A's pants & touched his penis; | (A always present) Near Family Fun, accused tried to touch his genitals, by reaching into back seat; In Kingsway near Time Zone, accused touched his genitals by reaching into back seat; Outside Kart Magic, accused tried to touch his genitals; & about 3 more times | |||
| Sexual assault at Family Fun | In games booth, grabbed his penis | |||||
| Sexual assault in workshop | Touching & rubbing each other. Then, several times when she was 12-13 – in car in the workshop he had her take his penis orally & he touched her breasts under clothes. Later he gave her oral sex. | (H not present) When playing PlayStation on couch – accused touched A's penis | (A present) Playing PlayStation on couch, accused reached into his pants to grab H's penis & he got H to touch his penis over his pants | (A present) Playing PlayStation on couch, in course of tickling, he tickled her on the chest and "near my hips" & tried to put hand inside her pants | ||
| Sexual assault at sister's in Hobart | Yes | |||||
| Ejaculation | Not in mouth; probably on masturbation in car (because he used a cloth) | No | No mention | No mention | No mention | No mention |
| N | E | A | H | D | G | |
| Force used | No | No | No | No | No | No |
Situations where a complainant witnessed a sexual assault on another or another was present when a sexual assault committed on a complainant
Evidence of A –
At accused's workshop, accused wrestled with A and H on the couch.
Once in the car the accused put his hands down A's pants and rubbed his penis when G was present.
In the car accused put his hands down A's pants and rubbed his penis when H was present.
In the car, when driving, with A in the back and H in the front, accused place H's hand on his penis.
In the car, near the pet shop, the accused touched G inside her pants and at the same time had his hand in A's pants.
Evidence of H –
When parked after visiting Family Fun, accused tried to touch H's genitals in back seat while A was in front seat.
At Family Fun, accused grabbed hold of H's penis and also had H touch his penis.
In parked car in Kingsway, accused touched A's penis in front seat (on same occasion he touched H's penis in back seat).
In parked car outside Kart Magic, accused tried to touch H's genitals in front seat, and on another occasion in the back seat, while A was also in car.
At accused's workshop, when playing PlayStation on couch, accused put his hand into pants of both H and A to touch penis and had them touch his penis (H over and A under his pants).
And about 3 more times in car with A present.
Evidence of D –
In bedroom at mother's, accused touched penis of D & brother in course of tickle game.
Evidence of G –
At accused's workshop, when playing PlayStation on the couch, accused tickled G and A, put his hands down A's pants (5 or 6 times) & tried to put his hand down G's pants (once).
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