Todd (a pseudonym) v The Queen
[2016] VSCA 29
•3 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0006
| OLIVER TODD (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
| UPPER MURRAY CENTRE AGAINST SEXUAL ASSAULT | Intervening |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Applicant.
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| JUDGES: | WEINBERG, WHELAN and PRIEST JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 3 March 2016 | |
| DATE OF JUDGMENT: | 3 March 2016 | |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 29 | 1ST Revision: 24 March 2016: Correction of para nos [39] ff |
| RULING APPEALED FROM: | DPP v [Todd] (Unreported, County Court of Victoria, Judge Sexton, 17 December 2015) | |
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CRIMINAL LAW — Interlocutory appeal — Pending trial for sexual offences — Judge’s refusal to grant leave to compel production of confidential communication pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 — Judge’s refusal to certify under s 295(3) of the Criminal Procedure Act 2009 — No error in judge’s refusal to certify.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones and Ms E McKinnon | Dawes & Vary Riordan Pty Ltd |
| For the Crown | Dr N Rogers SC and Mr B Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
| For the Intervenor | Mr O P Holdenson QC and Ms M C Fox | Health Legal Pty Ltd |
WEINBERG JA:
I invite Priest JA to deliver the first judgment.
PRIEST JA:
Introduction
In circumstances where a trial for sexual offences is pending in the County Court, the applicant sought leave under s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’) to issue subpoenas directed to a number of organisations or individuals. Each application was refused, and the judge later refused to certify pursuant to s 295(3) of the Criminal Procedure Act 2009 (‘the CPA’).
The applicant now seeks to challenge the judge’s refusal to certify, and seeks leave to appeal the ruling[2] so far as it applies to two organisations and one individual.
[2]The ruling constitutes an ‘interlocutory decision’ within the meaning of s 3 of the CPA.
In my opinion, any proposed application for leave to appeal is without substance. For the reasons that follow, it must be refused. That conclusion, of course, seals the fate of the application to review the judge’s refusal to certify.
Background
By way of background, an indictment has been filed in the County Court charging the applicant with rape[3] (two charges – charges 1 and 4), indecent assault[4] (two charges – charges 2 and 3) and possessing a drug of dependence[5] (one charge – charge 5).
[3]Crimes Act 1958, s 38(1).
[4]Crimes Act 1958, s 39(1).
[5]Drugs Poisons and Controlled Substances Act 1981, s 73.
The applicant, who at relevant times was aged 42 years, ran a photography business from his home part-time. ‘TA’, the complainant, was aged 18 years, and was interested in pursuing casual photographic modelling. Essentially, the prosecution case is that, on 26 December 2013, TA went to the applicant’s home for a fashion shoot. Having taken photographs of TA dressed in a negligee and G string, the applicant had TA completely undress and he took further photographs of her naked. In the course of doing so, the applicant put his fingers in TA’s vagina (charge 1 – rape), rubbed an ice cube on her right breast (charge 2 – indecent assault), sucked her right nipple (charge 3 – indecent assault) and, having attired her in a vest (but leaving her otherwise naked), lingually penetrated her vagina (charge 4 – rape).[6]
[6]In a later police search of the applicant’s home, a small amount of cannabis was found (charge 5 – possession of a drug of dependence). The applicant has indicated an intention to plead guilty to a charge of possessing cannabis.
In the applicant’s Defence Response signed by counsel, it is asserted with respect to each of charges 1, 2, 3 and 4, that, ‘All of the matters alleged in [the charges] are denied’. Hence, as I understand it, the defence position is that none of the acts founding charges 1 to 4 occurred.
A committal hearing took place over two days in October 2015, during which TA was extensively cross-examined. At the close of evidence, the applicant was committed for trial in the County Court.
The applications made to the County Court
On 17 December 2015, a judge in the County Court refused applications made under s 32C of the Act, and, as I have mentioned, later refused to grant a certificate pursuant to s 295(3) of the CPA. The applications under s 32C had sought to compel the production of documents held by the following organisations and people:
· first, Gateway Health Wangaratta (‘Gateway’);
·secondly, Upper Murray Centre Against Sexual Assault (‘UMCASA’);
· thirdly, ‘Ms [‘GE’]’, of North East Natural Health Centre;
· fourthly, Northeast Health Wangaratta Hospital; and
· fifthly, Department of Education and Early Childhood Development, North East Region, Wangaratta High School.
It should be noted, however, that only the first three categories of material — from Gateway, UMCASA and Ms GE — remain in contention. (The Gateway documents are those of the complainant’s general practitioner; and the documents of UMCASA and Ms GE are, in effect, counselling records and similar.)
Each of the subject applications for leave to issue a subpoena identified the relevant ‘protected evidence’ as being:
1.All documents relating to patient [TA] born [date] concerning any allegation of sexual activity between [TA] and [the applicant] (including: clinical notes; notes or recordings of disclosure interviews; drawings; body charts; reports; and hand-written, printed or computerised records).
Additionally, the applications directed to Gateway and Ms GE both identified a further category of protected evidence:
2.All documents relating to any psychiatric and/or psychological treatment, and/or counselling received by patient [TA] born [date] (including: documents relating to medication prescribed or unprescribed).
Further, in what I take to be an identification of relevant facts in issue, it is stated in each of the three relevant applications that the applicant ‘will assert that’:
·The reliability, and particularly the credibility, of the witness is the critical issue in the proceedings, specifically the witness is not a witness of truth; and
·The witness may suffer from a psychological and/or psychiatric illness; and such illness is of considerable relevance to the witness’s reliability.
The statutory regime
Before turning to the impugned ruling and the contentions of the parties, it is convenient to set out the statutory regime which governed the primary judge’s ruling.
Division 2A of the Act deals with the production and adduction of evidence of confidential communications. Certain guiding principles, which it is unnecessary to rehearse, are set out in s 32AB; and s 32B contains a number of definitions, including of ‘confidential communication’. Section 32C provides:[7]
[7]Emphasis added.
32C Exclusion of evidence of confidential communications
(1)In a legal proceeding—
(a)a party cannot seek to compel another party to produce a document containing a confidential communication;
(b)a document is not to be produced if it would disclose a confidential communication;
(c)evidence is not to be adduced if it would disclose—
(i)a confidential communication; or
(ii)the contents of a document recording a confidential communication—
unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).
(2)A party seeking to compel the production of, or to produce or adduce, protected evidence must, not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced, give notice in writing of their intention to—
(a)each other party to the proceeding; and
(b)in the case of a criminal proceeding, the informant; and
(c)the medical practitioner or counsellor, as the case requires, if not a party.
(3)The court may—
(a)fix a period of notice shorter than that referred to in subsection (2); or
(b)waive the requirement to give notice under subsection (2).
(4)On receipt of a notice under subsection (2)(b), the informant must give a copy of the notice to the protected confider within a reasonable time after its receipt.
(5)Whether or not notice has been given under subsection (2) or (4), the medical practitioner or counsellor, as the case requires, and the protected confider may, with the leave of the court, appear in the proceeding and make submissions.
(6)For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave.
(7)Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.
Various restrictions on granting leave are set out in s 32D:[8]
[8]Emphasis added.
32D Restriction on granting leave
(1)A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—
(a)the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and
(b)other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and
(c)the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.
(2)Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—
(a)the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;
(b)the extent to which the protected evidence is necessary to allow the accused to make a full defence;
(c)the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;
(d)whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias whether the protected confider objects to the disclosure of the protected evidence;
(f)the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.
(3)A court may grant leave to compel the production of, or to produce or adduce, part of—
(a)a confidential communication; or
(b)the contents of a document recording a confidential communication—
and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.
(4)The court must state its reasons for giving or refusing to give leave under this section.
(5)If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.
The complainant’s evidence at committal as the basis for the applications
Counsel for the applicant founded the several applications under s 32C on aspects of the complainant’s evidence at committal. Thus, prior to turning to the judge’s ruling, it is necessary to summarise that evidence, since it was pivotal to her consideration of the applications.
TA was cross-examined in the course of committal proceedings by counsel for the applicant. She gave evidence that after the offending, she ‘went into severe depression’ which she was ‘trying still to overcome’. TA said that the events had ‘a very huge impact on [her] life’. Antidepressant medication was prescribed by her general practitioner (from Gateway) because she had been cutting her wrists. Nonetheless, she was now off the antidepressants, trying to get her life ‘back on track’, studying and ‘trying to overcome all the negative depression’. Prior to the alleged offending, TA had never been on antidepressant or ‘psychotropic’, ‘psychiatric’ or ‘psychological’ medication and had never had any psychological treatment.
Apart from her general practitioner, TA had seen a person from UMCASA ‘for about three sessions’. She had also seen a counsellor, Ms GE, who had written a report for her. TA had discussed ‘the alleged incident’ with Ms GE, who had given her exercises to do, and had helped her ‘talk through things’ and shown her how to ‘cope with things’.
The submissions to the primary judge
It will be remembered that the documents sought were from the complainant’s general practitioner (Gateway); from UMCASA; and from Ms GE (a counsellor at North East Natural Health Centre).
In support of the applications under s 32C, counsel took the judge to various parts of the complainant’s committal evidence. He submitted that those parts of the evidence to which he drew attention justified the granting of the applications. Counsel also contended that, in order to decide whether to grant leave under s 32D, s 32C(6) of the Act compelled the judge to inspect the documents which were the subject of the applications.
As to the merits of the applications, the tenor of counsel’s submissions can, I think, be gauged from the following exchange:
[COUNSEL]: In my submission if one looks at the – just take the slashing up for example. There’s no evidence as to when the slashing up began. It might have gone on prior to this, we don’t know. All we know is that she did slash up after. What happens if she was slashing up before?
HER HONOUR: That’s just guesswork isn’t it?
[COUNSEL]: Not necessarily Your Honour. If the – it’s guesswork with respect to say that this is because of these events. That’s guesswork.
HER HONOUR: No that’s based on the evidence. It might not be right but the fact is that before me is sworn evidence that it was after the events. I’m just saying it would be different if she said, ‘I’ve had problems before but I’m much worse because of this’. But she’s not saying that. She’s saying, ‘I did not have any treatment; did not consult anybody before these events’. So if she did go the doctor for a spider bite then – or anything else not connected with antidepressants, then why should the materials be released?
[COUNSEL]: I’ve made the submission Your Honour. An inference is that just because one has been put on antidepressants after and just because one has slashed up after, doesn’t mean that there’s no problems before. And in my submission if that’s insufficient, I can’t go beyond the evidence and it’s a question of inference.
The impugned ruling
In ruling on the applications, the judge noted that the issue on the trial ‘will be whether the events occurred as alleged’.
Despite the submission of counsel for the applicant that the judge ‘should receive material in each instance … from the producing parties under s 32C(6)’, her Honour considered that, for the purposes of determining the application for leave, she ‘should only do so if there is some material suggesting a basis which needs to be explored by a judge looking at the material’. Having cited from an authority dealing with the principles relevant to the production of the documents by a witness pursuant to a subpoena,[9] the judge observed that ‘it could not be intended by the legislation in Division 2A that the discretion that the court may order that documents be produced to it and inspected for the purpose of determining an application for leave, should be exercised on a lower threshold than for general subpoenas’.
[9]Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28] (J Forrest J).
The judge said that there was no material before her to suggest that the complainant was suffering from a psychiatric or psychological condition before or at the time of the alleged offending. Citing LAL,[10] her Honour’s view was that a ‘reading of the complainant’s lengthy cross-examination over two days at committal, shows that even if she has suffered depression since the alleged events as she admitted she has, it did not … affect her capacity to observe, recollect or express the matters which her evidence is tendered to prove’. As a result, the judge determined that — with one exception not presently relevant — she would not receive ‘the material under the applications’, and would not ‘order under s 32C(6) that the material be produced to the court alone for the purpose of determining the application’.
[10]LAL v The Queen [2011] VSCA 111.
Describing the test under s 32D(1) as ‘restrictive but also conjunctive’, the judge said ‘all three limbs of the test must be met’. With respect to the three categories of material still in contention, the judge said that it is apparent ‘that the complainant attended each of these people for confidential medical assessment and assistance and confidential counselling following the alleged events’. Her Honour expressed the view that ‘confidentiality is paramount in the circumstances of this case, where there is no other material to indicate that the complainant had any pre-existing condition’. TA was aged 18 the time of the alleged offending and was ‘beginning her time seeing these people and she is now still only 20’. The judge said that she did ‘not know if she is still seeing these people but if she is, then the confidential relationship is necessary to be continued’.
Ultimately, the judge was of the opinion that the test — ‘substantial probative value to a fact in issue’ — was not met. Citing Baker,[11] her Honour described it as a ‘high’ test, and said:
… It must be established that the evidence will have substantial probative value for a fact in issue as the first limb of the test, and here there is no indication that there is any such evidence in such existence [sic]. As I have indicated, there is nothing before me to indicate that I should explore the matter further by receiving materials under [s 32C(6)]. Therefore, the first limb not being met, it is not necessary to consider the other limb or limbs if necessary and therefore the applications are refused for those remaining three applications. And I so rule.
[11]Baker (a Pseudonym) v The Queen [2015] VSCA 323, [50].
When subsequently asked by the applicant’s counsel to certify pursuant to s 295(3) of the CPA that the ruling was of sufficient importance to the trial to justify it being determined on an interlocutory appeal, the judge refused to do so. Her Honour was of the view that, ‘while there are a number of questions in this case, they (sic.) are not attended by sufficient doubt for the reasons I gave in my ruling’.
The applications in this Court
On 18 January 2016 the applicant filed an Amended Notice of Application for Review of Refusal of Judge to Certify under Section 295(3) of the CPA and an Amended Notice of Application for Leave to Appeal against an Interlocutory Decision. The application are, as I have said, limited to the first three categories referred to above: Gateway, UMCASA and Ms GE. The proposed grounds of appeal are:
1. The learned judge failed to exercise her discretion under section 32C(6) of the Evidence (Miscellaneous Provisions) Act 1958 to order the production of documents so that a judgment can be made pursuant to Section 32D(1) of the Act.
2. The learned trial judge failed to exercise that part of her jurisdiction in Section 32D(1) of the Act which requires her to take into account evidence other than that ‘to be produced or adduced by the party seeking leave’.
3. The learned trial judge failed to exercise that part of her jurisdiction in Section 32C(6) of the Act which requires her ‘For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it...’
4. The learned trial judge erred in making the comparison required by her under section 32D(1) of the Act without inquiry as to the production of relevant material and proceeding to make the judgment without satisfying herself that there was no relevant material other than that that was before her.
Counsel for the applicant submitted that, before a subpoena is issued, the applicant for the subpoena must satisfy the test in s 32D(1) (including the requirement that the document will have substantial probative value to a fact in issue) without any opportunity to inspect the document, and without the Court having inspected the document. It is impossible to make a proper adjudication on the matters required by s 32D(1), however, absent the documents sought to be subpoenaed. The matters spelled out in s 32D(2), so it was submitted, must be taken into account at the time of deciding whether to issue the subpoena. But it cannot possibly be known what information is in the ‘file’ if both defence counsel and judge do not know what it is that is in the ‘file’ sought to be subpoenaed.
It was contended that no decision can be made under s 32D(2) unless the documents are seen by the judge. Further, in reliance on s 32D(6), it was asserted that in this case ‘there has been no attempt to comply with the mandatory requirements relating to the applications’. Section 32C(6), so it was argued, ‘provides the only mechanism by which the judge is able to obtain material to make the judgment required of her to take into account the mandatory matters in s 32D(2)’. If the court does not make an order that the document be produced to it (and to it alone) then the mandatory provisions in s 32D(2) can never be complied with.
Analysis
By virtue of s 32C(1)(b) of the Act, unless the court grants leave to compel its production, a document is not to be produced if it would disclose a confidential communication.[12] It is provided by s 32C(6) that, for the purposes of determining the application for leave to compel the production of the confidential communication, the court may order that the document be produced to it and may inspect it (but must not make the document available, or disclose its contents, to the applicant for leave).
[12]There is no dispute that the relevant documents contain confidential communications. Section 32B(1) defines confidential communication as ‘a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred’.
Section 32D(1) provides that a court must not grant leave to compel the production[13] of protected evidence[14] unless satisfied of three things on the balance of probabilities. The first of those things, specified in s 32D(1)(a), is that the evidence will — either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave — have substantial probative value to a fact in issue. And s 32D(2) spells out a number of matters that the court must take into account, including ‘the extent to which the protected evidence is necessary to allow the accused to make a full defence’.[15]
[13]Section 32D(3) permits the court to grant leave to compel the production of part of a confidential communication or the contents of a document recording a confidential communication.
[14]Section 32B(1) defines protected evidence as ‘evidence that is protected from being produced … by section 32C(1)’; that is, a document containing, or which would disclose, a confidential communication.
[15]Section 32D(2)(b).
The primary judge held, in effect, that the applications before her failed at the threshold. As the judge observed, before a court turns to the other limbs of s 32D(1) of the Act, it must first be established that the protected evidence of which production is sought will have ‘substantial probative value to a fact in issue’; but, as she found, ‘there is no indication that there is any such evidence in such existence (sic.)’. In this case, the relevant fact in issue on each charge is whether the relevant activity took place. And, as identified in the various applications under s 32C, the applicant asserts that relevant to that fact in issue is the reliability and credibility of the complainant (specifically whether ‘the witness is not a witness of truth’), and whether the complainant may suffer from a psychological or psychiatric illness (such illness bearing on her reliability). The burden of persuading the judge that the protected evidence will have substantial probative value to a fact in issue rested with the applicant. His counsel sought to satisfy that burden by reference to the complainant’s evidence at committal.
A fair reading of the complainant’s evidence at committal makes plain that she suffered depression after the alleged offending, manifested by her indulging in self-harm. She was prescribed antidepressant medication and undertook counselling. On her evidence, she had undertaken no treatment — pharmacological or otherwise — for any psychiatric or psychological condition prior to the offences perpetrated against her. Despite the clear import of the complainant’s evidence, however, counsel for the applicant submitted to the primary judge that ‘just because one has slashed up after, doesn’t mean that there’s no problems before’. That, with respect, ignores the fact that the complainant’s depression — which had its onset after the alleged offending — says nothing about her psychological condition at the time of the relevant events. Moreover, on the material presently available, I see nothing to suggest that the fact that the complainant has suffered from depression since the alleged offending bears upon her general reliability or credibility as a witness. The judge was, therefore, correct to find that the applicant had not demonstrated that the relevant protected evidence had substantial relevance to a fact in issue.
As I understand the submissions of the applicant’s counsel, however, it was contended that a judge is unable to make the assessment required under s 32D(1) unless he or she first orders that the relevant document be produced and inspects it. Hence, as I comprehend the gist of the submission, it was argued that may in s 32C(6) should — at least in this case — be read as must. That submission must, however, be rejected. On the face of it, a statutory provision which uses the term ‘may’ is permissive.[16] Thus, if the statute provides that a person ‘may’ do something, the person has a discretion whether or not to do it.
[16]Interpretation of Legislation Act 1984, s 45(1). See also Ex parte Gleeson [1907] VLR 368, 373. See also Ward v Williams (1955) 92 CLR 496, 505.
Section 32C(6) provides that a court may order that a confidential communication be produced and inspect it. Had the legislature’s intention been that the court must in all cases order production of the relevant document and inspect it, it might have been expected that s 32C(6) would be expressed in obligatory terms. It is not. Hence, although one might readily imagine cases where it would be necessary for a court to inspect a document in order to determine whether it could properly be said to satisfy the three limbs of s 32D(1), it is not mandatory that it be done in every case. The judge has a discretion which must be exercised according to the facts and circumstances of each particular case. Based on the evidence before the judge in this case, however, it cannot be concluded that inspection of the protected communications was required.
Conclusion
Since the impugned ruling is not attended by doubt, the application to review the judge’s refusal to certify must be refused. It necessarily follows that the application for leave to appeal the interlocutory decision cannot be granted.
Before leaving the matter, however, it should be repeated that, save for the unusual case — where, for example, the determination of an appeal against an interlocutory decision may render the trial unnecessary; substantially reduce the time required for the trial; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial — fragmentation of the trial process by an application for leave to appeal against an interlocutory decision, is undesirable.[17] The fetters placed on appellate intervention at an interlocutory level emphasise a legislative intention that the authority of a trial judge ought not lightly be interfered with.[18] Thus, although one must be cautious not to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted; and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected.[19]
[17]DPP v Pace (a Pseudonym) [2015] VSCA 18, [24]–[25] (Priest and Beach JJA).
[18]Ibid.
[19]Ibid.
Given these matters, legal practitioners should be circumspect when tendering advice as to whether leave ought to be sought to challenge an interlocutory decision. In the present case, it should have been obvious, at least upon reflection, that the judge’s refusal to certify was not attended by doubt (or, at any rate, doubt sufficient to realistically leave it open to appellate review). A particularly undesirable feature of the applications being made to this Court is that the trial — originally fixed for hearing in February — has now had to be delayed for some months. It need hardly be said that such delay is not in the interests of justice.
WEINBERG JA:
I agree, for the reasons given by Priest JA, that the application to review the judge’s refusal to certify should be dismissed.
WHELAN JA:
I agree
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