Wharton v The Queen
[2015] WASCA 133
•25 JUNE 2015
WHARTON -v- THE QUEEN [2015] WASCA 133
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 133 | |
| THE COURT OF APPEAL (WA) | 25/06/2015 | ||
| Case No: | CACR:76/2014 | 15 MAY 2015 | |
| Coram: | MAZZA JA | 15/05/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to extend time to comply with springing order granted | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN LYNNE WHARTON THE QUEEN |
Catchwords: | Criminal law Appeals against conviction and sentence Application to extend time to comply with a springing order due to failure to file appellant's cases Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 40 Supreme Court (Court of Appeal) Rules 2005 (WA), r 43, r 47, r 53 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHARTON -v- THE QUEEN [2015] WASCA 133 CORAM : MAZZA JA HEARD : 15 MAY 2015 DELIVERED : 15 MAY 2015 PUBLISHED : 25 JUNE 2015 FILE NO/S : CACR 76 of 2014
- CACR 77 of 2014
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 435 of 2013
Catchwords:
Criminal law - Appeals against conviction and sentence - Application to extend time to comply with a springing order due to failure to file appellant's cases - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 40
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43, r 47, r 53
Result:
Application to extend time to comply with springing order granted
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms P A Aloi
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Nil
- MAZZA JA:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
1 The appellant, who is self-represented, has applied to extend the time for complying with springing orders made by me in respect of his appeals against conviction (CACR 76 of 2014) and sentence (CACR 77 of 2014). As it stands, unless the appellant files and serves his appellant's case in each appeal by 4 pm on 21 May 2015, the appeals will be dismissed.
2 The appellant claims that he has been unable to prepare his appellant's cases because the respondent has failed to provide him with documents which he says are relevant to his appeal against conviction and without which he cannot prepare his appellant's case.
3 Following an order that I made on 23 April 2015, the appellant filed a list of the documents he requires. I incorporate that list, which was filed on 8 May 2015, into these reasons at Annexure A.
4 I make a number of observations about the list.
5 First, the list is extensive. Twenty eight items in total are enumerated. A number of them contain sub-items. The documents sought are additional to the documents usually required for an appeal against conviction and sentence. The appellant has told me on prior occasions that he has had, for some time, the indictment, the transcript of his trial, the exhibits and the sentencing transcript.
6 Second, the documents the appellant seeks appear to me to have no relevance to his appeal against sentence.
7 Third, when I analyse the grounds of appeal set out in the notice of appeal against conviction, and then examines the list of documents, none of the documents in that list appear to have any real relevance to those grounds.
8 The appellant has been quite candid as to why he requires the documents in the list. He is exploring a number of lines of inquiry which he hopes will lead to additional grounds of appeal and which will, ultimately, lead to the convictions being set aside. This morning, he accepted in substance that what he was doing was embarking upon a fishing expedition; that some of what he was doing was related to the credibility of witnesses in his trial; and, that some of the documents were peripheral to the issues of credibility that I have just referred to.
9 The respondent filed a document in response to the appellant's list. That document was filed on 13 May 2015. I incorporate it, by reference, into these reasons at Annexure B.
10 The respondent says that a lot, but not all, of the documents sought by the appellant have been provided or will be provided to him. Some of the documents sought by the appellant are said not to exist. Others, it is said, are not relevant to the appeals.
11 The appellant assumes that a single judge of this court has the power to order the production of the documents he seeks. He has not pointed to any particular source of power.
12 I have considered relevant provisions of the Supreme Court (Court of Appeal) Rules 2005 (WA); in particular, r 43, r 47 and r 53. Rule 53 is to be read with, relevantly to this case, s 40 of the Criminal Appeals Act 2004 (WA). I have also considered whether I have inherent power to order production of the documents sought by the appellant; in particular, those the respondent declines to produce.
13 I have great doubts as to whether I have the power to order the production of the documents sought by the appellant. However, I will assume in favour of the appellant that I do have the power. Even if I did, I would decline to exercise it in this case. As I said, the documents sought are not relevant to any ground of appeal. In truth, the appellant wishes to embark upon a fishing expedition in the hope that something will be discovered that will favour him. This is not a proper basis for this court to act.
14 Let me return to the real issue here - that is, the appellant's failure to file his appellant's cases. The appellant was convicted after trial by a District Court jury of three counts of preparing and lodging tax returns which contained false information with the dishonest intention of causing a loss to the Commonwealth. On 2 April 2014, he was sentenced to a total effective sentence of 3 years' imprisonment with a recognisance release order after 2 years.
15 The appeals were filed promptly on 24 April 2014. The appellant's cases are now nearly one year overdue. Two consent extensions were given, but were not complied with. I made a springing order requiring the filing and service of appellant's cases by 4 pm on 28 April 2015. As I have said, I granted an extension to 21 May 2015.
16 It seems to me that there is no excuse whatsoever for the appellant's failure to file an appellant's case in his appeal against sentence. Nor, in my opinion, is there any real excuse for the appellant's failure to file an appellant's case in the appeal against conviction.
17 As I have explained on other occasions in this case, there is a clear public interest for appeals to be resolved expeditiously. The delays in these cases are gross. By the time these matters are heard, the custodial part of the appellant's sentence will largely have been served. The appellant does not complain about this and, in any event, it is entirely his fault if that is how it turns out.
18 Making due allowances for the fact that the appellant is acting in person and is incarcerated, I can see no reason why the appellant's cases should not be filed promptly. Indeed, they should have been filed months ago. Despite this, I am prepared to give the appellant one more chance to file his appellant's cases. This is done on the understanding that there will not be, failing some exceptional reason, any further extension.
Order
19 The time for the appellant to comply with the self-executing order set out in par 1 of the order dated 22 January 2015 be extended to 4 pm on 26 June 2015.
Annexure A
Appellant's list of documents (filed 8 May 2015)
1. Trial transcript of the Dunn, Bartlett, Sayers trial (the first trial) INS 107 of 2012 and witness statements and any written submissions or evidence submitted at trial by Mr Dunn. (Without seeing the CD you sent into Wooroloo it probably does not cover all my request[s] which was for the WHOLE trial transcript, witness statements (as well as their evidence at trial) and any written submissions or evidence submitted at trial by Mr Dunn.)
2. The charges laid against Mr Thomson and the charges he was convicted of. Date of conviction, date of incarceration and date of sentencing. And the sentence given to Mr Thomson.
3. Any other information which reflects on the credibility of Mr Thomson. That is any adverse findings in his own trial and in other criminal proceedings or disciplinary proceedings. All offences involving dishonesty such as any other convictions and disciplinary actions. Any concession which he was granted to be a Crown witness in the Dunn, Bartlett, Sayers trials, and also my trial.
4. Any statement of CDPP obligations regarding the conduct of trials and determination of witnesses to be presented. Ie the information you referred to on the CDPP website in your correspondence of 3 December 2014 which I do not have access to.
5. Guidelines relating to clause 1.4 (of Prosecution Policy of the Commonwealth - guidelines for the making of decisions in the prosecution process) - other statements/guidelines relating to standards of fairness, openness, consistency and accountability in prosecuting offences. Ie the information you referred to on the CDPP website in your correspondence of 3 December 2014 which I do not have access to.
6. Director of Public Prosecutions' statement Of Prosecution Policy and Guidelines (Directors [sic] Statement)[.]
7. Model litigant rules. Ie the information you referred to on the comlaw website in your correspondence of 3 December 2014 which I do not have access to.
8. The Legal Profession Conduct Rules 2010 WA (LPCR) you refer to in your letter dated 22 October 2014 were not in fact enclosed and I cannot access [this] from the website you referred to in your correspondence of 3 December 2014.
9. In respect of the request for the document which initiated the charges against me and the authorisation of any person who signed it (my letter dated 1 October 2014), this actually refers to the Indictment dated 30 July 2013 and the authorisation of Martyn Plummer, Senior Assistant Director, who signed for and on behalf of the CDPP. Please provide [a] copy of the document authorising Mr Plumber to sign the indictment for the CDPP. That would be the instrument in writing referred to in s 9(2)(b) which refers to the indictment being signed by a person authorised by the Director, by [an] instrument in writing, to sign indictments. Please provide me with a copy of the actual written and signed instrument that appoints Martyn Plumber as being the person authorised by the Director of Public Prosecutions under that instrument to sign the indictment.
10. Trial transcript for CDPP v Stephen Wharton on or about 8 November 2010, the plea hearing presided over by Judge Gaynor in the County Court of Melbourne. What has been provided by Suvinee Gunasena is not what was requested.
11. Mr Philp gave evidence that he had interviewed Mr Dunn (refer ts 995). Please provide [a] copy/transcript of interviews and any notes taken by Mr Philp during the interviews and any summaries he made after the interviews, including the questions asked and the responses given by Mr Dunn. Clearly from the evidence given [by] Mr Philp at trial (refer ts 995) Mr Philp has interviewed and or examined Mr Dunn and had discussions with Mr Dunn. It is simply disingenuous to say there is no formal record of interview or examination conducted by him in answer to my question. What I require is any notes taken by Mr Philp during any interview, any discussion with Mr Dunn, any questioning of Dunn including the questions asked and Mr Dunn's responses. Also any summaries Mr Philp made after the interviews, discussions[,] copies of reports, emails written summarising the evidence and responses provided by Mr Dunn to Mr Philp's questioning. Likewise the same information if any other person conducted the interviews, examinations or discussions with Mr Dunn[.]
12. Copies of reports, emails or other communications from Mr Philp or any other person to the Prosecution/CDPP or from within the CDPP indicating that Mr Dunn was not likely to be a witness of the truth and or proposals not to call Mr Dunn as [a] witness.
13. ASIC Historical Extracts for Top Secret Document Security Pty Ltd[.]
14. ASIC forms lodged with ASIC for Changes of Directors/Secretaries, appointment of directors, appointment of secretary, retirement or removal of directors/secretaries, amendment to Annual Return particulars and deregistration of the companies for:-
- Galapoint Pty Ltd
- Markglen Pty Ltd
- Tegnico Pty Ltd
- Lawnwood Pty Ltd
- Executive Secretarial [S]ervices Pty Ltd
- Top Secret Document Security Pty Ltd
- Erital Services Pty Ltd
- Jas Curzon Pty Ltd
- Levart Pty Ltd
- Levart (Vic) Pty Ltd
- Opel Pty Ltd
- Service Extension Insurance Pty Ltd
- Baldon Holdings Pty Ltd
- Allied Technical Services Pty Ltd
- Wandeet Pty Ltd
- Tarebbower Pty Ltd
- Piamble Farm Pty Ltd
- Supercraft Holdings Pty Ltd
- Supercraft Pty Ltd
- I & I Pty Ltd
- Lonpac Asia Ltd
- Cohns Manufacturing Pty Ltd
- Cohns Bros. Ltd
- Document Depot Pty Ltd
- Jillys Perfumery Pty Ltd
- Videoscope Australia Pty Ltd
- Auto Surety Systems Pty Ltd
- U.C.S. Pty Ltd
This is to include ASIC Forms 316 Annual Return of a Company for:-
- Galapoint Pty Ltd 2002 Return Dated 6/1/2003
- Markglen Pty Ltd 2002 Return Dated 6/1/2003
- Tegnico Pty Ltd 2002 Return Dated 6/1/2003
- Lawnwood Pty Ltd 2002 Return Dated 6/1/2003
- Executive Secretarial
[S]ervices Pty Ltd 2002 Return Dated 6/1/2003
- Erital Services Pty Ltd 2002 Return Dated 6/1/2003
- Lawnwood Pty Ltd 2002 Return Dated 6/1/2003
- Levart (Vic) Pty 2002 Return Dated 7/1/2003
- And similar documents for the other companies listed above.
15. Company Statutory Records and Secretarial Files, Consent to Act as director and Consent to Act as secretary, all minutes, resolutions, etc including for appointment of directors and secretaries, and any minute or resolution to deregister the company for:-
- Galapoint Pty Ltd
- Markglen Pty Ltd
- Tegnico Pty Ltd
- Lawnwood Pty Ltd
- Executive Secretarial [S]ervices Pty Ltd
- Top Secret Document Security Pty Ltd
- Erital Services Pty Ltd
- Jas Curzon Pty Ltd
- Levart Pty Ltd
- Levart (Vic) Pty Ltd
- Opel Pty Ltd
- Service Extension Insurance Pty Ltd
- Baldon Holdings Pty Ltd
- Allied Technical Services Pty Ltd
- Wandeet Pty Ltd
- Tarebbower Pty Ltd
- Piamble Farm Pty Ltd
- Supercraft Holdings Pty Ltd
- Supercraft Pty Ltd
- I & I Pty Ltd
- Lonpac Asia Ltd
- Cohns Manufacturing Pty Ltd
- Cohns Bros. Ltd
- Document Depot Pty Ltd
- Jillys Perfumery Pty Ltd
- Videoscope Australia Pty Ltd
- Auto Surety Systems Pty Ltd
- U.C.S. Pty Ltd
16. All Crossline Overseas Ltd documents including those seized on 9 June 2005 from the Irdi Lawyers office (noted as Manilla File in the seizure record), all documents involving Crossline Overseas Ltd referred to in the Trevor Thomson Statements including prommisory [sic] notes endorsed to Crossline Overseas Ltd. Letters that Mr Thomson wrote to Strachans re [sic] Crossline Overseas Ltd and any responses. This is relevant to the evidence given by Crown witness Thomson.
17. Correspondent (2 letters) from Gus Irdi to Mr Thomson in relation to demanding payment of promissory notes and responses from Mr Thomson. Correspondence between Mr Thomson and M/s [sic] Grace dated 26 February 2004, 14 January 2005, 25 January 2005 and any responses. Correspondence between Mr Thomson and Mr Dunn dated and any response.
18. Unused material we should expect to receive. Any material that either runs counter to the prosecution case against me or might reasonably be expected to assist me in advancing defences including material which is in the possession of a 3rd party. This would include any material that the investigating agency chose not to disclose to the CDPP and would therefore not have been provided within the 3 volumes of unused material provided. You need to make Investigations to ascertain what other material they (the investigating agency) hold in respect of their investigation of this matter.
19. Estate of Peter Hutchins. Applications for Probate in Victoria and Queensland (or any other State) and grants of Letters of Administration to allow the executors of the Estate of Peter Hutchins to deal with estate assets.
20. With Respect to Mr Gillies what concessions (including granting an immunity from prosecution) were granted to him to be a Crown witness and what date were those concessions made/granted to him. In reference to your comment in your correspondence of 3 December 2014, Mr Gillies makes comments in his ACCC examination that would indicate he has been granted immunity from prosecution or some other concession.
21. Did the CDPP provide advice to the Investigative Agency on legal or other issues during the investigation. If so please provide copy of the brief of evidence and the advice. When did the CDPP become involved in the investigative/potential prosecution. What date was the matter referred to the CDPP. What date did the CDPP determine the prosecution should be instituted. Did the CDPP draft the Perth Magistrates Court Prosecution Notice dated 15 June 2012. The CDPP is the prosecutor named in that Prosecution Notice. The Prosecution Notice signed by Mr Robert M Philp (described as Principal Specialist Financial Investigator employed by the Australian Crime Commission), being the person issuing this Notice, and the charges set out in Attachment 1 were signed by Mr Philp but signed by him in the capacity as the 'Prosecutor'. By what authority does Mr Philp sign for and on behalf of the CDPP.
22. When did Mr Hastings QC provide his advice to the CDPP (refer [ts] 153 where it was said that the framing of the indictment was based upon his advice). Please provide [a] copy of the advice. What date did the CDPP decide on the charges set out in the [i]ndictment dated 30 July 2013.
23. What was the date the CDPP made decision to proceed with a trial on indictment. Who made the decision. Who signed it.
24. Material requested and dated 16 November 2014 (the hand written component) regarding the meeting between Paul Hutchins, Sue Logas and Adrian Clutterbuck on 31 July 2003 and the notes recorded by Sue Logus [sic] on 1 August 2003. Please provide all correspondence between Paul Hutchins, Sue Logas and Adrian Clutterbuck (including responses to each other) including the letter Paul Hutchins said he would send. Sue Logas said she would help him out with any information, so I would expect there to be correspondence between them - [r]efer [to] page 2 second last paragraph of her notes.
25. Copy of the last tax return lodged for Peter Hutchins following his death ie the 2003 tax return.
26. Just prior to the commencement of the trial on 28 February 2014 Nicola Cave provided to Mr Watters correspondence which attached a copy of a Death Certificate for Peter Hutchins to be incorporated into the trial brief. The certificate copy is dated 14 February 2014 by the Registrar General. Can you confirm this is the first time this evidence is produced and incorporated into the brief. If not please provide [a] copy of [the] previously obtained Death Certificate. Please make investigations with the Investigating Agency for [a] copy of a death certificate obtained as part of their investigations into this matter from 2003 to current date and provide me a copy.
27. Regarding the Criminal Code Amendment (Theft, Fraud, Bribery, and Related Offences) Bill 1999. Please provide:-
- Explanatory Memorandum[.]
- Attorney General's Department Explanation[.]
- Attorney General's Submissions - transcript or other written submission - [a]t least in respect of [g]eneral [d]ishonesty.
- CDPP Submissions - transcript or other written submissions - [a]t least in respect of [g]eneral [d]ishonesty.
- CDPP Prosecution Policy of the Commonwealth: Guidelines for the making of decisions in the Prosecution Process 1998 (Prosecution Policy Statement) and any later version arising from the passing of the Criminal Code Amendment (Theft, Fraud, Bribery, and Related Offences) Bill 1999.
- Committee Report / Explanation / Submission / Concerns / Recommendations re [sic] [g]eneral [d]ishonesty, Re [sic] Inquiry into Proposed Criminal Code Amendment (Theft, Fraud, Bribery, and Related Offences) Bill 1999.
- Article - Alex Steel 'The Appropriate Test For Dishonesty' (February 2000) Criminal Law Journal Vol 24 P 47. I believe this was a reference material as part of the submissions and Explanatory Memorandum.
28. I'm having difficulty obtaining material mentioned in the trial at around [t]ranscript page 152.
- The Attorney General's Department explanation of the sections in the Criminal Code in particular sections 11.2, 11.3 and 135.1(3).
- Stone DCJ also mentions loose leaf explanations to supplement this.
- and also mentions the case Watson v Watson. I have not been able to find that case.
Respondent's list of documents (filed 13 May 2015)
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1. |
Provided on 4 x CDs currently held by Wooroloo Prison Farm[.] |
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2. |
This information was previously provided to your lawyer Graeme Allen on 22 October 2013. Please find enclosed a copy of that correspondence. |
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3. |
This information was previously provided to your lawyer Graeme Allen on 22 October 2013. Please find enclosed a copy of that correspondence[.] |
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4. |
Referred to CDPP website. |
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5. |
Referred to CDPP website. |
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6. |
Prosecution Policy of the Commonwealth provided[.] 22 October 2014: | |||||||||||||
7. |
Referred to 'The Commonwealth's Obligation to Act as a Model Litigant' as contained in Appendix B of the Legal Services Directions under the Judiciary Act - ComLaw website. |
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8. |
Referred to State Law Publishe[r] website. |
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9. |
Prosecution notice sent[.] 3 December 2014: |
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10. |
Transcript dated 29 November 2010 provided (reasons for decision)[.] 12 December [2014]: |
DCPP Perth does not have a copy of the trial plea transcript from about 8 November 2010. | ||||||||||||
11. |
Letter from Fleur Allen: 'I have liaised with Mr Rob Philp and no formal record of interview or examination was conducted by him[.] |
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12. |
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13. |
Letter from Fleur Allen[:] 'Not relevant to the trial. In any event, ASIC Historical Extracts are publicly available documents that can be accessed via ASIC's website'[.] |
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14. |
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15. |
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16. |
Response from Fleur Allen[:] 'I have examined your grounds of appeal and I do not consider that these requests are relevant to any grounds of appeal. If you have a different view please let me know specifically which ground of appeal the document is relevant to.' |
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17. |
Letter from Fleur Allen[:] 'I have examined your grounds of appeal and I do not consider that these requests are relevant to any grounds of appeal. If you have a different view please let me know specifically which ground of appeal the document is relevant to.' |
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18. |
Letter from Fleur Allen: 'On 5 August [2014] you were served with 3 volumes of unused material and a schedule of unused material. Please find enclosed a copy of that schedule.' |
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19. |
Letter from Fleur Allen[:] 'I have examined your grounds of appeal and I do not consider that these requests are relevant to any grounds of appeal. If you have a different view please let me know specifically which ground of appeal the document is relevant to.' |
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20. |
Letter from Fleur Allen[:] 'As far as I am aware Mr Gillies was treated as a witness and was not granted any immunity from prosecution[.]' |
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21. |
letter from Fleur Allen: 'I have examined your grounds of appeal and I do not consider that these requests are relevant to any grounds of appeal. If you have a different view please let me know specifically which ground of appeal the document is relevant to.' |
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22. |
letter from Fleur Allen[:] 'I have examined your grounds of appeal and I do not consider that these requests are relevant to any grounds of appeal. If you have a different view please let me know specifically which ground of appeal the document is relevant to.' |
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23. |
letter from Fleur Allen: 'I have examined your grounds of appeal and I do not consider that these requests are relevant to any grounds of appeal. If you have a different view please let me know specifically which ground of appeal the document is relevant to.' |
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24. |
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25. |
Deemed by Fleur Allen to be irrelevant to the appeal[.] |
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26. |
Deemed by Fleur Allen to be irrelevant to the appeal (letter dated 18/2/2015)[.] |
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27. |
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28. |
Letter from Fleur Allen - '… please note that it is not appropriate for this office to give you detailed legal advice. I respectfully suggest you obtain independent legal advice.' |
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