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JCU in Court for adverse actions against academic freedom

Posted on Categories Human rights, Industrial relations, Liberty, Unfair dismissalTags , , , , , , Leave a comment on JCU in Court for adverse actions against academic freedom

Climate blogger Jennifer Marohasy provides an interesting report on Dr Peter Ridd’s case against James Cook University in the Federal Circuit Court. Ridd’s employment as an academic of the university was terminated in May due to him speaking out and defying a gag order imposed by the university.

Marohasy provides the following circumstances of Dr Ridd’s dismissal:

“Dr Ridd spoke out initially about there being no quality assurance of Great Barrier Reef science – science that is arguably misused to secure billions of dollars of tax-payer funding. When the University tried to stop Dr Ridd doing this, Dr Ridd spoke out against University management – making all the documentation public including on his new website.”

This case raises questions about academic freedom and the tolerance of universities towards those who dissent from the majority opinion on climate change.

Whilst the Court has declined to reinstate the professor, it does appear that his claim is based on alleged adverse actions in contravention of section 340 of the Fair Work Act 2009, as well as an alleged breach of the enterprise agreement by JCU.

The presiding judge is Judge Jarrett. Judge Jarrett in 2016 famously found in favour of three students at the Queensland University of Technology who had been sued for allegedly contravening section 18C of the Racial Discrimination Act.

Serial rapist’s prior convictions held to be admissible

Posted on Categories Criminal lawTags , , , , , , Leave a comment on Serial rapist’s prior convictions held to be admissible

The Queensland Court of Appeal has upheld the convictions of a rapist whose prior rape convictions were admitted into evidence at his trial.

jail

The facts

Mark Little had pleaded guilty to raping women on 2 November 1994, 12 November 1998 and 10 February 1999.

The complainant was a sex worker who was in a relationship with Little. On the morning of 19 November 2015 their relationship ended as a result of an exchange of acrimonious text messages between them.

According to complainant’s evidence at trial, that evening a man in a balaclava, mirrored sunglasses, and black clothing knocked on her door before bursting in her hotel room, throwing her across the room, threatening her with a knife and tying her up. The man then directed her to fellate him to ejaculation, and she did so before he penetrated her vagina and anus.

The complainant’s evidence at trial was that during the sexual acts it became apparent to the complainant that the man was Little.  The man then told the complainant she was a junkie, and asked where her drugs were (she replied she didn’t have any) before he told her he had her Medicare card, and that she was not to tell anyone or he would kill her. The man then told her not to move for 10 minutes and left.

At a pre-trial hearing, Harrison DCJ determined that Little’s previous rape convictions were admissible because they were relevant to identifying him as the man in the balaclava and to his state of mind as to the issue of consent.

After a 4 day trial, Little was convicted by a jury of three counts of rape (counts 2-4) but acquitted of stealing (count 1).

Little appealed the jury’s convictions on the grounds that the jury’s verdicts were inconsistent, and that the evidence of his prior sexual offending should not have been admitted.

Relevant law

Section 668E of the Criminal Code (QLD) provides that:

“The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.

(1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

In the High Court case of Osland v The Queen (1998) 197 CLR 316, McHugh J held that:

“When an appellate court sets aside a jury’s verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty. Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused.”

In the judgment of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Phillips v The Queen (2006) 225 CLR 303, it was said that:

“The ‘admission of similar fact evidence is exceptional and requires a strong degree of probative force’. It must have ‘a really material bearing on the issues to be decided’. It is only admissible where its probative force ‘clearly transcends its merely prejudicial effect’. ‘[I]ts probative value must be sufficiently high; it is not enough that the evidence merely has some probative value of the requisite kind.’ The criterion of admissibility for similar fact evidence is ‘the strength of its probative force’. It is necessary to find ‘a sufficient nexus’ between the primary evidence on a particular charge and the similar fact evidence. The probative force must be ‘sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused’. Admissible similar fact evidence must have ‘some specific connection with or relation to the issues for decision in the subject case.’

As explained in Pfennig v The Queen: ‘[T]he evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it.’”

Court of Appeal decision

Fraser JA (with whom the other Justices agreed) noted in respect of the reasonableness of the jury’s verdicts that “although the acquittal on count 1 seems surprising in the context of the convictions on the other counts, this is not a case where there is an inconsistency between verdicts which “rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice””, as there was no evidence the complainant had conducted a search in her hotel room and her mobile phones were never found.

Fraser JA rejected Little’s arguments that the previous sexual offences were distinctly different to the rape charges in this case. Rather, the prior convictions and the rape charges at trial revealed “a striking pattern of offending”, due to a number of common features, including the victims being women, the victims being the only adults in their homes, entry being sexually motivated, the performing of sexual acts, the wearing of a balaclava, threats to kill and the use of a knife to threaten the victims.

In respect of some differences between the prior offending and the charges at trial, Fraser JA commented that:

“It is not ordinarily to be expected that a modus operandi will involve behaviour by an offender which is identical in every single respect upon each occasion of offending. Some changes are virtually inevitable as a result of differing circumstances, such as the unexpected behaviour of an intended victim… The coincidence between the appellant’s conduct in these three incidents and the complainant’s account of his alleged conduct in this case added very real cogency both to the complainant’s identification of the appellant as the offender and to her evidence that the appellant had disguised himself and engaged in violent, threatening, and dominating conduct before, during, and after committing the sexual acts.”

In this case, the similar facts evidence was such that “it is abundantly clear that its probative force transcends its prejudicial effect”, and that there was no reasonable view of it consistent with Little’s innocence. As a result, the three prior rape incidents were admissible and no miscarriage of justice had occurred.

Conclusion

As the case law shows, courts are generally reluctant to admit prior convictions because of the potentially prejudicial effect of making a jury believe that the accused is “the sort of the person who might or even would commit” the offences they have been charged with. In this case however, the similarities between the evidence at trial against Little and his prior offending were sufficient to make those prior convictions admissible.
 
There is little doubt that the striking pattern of offending would have left the jury in no doubt that Little was guilty of having committed the rapes he was accused of. The similarities were so strong that it would have required a fanciful coincidence for Little not to be guilty of rape again.

Mother ordered to pay half of father’s legal costs

Posted on Categories Family lawTags , , , Leave a comment on Mother ordered to pay half of father’s legal costs

In a 2014 case, the Family Court of Australia awarded legal costs against a mother in a decision that sits as an exception to the usual mantra of family law court costs.

Legal advice

The Facts

The father was awarded custody and sole parental responsibility for the children of his relationship with his former wife, Ms Alexander, who had since remarried to a registered sexual offender. The mother was ordered to spend time with the children on alternate weekends.

The father had expended several thousands of dollars in legal fees over a period of approximately 24 months, while the mother had been self-represented throughout the trial.

Her Honour Justice Macmillan heard written submissions from the parties as to costs, and the Father applied for the Mother to pay his costs incidental to the trial in the sum of $45,587.35. The Mother opposed the making of such an order in lengthy written submissions.

Relevant Law

Section 117(1) of the Family Law Act 1975 (Cth) (‘the Act’) provides that each party to family law proceedings bears his or her own legal costs.

However, the court has a discretion in the application of section 117(1), and section 117(2) of the Act additionally provides that if ‘the court is of opinion that there are circumstances that justify it in doing so, the court may … make such order as to costs … as the court considers just.’

There are a number of factors that the court must consider under the Act when making a costs order in family law proceedings.

Section 117(2A) provides:

“(2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a)  the financial circumstances of each of the parties to the proceedings;

(b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)  such other matters as the court considers relevant.”

In the case of I and I (No 2) (1995) 125 FLR 332, the Full Court specified that these considerations ‘must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.’

Family Court Decision

Macmillan J found that the circumstances of the case did justify the making of an order for costs.

Firstly, Her Honour determined that the financial circumstances of the parties (consideration (a)) were neither in favour nor against the making of a costs order, however the financial circumstances were relevant when it came to the quantum of the costs order.

The Mother was found to have less weekly income than the Father, though the Father was found to have higher reasonable costs of living.

Secondly, Macmillan J further found that the conduct of the parties (consideration (c)) was severely detrimental to the Mother’s case opposing the costs orders.

Her Honour found clear instances of the Mother and her new partner misleading the court and at worst, being ‘deliberately untruthful’ during cross-examination. The Mother was found to have known that the affidavit of her new partner contained false evidence, and Her Honour dismissed the submission that her misleading conduct was excusable by being self-represented.

Thirdly, Her Honour identified that the Mother was wholly unsuccessful in the final orders of the proceedings, and this was detrimental to her case opposing a costs order (consideration (e)). On the two issues that Her Honour decided, the Mother was found to be equally unsuccessful in both, namely, who the children should live with (decided in favour of the Father) and what time, if any, the children should spend with the Mother’s new husband (determined children should have no contact).

Fourthly, Her Honour identified that the Father had made a written offer (consideration (f)) and such written offer was broadly consistent with the recommendations contained in the family consultant’s report.

Fifth and finally, Her Honour considered relevant the fact that the proceedings were necessitated by the Mother’s failure to disclose to the Father that her new husband was a registered sexual offender (consideration (g)). The Mother’s tepid awareness of the significance of the offences and her noted prioritisation of her new husband over her children was of further considered relevance.

On these considerations, Macmillan J ordered costs against the Mother –  in doing so diverting from the general rule that each party bear their own costs.

However, while the Father’s legal costs were determined to be reasonable by Macmillan J, Her Honour took into consideration the discrepancy in financial circumstances between the parties (as previously discussed), and instead ordered that the Mother pay half of the Father’s reasonable costs.

Her Honour stated that (at paragraph 48):

“Although an order for costs in the sum of $45,587.35 or for that matter a lesser sum would place a significant financial burden upon the mother, I am however also mindful of the fact that the father has been put to significant expense in order to do what he considered was necessary to protect and advance the welfare of [his children], a course which the outcome of the case supports. This leads me to conclude that the father should be compensated for at least some of the costs he has incurred in doing so.”

Conclusion

This case illustrates a number of fundamental lessons to be learned when litigating childrens issues.

Firstly, it is likely that had the Mother been legally represented throughout the dispute and at the trial that a number of the problematic observations from Macmillan J could have been avoided. The costs of litigating children issues can be very high; however, this case demonstrates that prudent spending on legal advice and representation in the early stages of a proceeding can pay dividends during the later stages and can potentially avoid paying a significant amount in fees or costs later.

Secondly, while the chances of being ordered to pay the other parties costs are often remote, it is important to remember that the judge considers a broad range of factors and issues in deciding cases, and small factors can weigh up in the mind of a judge. Litigation should be conducted in an impeccable and forthcoming manner to maximise the beneficial outcomes from the process. The Father’s conduct in attempting to settle the matter by written offer creates a stark contrast between his case and his merits and the Mother’s misleading, deceptive, evasive and ultimately unsuccessful conduct at trial.

Thirdly, the general rule that each party bears its own costs is indicative of the fact that the family courts and jurisdiction, particularly when it comes to childrens issues, are not courts of retributive justice. In ordering that the Mother pay half of the Father’s legal expenses, Macmillan J highlighted the necessary expenses incurred by the Father to protect and advance the welfare of the children. This case is yet another reminder that the court process should not be utilised to litigate personal qualms, and that the best interests of the children are always paramount in childrens issues – even when it comes to costs.

Non party costs order against company director upheld on appeal

Posted on Categories civil litigationTags , , , Leave a comment on Non party costs order against company director upheld on appeal

A recent Court of Appeal decision has upheld the decision of a District Court judge to impose a costs order against the director of a company that had been placed into liquidation five days after the close of evidence of a trial.

resource

The facts

At all material times Geoffrey Murphy was the sole director and ‘controlling mind’ of the defendant Collhart Investments Pty Ltd, formerly known as JM Kelly (Project Builders) Pty Ltd in civil proceedings in the District Court. The Plaintiff in that civil action was Mackay Labour Hire Pty Ltd, and it was suing for $288,242.54 for labour hire provided under various contracts. The defendant had also countersued for moneys it said had been paid to the plaintiff under a mistake of law.

The trial commenced on 13 June 2016 and when the evidence closed on 15 June 2016 the primary judge adjourned for submissions. On 20 June 2016, only 5 days later, Murphy placed the defendant into voluntary administration. After learning of this in a Rockhampton newspaper, the plaintiff brought an application for costs against Murphy personally.

Eventually, after the plaintiff was invited to provide evidence of the defendant’s insolvency and Murphy filed an affidavit, the primary judge on 2 May 2017 ordered costs incurred from 17 March 2016 (the date the defendant ceased trading) against Murphy on the standard basis. Behind that decision were various findings by the primary judge, including that “the defendant was insolvent for a significant time before the trial”, and that Murphy had failed to notify the plaintiff of this. Murphy appealed the costs decision.

Relevant law

By way of background, a company is a legal entity which is separate from its owners and directors, who are normally personally protected from the company’s liabilities:  see Salomon v A Salomon & Co Ltd [1896] UKHL 1, [1897] AC 22.

Courts are traditionally vested with an unfettered discretion as to the award of costs including costs against a non-party: see for instance Bischof v Adams [1992] VicRp 61; [1992] 2 VR 198 at 203. However, the decision to make an order for costs against a nonparty is rare. In Knight v FP Special Assets Ltd (1992) 174 CLR 178, a High Court case, Mason CJ and Deane J wrote that:

“For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party… That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.”

The presumption of continuance is an evidentiary legal principle that holds that a state of affairs has not substantially changed from one time to another unless there is evidence to the contrary. It has been described as “no more than a convenient way of describing a process of logical reasoning involving the drawing of inferences from established facts” in R v Noonan [2002] NSWCCA 46 (28 February 2002).

Court of Appeal decision

There were numerous arguments and grounds of appeal. Philippides JA wrote the leading judgment and Fraser JA and Boddice J concurred.

Murphy argued that the statutory demand issued on the defendant in May 2016 without evidence of whether it had been paid could not be used to make a finding that the defendant was insolvent. However, Philippides JA said that this was not how the primary judge used the statutory demand in her reasons.

A challenge was made on the primary judge’s reliance on a form 509 listing the defendant’s assets and liabilities and their worth. The Court of Appeal rejected an argument that this form did not show that the defendant’s liabilities well exceeded its assets.

Murphy argued against the primary judge’s finding that various deeds had the effect of “transferring the productive resources and contracts of the defendant to a related company”. The Court of Appeal held that Murphy had failed to raise any evidence before the primary judge rebutting such a conclusion.

Murphy argued that the primary judge had erred by employing a “balance sheet” insolvency approach before concluding that the defendant was “hopelessly insolvent”, and failed to also consider the “cash flow test”, which considers the viability of a company’s business, such as meeting its present demands and debts as a going concern.  The Court of Appeal held that this argument may have had some force if evidence in support of it had been filed in the District Court. The Court of Appeal further observed that the form 509 “indicated a deeply unsustainable situation” and contradicted Murphy’s submission that there was nothing to suggest the defendant’s business was suffering.

Murphy also attacked the primary judge’s use of the presumption of continuance to conclude that the defendant had been insolvent for months prior to its being placed into liquidation, contending that the defendant’s position had changed in the days leading up to its liquidation. The Court of Appeal rejected this submission, concluding that the primary judge “had sufficient evidence to support a finding of insolvency as at 20 June 2016 and for a period of up to three months before the defendant ceased trading on 17 March 2016”.

Murphy argued that the primary judge had misapplied the test in Knight (supra) as she failed to address Murphy’s interest and involvement in the litigation. However, the Court of Appeal noted there was significant evidence of Murphy’s involvement in the matter as the defendant’s sole director, and held that it was open for the primary judge to find that Murphy had allowed the litigation and trial to go on.

As a result, it was held that it was open for the primary judge to make the findings and decision she did and so the appeal was unanimously dismissed with costs.

Conclusion

There are a number of lessons to be drawn from this case.

Firstly, directors of insolvent or heavily indebted corporations should not pursue litigation through their companies and then expect that the subsequent liquidation of the company will absolve them of further concerns. This case shows that there is recourse against the directors of companies for parties that incur legal costs as a result of the pursuit of such litigation.

Second, if a company is suing or being (or about to be) sued and may be insolvent, it would be prudent to disclose its financial position at the outset so that the other party is aware of the position and does not incur additional costs it would otherwise choose not to. In this case, it is quite possible the defendant would never have been sued if the plaintiff had known of its financial position.

Third, as any insolvency lawyer would know, the decision to wind up a company is one that should not be taken lightly, as there can be a number of unintended consequences that arise from such a decision.  Legal advice should be sought before placing a company in liquidation.

Finally, it is always important to put all the evidence in support in the first instance, as an appeals court is unlikely to admit further evidence that could have been adduced at first instance.  Some of Murphy’s arguments centred on evidence that could have assisted if produced in the District Court.

12 common misperceptions of family law clients

Posted on Categories Evidence, Family lawTags , , , , 1 Comment on 12 common misperceptions of family law clients

“Oh would some power the gift give us, To see ourselves as others see us” – Robert Burns. 

seperation-blog

 

“Oh would some power the gift give us, To see ourselves as others see us” – Robert Burns.

 
In any area of law, a client’s perceptions of matters related to their case are often inaccurate. This is partly because clients don’t have the benefit of the knowledge that comes from experience in such matters. Part of a solicitor’s job is to educate a client about the process, the substantive law and the like. As a result, it is prudent to manage the expectations of clients and after every significant event ask the client whether they understood what has happened, and listen their understanding so that one can ascertain their perceptions.

In family law, a client’s perceptions are further clouded by their emotions. Many clients’ perceptions of the situation are completely twisted, because to put it bluntly their emotions blind them from actuality. As a result, what a family law client believes to be the case often is not the case at all. And many clients resist being told (and even resent) someone else telling them that their perceptions are inaccurate.
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Solicitor struck off on appeal for corrupt payment

Posted on Categories Criminal law, Professional disciplineLeave a comment on Solicitor struck off on appeal for corrupt payment

The Queensland Court of Appeal has recently determined that a solicitor who made a corrupt payment in 2002 is permanently unfit to practice and should be struck off.

shand

The facts

Shand had been admitted as a solicitor in 1975 and practised full time from 1975 until 1997, when he became the chief executive officer of a company called Jellinbah Resources Pty Ltd. Between 1977 and 1997 he was a partner in three major law firms and acted for a wide range of clients. His practice focused initially on banking and finance, and later work for large corporate and government bodies in large scale commercial transactions including property, rural matters, hotels and mining.

In 2002, as Director of Jellinbah and on the instructions of a businessman named Jim Gorman, Shand caused an amount of $60,000 to be paid to Mr Gordon Nuttall, the then Minister for Mines in the Queensland Government.

On 1 April 2011, Shand was convicted by a jury of making a corrupt payment to a Minister of the Crown contrary to section 442BA of the Criminal Code (Qld). Shand had previously declined an offer to assist prosecutors against Nuttall in return for being spared prosecution. Shand was sentenced to 15 months imprisonment to be suspended after serving 4 months.

In an affidavit, Shand said that he had learnt an extremely painful and publicly humiliating lesson, which had taken a heavy toll on him and his family. He said that he was very remorseful and he would never engage in similar conduct again. He also said he had no intention of ever engaging in legal practice again.
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Liberty Victoria’s Orwellian Voltaire award

Posted on Categories Human rightsTags , , , Leave a comment on Liberty Victoria’s Orwellian Voltaire award

“War is peace / freedom is slavery [and] ignorance is strength” was the grand party slogan in George Orwell’s 1984.

A more recent example of doublethink involves the bizarre choices by Liberty Victoria for its Voltaire Awards.

Yassmin

“War is peace / freedom is slavery [and] ignorance is strength” was the grand party slogan in 1984, George Orwell’s dystopian novel about a totalitarian society characterised by omnipresent surveillance and the policing of thought. The slogan itself is a famous example of doublethink: the process of accepting opposing and contradictory beliefs.

A more recent example of doublethink involves the bizarre choices by Liberty Victoria for its Voltaire Awards.
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Employers & Mine Operator liable for worker’s injuries after work

Posted on Categories Negligence, Personal InjuryTags , , , Leave a comment on Employers & Mine Operator liable for worker’s injuries after work

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It is common for workers in the mining industry to work long hours during long shifts, and to perform many such shifts in a short period of time. Exhaustion is therefore a real safety risk.

In this case, the Plaintiff Harold Kerle had been employed as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland and was severely injured after work in a one vehicle accident on his way home.

This case shows that the duty of care owed by employers and others is not always confined to the work hours or the place of work.

resource

 

The facts

Harold Kerle had completed four consecutive 12 hours shifts at the Norwich Park Mine. He made the fateful decision to commence his journey home at about 6.30am on the morning of 30 October 2008, moments after he had finished his final shift. He lived in Monto, a five hour 430 kilometre drive away.

Shortly before 10am, Kerle crashed his car into a concrete wall after veering onto the right hand side of the road and colliding at high speed on an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. Kerle sustained significant injuries, including a brain injury and fractures of his ankle, nose and skull. Kerle had no memory of the accident or the events leading up to it.

Alleging the accident was caused by fatigue, Kerle sued his employer Axial HR Pty Ltd (“Axial”), his host employer, HMP Constructions Pty Ltd (“HMP”) and the operator of the Norwich Park Mine, BM Alliance Coal Operations Pty Ltd (“BMA”). Continue reading “Employers & Mine Operator liable for worker’s injuries after work”

Failure to appear conviction quashed on appeal

Posted on Categories Criminal law, Evidence, LibertyTags , , , , , , Leave a comment on Failure to appear conviction quashed on appeal

It is a criminal offence for a Defendant in criminal proceedings to fail to appear in court unless they have a reasonable excuse to do so. A recent case which resulted in an acquittal of such a charge sheds light on the meaning of reasonable excuse for the purposes of s33 of the Bail Act 1980 (Qld).

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