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Fiji Islands - FLR Volume 14 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1968
Volume 14This volume may be cited as “14 F.L.R.”
Editor:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.)
Barrister-at-law, Judge of the Fiji Court of AppealPrice: $10.00
DIGEST AND INDEX
PAGE
AGENCY
See Tort – vicarious liability Contract
AGRICULTURE
Agricultural produce – assignment of proceeds by Fijian – validity – Agricultural Produce (Authorities by Fijians) Ordinance (Cap.205 – 1967) ss. 2, 3.
113
APPEAL
Civil appeal – death caused by negligent driving of two motor vehicles – apportionment of degrees of blame – variation of apportionment by appellate court.
207
Civil appeal –several defendants – submission of no case to answer by one rejected – evidence called by others – appeal to be decided on whole of evidence.
188
Criminal appeal – appeal by Crown against acquittal in Magistrate’s Court – questions of fact – Penal Code (Cap. 11-1967) s.302a.
256
Criminal appeal – driving under influence of drink – disqualification – application for removal – no appeal lies from refusal of application – Traffic Ordinance 1965 (later Cap.152 – 1967) ss. 29 (1)(a), 29(2), 30(3), 39(1) (2) – Magistrates’ Courts Ordinance (Cap. 10 – 1967) ss.36, 41 – Penal Code (Cap. 8 – 1955) s.38 – Criminal Procedure Code (Cap. 14 – 1967) ss.43(2), 118, 157, 206, 289 (1) – Criminal Procedure Code 1945 (Tranganyika) ss. 52, 132, 210, 174, 312 – Penal Code (Tanganyika) s.38.
161
Criminal appeal – powers of Supreme Court in appellate jurisdiction – appeal from Magistrate’s Court – conviction of dangerous driving and order for disqualification in the Supreme Court – Criminal Procedure Code (Cap.9 – 1955) s.326 (1).
109
Divorce – summary procedure – evidence taken by magistrate – credibility of witnesses – proceedings in Supreme Court and Court of Appeal based on magisterial record – Court of Appeal is as good a position as Supreme court to assess credibility – power of Court of Appeal to direct decree – Divorce of Appeal to direct decree – Divorce (Summary Jurisdiction) Ordinance (Cap. 29-1955) ss.10, 12 Court of Appeal Ordinance (Cap.8 – 1967) s.13.
101
Driving licence – disqualification order – variation in right of appeal according to whether order made in Supreme Court or Magistrate’s Court – Traffic Ordinance 1965 ss. 29 (2), 38 (1) – Court of Appeal Ordinance (Cap.3 – 1955) s.17A.
109
Finding by magistrate based on evaluation of witness’ testimony – not disturbed on appeal in absence of cogent reasons.
157
Findings of fact by trial judge – open to appeal court to draw own inferences from facts found – negligent driving.
200
Insufficient finds by trial judge on credibility of witnesses – position of appeal court – new trial.
147
BANKRUPTCY
Application by Official Receiver to declare transfer void under ss.44 (1) and 46 of Bankruptcy Ordinance (Cap.37 – 1955) – decided by court on ground not relied upon or argued – breach of principle that a party must know the case he has to answer.
196
BILL OF SALE
Registration not renewed – action on personal covenant – meaning of “fraudulent and void” in s.7 of Bills of Sale Ordinance – limited construction to avoid injustice – personal covenant not affected – Bills of Sale Ordinance (Cap.193 – 1955) ss.2, 3, 7, 8, 11, 14, 15 – Bills of Sale Act 1854 (Imperial) – Bills of Sale Act 1866 (Imperial) – Debtors Act 1869 (Imperial ss.26, 27 – Bills of Sale Act 1878 (Imperial) ss.8, 11, 14 – Bills of Sale (Amendment) Act 1882 (Imperial) ss.4, 5, 8, 9, 12 – Bills of Sale Ordinance 1879 s.20 – Fraudulent Conveyances Act 1571 (Imperial).
31
CONTRACT
Agency – authority to receive payment – payment made by open cheque – clear intimation to person paying required if agent’s authority limited to receiving payment in a particular form.
157
COURTS
Court of Appeal – earlier decision of Court of Appeal – whether binding – stare decisis principle – less stringent approach preferable – circumstances justifying refusal to follow earlier decision.
31
CRIMINAL LAW
Charge
Larceny – naming of owner of property stolen not essential – if owner named his ownership must be proved – Criminal Procedure Code (Cap. 14 – 1867) s.123 ( c ) (i).
248
Particulars of Offence – omission of words “with intent to do some grievous harm” – charge defective but not a nullity – Penal Code (Cap. 8-1955) ss.120, 123 (a) (i) (ii) (iii), 325 (1).
55
Confession
Police procedure – “confrontation” of persons interviewed by calling suspect to their presence – admissibility of confession – admission by judge – function of assessors – probative value – direction by judge to assessors – relevance of “fear” to admissibility.
73
Trial within a trial – whether necessary when factum and not voluntariness is the issue.
139
Evidence and proof
Birth certificate – proof of certified copy – maxim “Omnia praesumuntur rite esse acta” – Births, Deaths and Marriages Ordinance (Cap.133-1955) ss.9, 32 – Interpretation Ordinance 1967, s. 38 – Penal Code (Cap. 8 – 1955) ss. 144, 147 (1) (a).
25
Common intention – no physical participation by accused in attack – statements by accused – whether justified finding of common intention to degree requisite for conviction of murder - Judges’ Rules – scope of Rule 4 – Penal Code (Cap. 11-1967) ss.21, 22.
235
Confession – trial within a trial – whether necessary when factum and not voluntariness is the issue.
139
Dying declaration – state of mind of deceased – gravity of wounds – completeness of statement – admissibility.
241
Evidence of persons serving sentences as convicted prisoners – summing up – warning to assessors by trial judge.
177
Investigation of crime by police – “mass” investigation – whether procedure unfair.
73
Using abusive words in a public place – whether words might occasion a breach of the peach – whether objective or subjective test to be applied by court – dangerous driving – objective test to be applied – Penal Code (Cap. 8-1955) s.199 ( r ) - Criminal Procedure Code (Cap. 9-1955) s. 325 – Traffic Ordinance 1965, s.38 (1).
6
Witnesses – previous inconsistent statements by – conflict of evidence between witnesses – admissibility and weight – direction to assessors.
218
Judgement
No impediment to matters affecting conviction and those affecting sentence being dealt with at different stages – Criminal Procedure Code (Cap. 14 – 1967) s. 154 (1) (2) – Penal Code (Cap.11 – 1967) ss.279 (b), 288, 366 (a) – Court of Appeal Ordinance (Cap.8-1967) s.22 (1) (6).
222
Plea
Amendment of charge in Magistrate’s Court – additional counts – necessity of taking new plea on original counts – effect of neglect to take – proceedings a nullity – application of “proviso” inappropriate – Criminal Procedure Code (Cap. 14-1967) ss.204, 300 (1).
93
Autrefois acquit – larceny of cattle – acquittal at first trial on ground property in cattle laid in wrong person – second trial – charge laying property in correct person – whether conviction possible at first trial – incumbent upon prosecution to establish ownership if owner named in charge – Penal Code (Cap.8-1955) s.301 – Penal Code (Cap.11-1967) ss.291 (2) ( c ), 307 – Criminal Procedure Code (Cap. 14-1967) ss. 123 ( c ) (i), 124, 204, 300 (1) – Criminal Procedure Act 1851 (Imperial) s. 1 – Criminal Appeal Act 1912 (New South Wales) s.6 (1) – Constitution of Fiji (Fiji (Constitution) Order 1966, Sch. 2) s. 8 (5).
248
Practice and Procedure
Amendment of charge in Magistrate’s Court – addition of alternative counts – on amendment plea taken to new counts only – whether new plea to original counts necessary – whether application of “proviso” appropriate when new plea not taken – Penal Code (Cap. 8-1955) s. 374 (a) – Criminal Procedure Code (Cap.14 – 1967) ss.120, 121, 123, 204, 300 (1) – Criminal Procedure Ordinance (Nigeria – Cap.43) s. 164 (4).
93
Amendment of charge – necessity for fresh plea – whether reason for amendment is that charge was defective – Criminal Procedure Code (Cap. 14 –1967) ss.120, 204 (1) (2) (3), 300 (1) –Indictments Act 1915 (Imperial) ss.3, 5.
222
Amendment of charge – plea to altered charge not taken – fatal and incurable defect – Criminal Procedure Code (Cap. 9-1955) ss.198 (1) (2) (3), 204 (1) (2) – Traffic (Construction and Use) Regulations 1955, reg. 23 (2) – Traffic Regulation 1967, regs. 78, 122, 138 (d) – Traffic Ordinance 1965, ss.8, 85.
6
Confession – all facts relevant to admissibility at large for assessors in considering question of probative value.
73
Dangerous driving – careless driving a minor cognate offence in relation thereto – court’s power to convict – Criminal Procedure Code (Cap.9-1955) s.164 (1) (2) – Traffic Ordinance 1965, ss.36, 38.
6
Evidence of confession – no objection by defence counsel to admissibility – cross-examination suggesting repudiation and threats by police – necessity for trial within a trial.
139
Minor cognate offence – accused charged with “Acts Intended to Cause Grievous Harm” – convicted of “Unlawfully Doing Grievous Harm” – unnecessary to enter formal acquittal on original charge – Penal Code (Cap. 8-1995) ss.250 (a), 253 – Criminal Procedure Code (Cap. 9-1955) ss.155, 164 (1) (2), 206.
55
Statement by accused – practice of having accused interviewed by Justice of the Peace after making statement – purpose of interview – inherent dangers.
Principles of Criminal Liability
Criminal intimidation – proof of intent to create alarm essential – unnecessary to prove actual creation of alarm – Penal Code (Cap. 11-1967) s.366 (a).
222
Dangerous driving – using abusive words in public place – nature of tests to be applied by court in determining whether charge proved – Penal Code (Cap.8 – 1955) s.199 ( r ) - Traffic Ordinance 1965, s. 38 (1).
6
Mens rea – murder – three participants – attack on deceased followed by throwing of body into stream – cause of death not proved – possibility of death by drowning – indivisible course of conduct by accused – no necessity for pre-arranged plan – liability.
73
Provocation
Onus of proof – adequacy of direction in summing up.
192
Sentence
Default in complying with demand of Commissioner of Inland Revenue – fine – consideration relevant to assessment – difference between lenient and nominal penalty – Income Tax Ordinance (Cap.176-1967) ss.61, 100 (1).
245
Fine – first offender – means of accused to be considered – maximum penalty reserved for worst offenders – plea to lesser offence accepted – no opportunity to address in mitigation – Traffic Ordinance 1965, ss.37, 85.
3
Indecent practice between males – recent trends in sentencing – consistency – Penal Code (Cap. 8 – 1955) s.167.
1
Summing up
Evidence of witnesses serving sentences of imprisonment – warning to assessors – Penal Code (Cap. 8-1955) s.271.
177
No verbatim record – judge’s note – provocation the only defence relied upon – direction as to onus of proof on issue of provocation – whether adequate.
192
Traffic Offences
Careless driving – failure by prosecution to call evidence to prove the vehicle number alleged in the particulars of the charge – no presumption as to number in favour of the prosecution – absence of proof of number not a fatal defect – Traffic Ordinance 1965, ss.37, 85 – Traffic Ordinance (Cap.152-1967) ss.2, 37.
67
Dangerous driving – driving onto pedestrian crossing through red light – conviction and disqualification in Supreme Court on appeal from Magistrate’s Court – Traffic Ordinance 1965, ss. 29 (2), 38 (1) – Criminal Procedure Code (Cap. 9-1955) s.325 (1).
109
Disqualification – application for removal – no appeal lies from refusal of application – Traffic Ordinance 1965 (later Cap.152-1967) ss.29 (1) (a), 29 (2), 30 (3), 39 (1) (2) –Magistrates’ Courts Ordinance (Cap.10-1967) ss.36, 41-Penal Code (Cap.8-1955) s.38 – Criminal Procedure Code (Cap.14-1967) ss.43 (2), 118, 157, 206, 289 (1) – Criminal Procedure Code 1945 (Tanganyika) ss.52, 132, 210, 174, 312 – Penal Code (Tanganyika) s.38.
161
Disqualification – application for removal – questions for consideration – whether “special reasons” existed at time of disqualification is one relevant circumstance – Traffic Ordinance 1965 (later Cap. 152 – 1967) ss.29 (1) (a), 29 (2), 30 (3).
161
Road – failure to prove accident occurred on specific road named in charge – proclamation of public road – judicial notice of road and location thereof – Road Ordinance (Cap. 151-1967) – Roads and Rail Traffic Regulations (Cap.151-1967).
67
Trial
Probation Officer’s report on background and antecedents of accused – dangers in practice of obtaining report before adjudication – Penal Code (Cap. 11-1967) s. 302 (a).
256
Witnesses
Conflict between – previous inconsistent statements – appropriate direction to assessors.
218
Persons serving sentences of imprisonment – summing up.
177
General
Wrongful confinement – meaning of “confinement” – Penal Code (Cap.11-1967) s.288 – Penal Code (India) s.340.
222
CROP LIEN
Second crop lien executed pursuant to covenant in first – crops harvested after expiry of first and before execution of second – proceeds not subject to lien.
Nanuku-Wailevu Land-Purchase Co-operative Society Ltd. v. Burns Philp (South Sea) Co. Ltd.
123
DAMAGES
Death caused by negligent driving – apportionment of degrees of blame attachable to driver of each motor vehicle – variation of apportionment by appellate court.
207
Personal injury – negligence – general damages – loss of earning capacity – damages awarded in respect thereof excessive – compulsory third party insurance – no bearing on damages – Motor Vehicles (Third Party Insurance) Ordinance (Cap.236-1955).
132
DEFAMATION
See Libel
DIVORCE
Discretion – question of exercise of discretion does not arise unless and until petitioner proves his case.
101
Evidence and proof – proof of non-access – standard of proof required – evidence of spouse admissible to prove or disprove marital intercourse – Law Reform (Matrimonial Proceedings) Ordinance (Cap. 30 – 1955) s. 3(1).
101
Summary procedure – evidence taken by magistrate – magistrate in best position to assess credibility of witnesses – Divorce (Summary Jurisdiction) Ordinance (Cap.29-1955) ss.10, 12 – Court of Appeal Ordinance (Cap. 8-1967) ss.12 (1) (b), 13.
101
ESTOPPEL
Principle “no estoppel against a statute” – scope and object of legislation – assignment of proceeds of cane crop by Fijian – approval by authorised person – neglect of mandatory conditions precedent – validity – Agricultural Produce (Authorities by Fijians) Ordinance (Cap.205-1967) ss.2, 3.
113
EVIDENCE AND PROOF
See also Moneylending
Divorce – non-access – standard of proof required – evidence taken by magistrate – assessment of credibility – Divorce (Summary Jurisdiction) Ordinance (Cap. 29-1955) ss. 10, 12.
101
Mode of proof of Ordinance and subsidiary legislation – judicial notice – not conditional upon production of Gazette at hearing – Interpretation Ordinance 1967, ss. 4, 21, 33, 63 – Interpretation and General Clauses Ordinance (Cap. 1-1955) ss.3, 9, 22 (1) – Documentary Evidence Act 1868 (Imperial) ss.2, 3 – Evidence Act 1905-1934 (Commonwealth of Australia) s.5.
6
Mode of proof of Ordinances and subsidiary legislation – separate mandatory requirements of sections 4 and 21 of Interpretation Ordinance 1967, ss.2 (1), 4, 21 – Revised Edition of the Laws Ordinance 1955.
109
FIJIAN
Agricultural produce – protected status under Ordinance – Agricultural Produce (Authorities by Fijians) Ordinance (Cap.205-1967) ss.2, 3.
113
INCOME TAX
Default in complying with demand of Commissioner under section 61 of the Income Tax Ordinance (Cap.176-1967) – penalty – considerations relevant to assessment of appropriate fine.
245
INCORPORATED SOCIETIES
Co-operative society – money owning by member to society for price of shares – agential authority by member to sugar miller for payment of cane proceeds to society – statutory charge in favour of co-operative society – charge limited to crops etc. raised purchased or produced from a loan by the society – Co-operative Societies Ordinance (Cap.219-1955) s.14 (1) – Co-operative Societies Ordinance (Cap. 219-1967) s.15 – Co-operative Societies (Amendment) Ordinance 1967.
Nanuku-Wailevu Land-Purchase Co-op. Soc’y. Ltd. v. Burns Philp (South Sea) Co. Ltd.
123
INSURANCE
Motor vehicles – third party – vicarious liability of owner for acts of driver not enlarged by Motor Vehicles (Third Party Insurance) Ordinance (Cap.153-1967).
64
Third party risks – negligent driving – requirement of legislation as to amount of insurance does not limit damages claimable – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 236-1955).
132
INTERPLEADER
Moneys in court – claim based on statutory charge unfounded – refusal by court to adjudicate upon effectiveness of agential authority not made basis of claim.
Nanuku-Wailevu Land-Purchase Co-op. Soc’y. Ltd. v. Burns Philp (South Sea) Co. Ltd.
123
INTERPRETATION
Bills of sale – construction of Ordinance – limited interpretation of general words of avoidance – construction to avoid injustice – meaning of “fraudulent and void” in section 7 of Bills of Sale Ordinance – possible constructions of Ordinance – whether personal covenant rendered void by failure to renew registration – Bills of Sale Ordinance (Cap.193-1955) ss.2, 3, 7, 8, 11, 14, 15 – bills of Sale Ordinance 1879, s.20 – Bills of Sale Act 1854 (Imperial) – Bills of Sale Act 1866 (Imperial) – Debtors Act 1869 (Imperial) ss.26, 27 – Bills of Sale Act 1878 (Imperial) ss.8, 11, 14 – Bills of Sale (Amendment) Act 1882 (Imperial ss. 4, 5, 8, 9, 12 – Fraudulent Conveyances Act 1571 (Imperial).
31
Criminal law – meaning of expression “altered charge” – Criminal Procedure Code (Cap. 14 – 1967) s.204 (1).
93
Interpretation Ordinance 1967 – construction of section 4 – courts – method of proof of Ordinances and subsidiary legislation – judicial notice – Interpretation Ordinance 1967, ss.4, 21, 33, 63 – Interpretation and General Clauses Ordinance (Cap. 1 – 1955) ss.3, 9, 22 (1).
6
Interpretation Ordinance 1967 – construction of sections 4 and 21 – requirement that judicial notice of legislation be taken separate and unconditional.
109
Ordinance – rating – requirements as to notice – subject matter and object of legislation – Townships Ordinance (Cap. 79-1955) ss. 10 (5) (6), 11, 12 (1) (2) (4) (5) (6), 13 – Townships (Amendment) Ordinance 1965 – Townships Ordinance (Cap. 107-1967).
169
Ordinance – statutory charge created by section 14 (1) (a) of Co-operative Societies Ordinance (Cap.219-1955) – construction of section – Co-operative Societies Ordinance (Cap. 219-1967) s.15.
Nanuku-Wailevu Land-Purchase Co-op. Socy, Ltd. v. Burns Philp (South Sea) Co. Ltd.
123
Ordinance – whether imperative or directory – scope and object of legislation – Agricultural Produce (Authorities by Fijians) Ordinance (Cap.195-1955; Cap.205-1967) ss. 2, 2 ( c ), 3, 3 (3) – Agricultural Produce (Authorities by Natives) (Amendment) Ordinance 1965 – Court of Appeal Ordinance (Cap. 8-1967) s.12 – Bills of Sale Ordinance (Cap.202-1967) – Civil Code of Lower Canada, Article 2590 – concessions Ordinance (Laws of the Gold Coast (1951) Cap. 136) s.32 (2).
113
LANDLORD AND TENANT
Land under Land (Transfer and Registration) Ordinance – entry under unregistered lease – unregistered leave operating as agreement to lease – estate or interest at common law – Land (Transfer and Registration) Ordinance (Cap. 136-1955) ss. 14, 25.
181
Native land – sublease – consent of Native Land Trust Board given conditionally – consent withdrawn on non-fulfilment of condition – dealing inoperative – recovery of possession by landlord by virtue of strength of own title – Native Land Trust Ordinance (Cap.115-1967) s.12.
259
Prescription – claim by adjoining owner – land leased to tenants – time does not run against landlord until expiration of tenancies – Real Property Limitation Act 1833 (Imperial) – Real Property Limitation Act 1874 (Imperial) s.2 – Supreme Court Ordinance (Cap. 4-1955) s.35.
181
LIBEL
Apology – reference to by judge – no payment into Court – whether reference permissible – Libel Act 1845 (Imperial) s.2.
213
Newspaper report – plaintiff’s name appearing therein – capable to being understood as referring to him – words in natural sense capable of libellous meaning – innuendo unnecessary.
213
LIMITATION OF ACTIONS
Land – adverse possession – requisites of proof – entry as trespasser unnecessary – area claimed to be proved with particularity – land claimed in occupation of tenants under unregistered agreements – time running against tenants but not owner of freehold – Real Property Limitation Act 1833 (Imperial) – Real Property Limitation Act 1874 (Imperial) s.2 – Supreme Court Ordinance (Cap. 4-1955) s. 35 – Land (Transfer and Registration) Ordinance (Cap.136-1955) ss. 14, 25, Part 9 – Suva (Subdivision of Land) By-laws (Cap. 78-1955).
181
LOCAL GOVERNMENT
Rating – township – notice that entries in rate-book completed and rate-book open for inspection – required on each occasion rate struck – non-compliance fundamental irregularity – requirement additional to notice of particulars of rate – Townships Ordinance (Cap.79-1955) ss. 10 (5), (6), 11, 12 (1) (2) (4) (5) (6), 13 – Townships Ordinance (Cap.107-1967).
169
MONEYLENDING
Burden of proof – proof of compliance with section 16 of Moneylenders Ordinance (Cap.207-1955) – section pleased in defence – Moneylenders Act 1927 (Imperial) s.6.
87
Promissory notes sole security – procedure required – authentication of copy by lender – positive act of authentication necessary – Moneylenders Ordinance (Cap. 207-1955) ss. 16 (1) (4), 18.
87
NATIVE LAND
Sublease – consent of Native Land Trust Board given conditionally – consent withdrawn on non-fulfilment of condition – dealing inoperative – Native Land Trust Ordinance (Cap.115-1967) s.12.
259
NEGLIGENCE
Damages for – apportionment of blame between two negligent drivers – variation of apportionment by appellate court.
207
Motor vehicle – injuries to passenger through overturning – cause of accident – nail in rear tyre – whether driver negligent – doctrine of res ipsa loquitur not applicable.
136
Motor vehicle – negligence of driver – open to appeal court to draw inferences based on facts as found by trial judge.
200
PRACTICE AND PROCEDURE
Application under Bankruptcy Ordinance – argument limited to sections of Ordinance – grounds argued rejected by court – application granted under statute 13 Eliz. 1, c.5 – breach of principle that a party must know case he has to answer – Bankruptcy Ordinance (Cap. 37-1955) ss.44 (1), 46, 97 (1) – (Fraudulent Conveyances) 13 Eliz. 1, c.5 (Imperial).
196
New trial – no sufficient finding on credibility of witnesses in the court below.
147
Several defendants – submissions of no case to answer by one only – ruling deferred until after evidence called by other defendants – Public Authorities Protection Ordinance (Cap.6-1955) s.2.
188
Statement of claim – struck out as against owner of motor vehicle where no basis for vicarious liability averred – owner’s vicarious liability not increased by Motor Vehicles (Third Party Insurance) Ordinance (Cap. 153-1967) s.6.
64
PRESCRIPTION
See Limitation of Actions
RATING
See Local Government
ROAD TRAFFIC
See Criminal Law – Traffic Offences Negligence
ROADS
See Criminal Law – Traffic Offences
STARE DECISIS
See Courts
TORTS
See also Negligence
Vicarious liability – motor vehicle driven by person other than owner – vicarious liability of owner not enlarged by Motor Vehicles (Third Party Insurance) Ordinance (Cap. 153-1967) – necessity for basis of liability of owner to be averred in statement of claim.
64
TRIAL
Judgment – witnesses – credibility – necessity for finding on credibility of witnesses in judgment – appeal court not in position to determine whether witnesses to be believed or not – new trial.
147
WORDS AND PHRASES
-“Altered charge”–Criminal Procedure Code (Cap.14-1967) s.204(1) (a).
98
-“Confinement” – Penal Code (Cap. 11-1967) s.366 (a).
225
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