George Pell appeal: defence says 13 reasons why abuse claim was ‘impossible’
Pell’s legal team lists the reasons why his abuse of boys “would have been impossible”.
George Pell has been in court trying to overturn multiple sex offence convictions. Pell’s barrister, Bret Walker, SC, argues Pell, 77, was wrongly sentenced to six years’ jail for assaulting two choirboys in 1996 and 1997 in St Patrick’s Cathedral, Melbourne. He is serving a minimum three years, eight months. The main ground of appeal is the claim the jury erred when it convicted him. Here’s how the day played out
• Cardinal Pell’s team says there are 13 reasons the abuse claims ‘are impossible’
Remy Varga 4.23pm: Let’s call it a day
Bret Walker, SC, for Cardinal Pell, has returned to wrap up today.
His final argument centres on the fact Pell was not arraigned in front of a jury panel.
That’s it folks. Please join us tomorrow when court resumes at 9.30am.
Remy Varga 4.19pm: Jury ‘may not have understood argument’
Ruth Shann, acting on behalf of Pell, says the jury’s verdict was a “serious miscarriage of justice”.
Ms Shann said the jury was drowned in volumes of evidence relating to an event that occurred 22 years ago within a 10-15 minute timeframe.
“This is quite a unique case in relation to the amount of evidence talking about something that happened 22 years ago,” she said.
“... there is a possibility the jury did not understand the force of our argument.”
Remy Varga 4.06pm: Change of lawyer
Ruth Shann, acting on behalf of Pell, has now taken the floor for the remaining 15 minutes of today’s appeal hearing.
Remy Varga 3.31pm: Robes in spotlight
Mr Walker is now discussing how Pell is said to have removed his robes during the attacks.
He said the master of ceremonies Monsignor Charles Portelli gave evidence it could not be lifted.
“[Portelli] made it clear the nature of the robing and its fastening was such that you just don’t go to the toilet, “ he said.
Justice Weinberg said this was addressed by the victim during the trial.
Mr Walker says this is further evidence of the “unstable” and “shifting” nature of the complainant’s account.
Remy Varga 3.19pm: A choirboy rebellion?
Mr Walker is now disputing that two choir boys would sneak off to break into the sacristy and says the two youths were unlikely to have been that rebellious.
“They’re not cats, they’re choirboys,” he said.
Remy Varga 2.35pm: ‘A broken ritual’
Mr Walker says any form of ritual broken should be memorable. “There are things that follow patterns in life,” he said. He says the appeal panel should consider a failure to recall a broken ritual as sufficient to insert reasonable doubt.
Remy Varga 2.20pm: Sacristy ‘not in use’
Bret Walker, SC, has kicked off the afternoon with a discussion of renovation of the sacristy.
Mr Walker says because the sacristy had been “shellacked over enthusiastically” during the reno and therefore was not being used for robing and disrobing at the time of the first assault.
It was also not in use at time of second assault in February 1997, the hearing is told.
Remy Varga 2.10pm: Victim’s family hits out
And we’re back from lunch.
Lawyers representing the second victim’s father say the fact the man denied he had been abused to his mother does not mean he was not abused.
“The argument we are hearing again today about our client’s son not telling anyone what Pell did to him holds little persuasion,” Lisa Flynn, Shine Lawyers Abuse Law Expert said in the statement.
“Having represented thousands of sex abuse victims, I can tell you that it is not uncommon for victims to wait decades before opening up about what happened to them, a lot even take it to their grave.”
Ms Flynn said victims of sexual abuse are often overwhelmed by shame and humiliation and are unable to disclose what happened to them.
“It is not unusual to deny abuse, particularly to parents,” she said. “Many survivors find it impossible to tell their parents, their beloved mum or dad.
Ms Flynn added victims often felt compelled to shield their parents.
“Sexual abuse victims commonly come forward to report abuse after their parents have passed away as they could not bear to see the devastating impact this would have on their parents.”
Ms Flynn said the appeal was making the second victim’s father “anxious”.
John Ferguson 2pm: Aces out in high-stakes battle
George Pell cut a weary, alert figure as a court full of sharpshooters debated his fate. Read more here
Tessa Akerman 1.40pm: ‘13 reasons why Pell is not guilty’
Cardinal George Pell’s appeal team says there are 13 reasons why his abuse of two choirboys in St Patrick’s Cathedral would have been impossible or should have returned a not-guilty verdict.
Today marks the first day of a two-day appeal against Pell’s conviction on five counts of child sex abuse dating back to 1996.
In submissions filed to the Victorian Court of Appeal, his legal team outlined alleged “impossibilities” in the case including the dates of the alleged assaults, Pell being alone in the sacristy only a few minutes after the end of mass, Pell being robed and alone in the sacristy after mass and the impossibility for two choir boys to be sexually assaulted by Pell in the sacristy after mass undetected.
“There was a significant body of evidence demonstrating, in various ways, that the offending not only did not occur but could not have occurred,” the written submission from Pell’s senior counsel Bret Walker said.
“This evidence constituted a catalogue of at least thirteen solid obstacles in the path of a conviction.
“No matter what view was taken of the complainant as a witness, it was simply not open to the jury to accept his word beyond reasonable doubt.”
Appearing this morning, Mr Walker told the appeal court “literally impossible” for the first episode of offending in the St Patrick’s Cathedral sacristy to have occurred.
The allegation was Pell abused two choir boys in the sacristy in 1996 after Sunday mass.
One of the boys gave evidence in Pell’s trial while the other died in 2014 and had denied being abused to his mother.
“I refer to a network of evidence … activities, rituals, practices, customary traditions … combine to render either literally impossible or so unlikely to leave no realistic the notion of these three persons … five to six minutes undisturbed,” Mr Walker said.
Mr Walker said the denial of abuse by the second boy before he died manifestly raised a reasonable doubt.
He also referred to the complainant’s account that Pell was in full ceremonial robes which he pulled aside to expose his penis.
“Incidental to that proposition are matters of physical improbability to the point of impossibility of the simple pulling aside of those robes in order to commit the alleged atrocious acts,” he said.
Mr Walker said Pell’s “fresh approach to mingling with congregants” after Sunday mass was an alibi and must also raise reasonable doubt “to put it mildly”.
“If he was at the western door then the law of physics means this is literally, logically impossible for the offending to have occurred,” he said.
Mr Walker described a second bout of offending when Pell grabbed the surviving choir boy in a crowded corridor as “bizarrely odd conduct”.
“No words, no aftermath … and no one saw anything and no one reported it,” he said.
Pell was jailed for six years by County Court chief Judge Peter Kidd in March after a jury found him guilty of one count of sexual penetration of a child under 16 and four counts of committing an indecent act with a child.
The Crown in its written submissions argued there was corroborative evidence to back the guilty verdict and that the complainant was credible.
“The evidence given by the complainant was not only plausible, it was credible, clear and entirely believable as is reflected in the jury’s verdict,” the Crown said.
“Any inconsistencies in the complainant’s evidence were of little moment and could not have been said to have impacted on his credibility in any material way. Where confronted with something that might be viewed as contrary to earlier evidence he’d given, the complainant readily made concessions where appropriate.”
The Crown argued in its submission that there was corroborative or supportive evidence and the assaults did occur.
“For instance, the complainant accurately described the layout of the Priests’ Sacristy — a room in which he had never been as far as he could recall,” the submission said.
“The ability of the complainant to so accurately describe the layout and wood panelling of the Priests’ Sacristy (including the alcove) — an area in which he could not recall having ever seen either before or after this event — was a significant aspect of the Crown case.
“It bespoke both truthfulness and reliability.
“Furthermore, the complainant’s knowledge that this was the area in which the sacramental wine had previously been stored, reinforced that he had been within the sacristy after mass.”
The court has adjourned for lunch.
Remy Varga 1.10pm: Barrister on the clock
The court has adjourned until 2pm. Chief Justice Anne Ferguson reminds Mr Walker he has until 4.15pm today to present the case for an appeal. “It will happen,” he said.
Remy Varga 1pm: Missing evidence ‘conduces doubt’
The appeal panel and Mr Walker are grappling with what recorded testimony tendered as evidence to a jury trial means for the appeal process.
The discussion is around the impact flesh and blood testimony has compared to watching a video account.
Mr Walker says it won’t factor into his argument but raises it as a consideration for future trials. “I’m not brave enough to suggest the law is different,” he says.
Mr Walker has returned to inconsistencies in the Crown’s case. “Missing evidence in its nature conduces reasonable doubt.”
John Ferguson 12.55pm: Tale of the tape
The court and Bret Walker, SC, have discussed the complexities of appeal courts analysing videotaped evidence. Video evidence is increasingly common in Victoria.
Remy Varga 12.40pm: Justice Maxwell weighs in
Court of Appeal president Chris Maxwell says it seems likely the jury considered the inconsistencies in the complainant’s account as it was put to them that he was either a “purposeful liar” or “naive fantasist” during the trial.
Remy Varga 12.20pm: Burden of proof ‘on Pell’
Mr Walker has returned to the concept of “forensic disadvantage”, which he says puts the burden of proof on the accused instead of the accuser.
“It is striking this is offending sought to be approved by the Crown and was accepted by the jury.”
Mr Walker says such a system where the burden of proof was reversed is “radically different” to Australia’s justice system and should be rejected.
Remy Varga 12pm: Victim’s account scrutinised
Bret Walker SC is now going over apparent inconsistencies in the complainant’s account, including the season and whether a choir rehearsal took place.
“If there’s a rehearsal … it’s inconsistent whether boys were being picked up by their parents at the time,” he says.
Remy Varga 11.45am: Appeals panel ‘not cherry picking'
Court of Appeal president Chris Maxwell has clarified that he, Chief Justice Anne Ferguson and Justice Mark Weinberg are not fact finding, which is the role of the jury.
“There’s no cherry picking or selective reviewing,” he says. “It is a task of putting ourselves as far as possible in the jury’s position.”
Mr Maxwell says the appeal will establish whether the jury should have experienced doubt on the basis of the evidence accepted at trial.
Remy Varga 11.30am: Cardinal’s counsel continues
And we’re back from an adjournment.
Mr Walker will now dissect judicial method and says the complainant’s testimony cannot be taken as proof beyond reasonable doubt despite the fact that “evidently the jury believed the complainant”.
Remy Varga 11.15am: Pell’s evidence ‘strong’
Mr Walker describes Pell’s evidence as “strong” and “undispelled” and again despairs over the fact Father Bob Egan was not approached during the police investigation into Pell.
“He obviously had very special attributes in terms of a person who could cast light on this thing,” he said.
The appeal bid has been adjourned for 15 minutes.
Remy Varga 11am: ‘Anxious consideration’
Mr Walker says if the second victim was alive and called as a witness, the Crown would have to put to a witness they were sexually abused despite their previous denial.
“The level of social responsibility to that thing would no doubt receive anxious consideration in Crown chambers,” he says.
Mr Walker then says these hypotheticals are not “window dressing”. “My point being … in the nature of this procedure is the absence of a witness who could have cast light on the reliability of the complainant’s account,” he says.
Remy Varga 10.45am: Barrister examines witness account
Mr Walker says generalised evidence on the behaviour of victims should be rejected. “You can’t lump onto me … your pseudo generalised stereotyping of victims.”
The mother of the second victim, who died a few years ago, said her son told her he had never been abused.
“It manifestly raises a reasonable doubt.”
Continuing on the mother’s account, Mr Walker brings the argument full circle, returning to the idea the Crown’s evidence casts doubt on their case.
“That’s the hallmark of something that raises a reasonable doubt.”
Remy Varga 10.40am: ‘What did Father Egan see’
Mr Walker is now attempting to cast doubt on the second account of sexual abuse.
He says Father Brian Egan was at all times near Pell at the time of the offending and should have been interviewed.
“Not being able to know what Father Egan would say about what he saw of him celebrating mass … raises and leaves a reasonable doubt concerning whether the complainants account accurately describing anything that has even happened.”
Tessa Akerman 10.35am: ‘Bizarrely odd conduct’
Mr Walker questions the prosecution’s acceptance of the complainant’s evidence.
“(The prosecution) went to the jury on the basis that the complainant’s account could not be accepted in all its detail,” he says.
He says the Crown, in the appeal, now says the complainant gave a credible and reliable account in all respects.
Mr Walker raises the second episode of abuse, which occurred in a crowded corridor. “When the archbishop, we put it, plunges into the procession and engages in bizarrely odd conduct,” he says.
“Disgraceful on the allegation, no words, no aftermath … and no one saw anything and no one reported it.”
Remy Varga 10.30am: Defence argument continues
Mr Walker says the jury was not presented with a cohesive or reliable account. “The Crown’s argument embraced, at the very least, that considerable discrepancy which at the very least tells against reliability,” he says.
Tessa Akerman 10.20am: Reasonable doubt ‘to put it mildly’
Mr Walker has described Pell’s “fresh approach to mingling with congregants” after mass as his alibi.
He said if Pell was at the west door of St Patrick’s Cathedral with congregants after mass it was “literally, logically impossible” for the offending to occur and the alibi must raise reasonable doubt “to put it mildly.”
He said alibi applied to being at the west door of the cathedral instead of the sacristy as much as being in New Zealand when offending occurred in Australia and minutes were the same as days.
Mr Walker is now questioning the complainant’s evidence that the second incident in a corridor occurred over a month later, which the prosecution placed as a date in February 1997.
The victim had placed both events as in 1996 and Mr Walker said the assignment of the same calendar year could not easily be put aside.
Remy Varga 10.15am: Time a key factor
Pell’s appeal bid all comes down to the clock. Mr Walker, SC, tells Victoria’s Supreme Court it is “literally impossible” the offences could have taken place in the five to six minute time frame accepted by the jury.
“I refer to a network of evidence … activities, rituals, practices, customary traditions … combine to render either literally impossible or so unlikely to leave no realistic the notion of those three persons … five to six minutes undisturbed,” he says.
Remy Varga 10.05am: ‘Considerable amount of evidence’
Victoria’s Supreme Court did their homework ahead of today’s appeal bid.
Chief Justice Anne Ferguson said in her opening remarks that she, Court of Appeal president Chris Maxwell and Justice Mark Weinberg have reviewed recordings, transcripts, photographs, robes and documents in preparation.
“We have also prepared for today’s hearing by undertaking a range of work
including reviewing a considerable amount of the evidence (recordings, transcripts,
photographs, robes, documents);” she said.
“Undertaking a view of the Cathedral in the presence of both parties’ lawyers to help us understand what evidence the jury considered; reviewing parts of the parties’ closing submissions and the judge’s rulings and charge to the jury.”
The Australian’s John Ferguson this morning reported the three justices had visited St Patrick’s Cathedral, the scene of where the offences are said to have taken place.
Tessa Akerman 9.55am: Submissions ‘should disturb court’
Mr Walker said the most obvious feature of the abuse in the sacristy was the absence of anyone in the room apart from the two victims and Pell.
“No one else apart from the victims and the perpetrator in that room for five to six minutes,” he said.
Incidental to this claim is the inherent risk taking in the conduct, Mr Walker said, and the physical improbability of the “simple pulling aside” of Pell’s vestments to commit the “atrocious act”.
Justice Weinberg raises the prosecution submission that the sacristy abuse may have occurred on November 3, 1996, contrary to the almost agreed two possible dates in December during the trial. Mr Walker said the submission “should disturb the court”.
“If it didn’t take place on one of those two dates the Crown case fails,” he said.
Tessa Akerman 9.40am: Pell wearing clerical collar
Chief Justice Anne Ferguson and justices Chris Maxwell and Mark Weinberg have arrived on the bench. Pell has been brought into the court wearing his clerical collar and flanked by four guards. He appears tired but focused on the court activity
We start with Justice Ferguson saying the bench has already read prosecution and defence submissions and reviewed a considerable amount of the evidence including recordings, transcripts, photographs, documents and robes.
She warns people watching the live streaming of the proceedings may find it distressing and to contact support services if needed. Pell’s barrister Bret Walker SC is now on his feet.
Remy Varga 9.30am: Defence submission
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Remy Varga 9.25am: Prosecution case
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David King 9.15am: Prosecution’s argument
The Crown argued in its submission that there was corroborative evidence to back the guilty verdict and that the complainant was credible.
“The evidence given by the complainant was not only plausible, it was credible, clear and entirely believable as is reflected in the jury’s verdict,” the Crown said.
“Any inconsistencies in the complainant’s evidence were of little moment and could not have been said to have impacted on his credibility in any material way. Where confronted with something that might be viewed as contrary to earlier evidence he’d given, the complainant readily made concessions where appropriate.”
The Crown argued in its submission that there was corroborative or supportive evidence and the assaults did occur.
“For instance, the complainant accurately described the layout of the Priests’ Sacristy — a room in which he had never been as far as he could recall,” the submission said.
“The ability of the complainant to so accurately describe the layout and wood panelling of the Priests’ Sacristy (including the alcove) — an area in which he could not recall having ever seen either before or after this event — was a significant aspect of the Crown case.
“It bespoke both truthfulness and reliability.
“Furthermore, the complainant’s knowledge that this was the area in which the sacramental wine had previously been stored, reinforced that he had been within the sacristy after mass.”
They argued that the sex acts would have been concealed from view, and would not have been heard from the corridor even if the door to the sacristy was open.
They argued that it was possible for Pell to be alone in the sacristies only for a few minutes after mass, and that he did not always spend time meeting and greeting parishioners at the front of the Cathedral after mass.
And they argued that it was possible for Pell to assault the two boys there, undetected.
The Crown argued that the jury “was not bound” to accept Pell’s denials, contained in the record of interview he did with police in Rome.
“Upon an analysis of the whole of the evidence in this trial, it was open to the jury, who were in the best position to see and hear the witnesses during the trial, to be satisfied beyond reasonable doubt of the applicant’s guilt of the charges.
“There is thus no basis upon which the verdicts of the jury could be considered perverse. The jury were confronted with a credible and impressive witness whose evidence, as the prosecutor put it, ‘fitted’ with the evidence of others.“
John Ferguson 9.05am: Cardinal’s backers
George Pell’s supporters have arrived in Court 15, including niece Sarah. His support group also includes his long time adviser Katrina Lee, solicitor Paul Galbally and Jesuit lawyer Frank Brennan. Barrister Ruth Shann is assisting Bret Walker, SC.
Remy Varga 9am: Pell offending ‘improbable, impossible’
George Pell’s legal team will today present a “catalogue of impossibilities” in a bid to overturn the disgraced cardinal’s conviction for sex offences.
Documents released this morning by the Supreme Court of Victoria reveal Bret Walker SC, acting on behalf of Pell, will attempt to convince the Court of Appeal the offending could not have happened.
“The incidents described by the complainant would require such a concatenation of startling, remarkable improbable and even impossible things all to have occurred in the same 10-15 minutes that it is implausible to think that any of these witnesses have simply forgotten such a remarkable day,” it said.
Pell was convicted in December of a series of sex offences relating to choirboys at St Patrick’s in 1996 and 1997. A jury found the worst offending occurred in the sacristy after Sunday mass.
The application for leave to appeal argues the jury must have had a reasonable doubt, with Mr Walker declaring the complainant’s testimony inconsistent and implausible.
“At best, these repeated alterations revealed him to be uncertain and unreliable about critical particulars of his own narrative,” it reads.
“At worst, he demonstrated a tendency to deliberately alter crucial elements of his story on numerous occasions when confronted by solid obstacles.
“These repeated attempts to make two factually impossible allegations marginally more realistic ultimately failed.”
Pell’s team will argue evidence given by witnesses called on by the Crown cast doubt on the prosecution’s case, including testimony given by the former Cardinal’s master of ceremonies Monsignor Charles Portelli and other choristers.
“There was no witness who said they saw this occur [the offence] and there was unchallenged evidence that Pell was always with Portelli,” it said.
“And Portelli (unchallenged) said he did not ever see Pell do such a thing.”
John Ferguson 8.45am: Appeal case outlined
The defence submissions, released this morning, are based on Pell’s strident view that the offending could never have happened. In a tightly written document, the defence focuses on the plausibility of the offending occurring in the cathedral.
Its claims include that Pell wasn’t left alone, that the complainant claims the offending occurred while the sacristy door was open and that no one saw the choirboys leave their colleagues after mass.
The document necessarily relies on the core arguments outlined in the County Court.
John Ferguson 8.10am: Action outside court
George Pell is believed to have arrived at court for his appeal hearing.
Prison van arrives ahead of George Pell’s appeal hearing at Victoria’s Court of Appeal @abcnews @abcmelbourne pic.twitter.com/qkC63lQTdi
— Stephanie Ferrier (@FerrierSteph) June 4, 2019
John Ferguson 7am: Security tight
The Victorian Supreme Court will face its biggest security operation in years. Pell is considered one of the highest-risk prisoners in Australia. Not to others. But from others.
He will be transported by prison van to the court in a trip that will take only a couple of minutes.
The assessment prison where he is being held is about a 10-minute walk from the courts. It is possible that photographers will get the first picture of Pell in three months when he is escorted from the prison van.
He is likely to be handcuffed or shackled, despite his age and poor health.
Friends have said that despite his ordeal he has maintained his faith and confidence despite the shame of the convictions and the spectre of being defrocked if the appeal fails.
What we can expect:
The guts of the Pell appeal is the defence assertion that the jury got it wrong, that Pell’s not guilty plea wasn’t properly entered before the jury and that the jury should have been able to see a computer presentation during the defence’s closing showing movements in the church after Solemn Mass.
Of the three grounds, the main game is whether or not Bret Walker SC, for the cardinal, can convince the three judges that the jury delivered an unsafe verdict.
It is not easy to overturn jury verdicts.
This case will differ from some because the three judges will have access to the complainant’s cross examination, which was recorded on video.
The conventional wisdom is that the complainant was credible and that this swayed the jury.
But will it sway the Court of Appeal?
The judges and the Cathedral
It’s very interesting that the judges and various hangers on visited St Patrick’s Cathedral last week.
They walked the grand cathedral, built in Gothic Revival style, in a large entourage that gathered the attention of the faithful.
But like the jury, the visit was not after Solemn Mass but during a relatively quiet period.
Anyone who attended the main Sunday mass at the cathedral in the 1990s will attest that it was busier than Bourke Street on Christmas Eve.
When the parishioners and choir left the building, it was taken over by Japanese tourists in full travel mode.
So what has the Cardinal been doing?
The Australian has reported snippets of Pell’s life at the Melbourne Assessment Prison.
Friends say he is holding up remarkably well.
We can add some more.
He is friendly with the prison staff, which is not a bad tactic.
Nothing worse than getting offside with the blokes with the keys to your medication.
The British journalist Austen Ivereigh leans towards the Catholic faith but has written an intelligent piece on Pell, questioning whether or not the cardinal is a martyr.
It carries a lively anecdote of Pell using a broom to sweep the prison courtyard during the hour each day when he is not locked up.
The idea is to build the strength in his chest to help his ailing heart.
He cannot say mass.
The High Court?
People are jumping the gun when they speak of Pell’s appeal inevitably being successful.
As The Weekend Australian reported, there are experts on these issues who have differing views on the likely success or otherwise of the appeal.
It will come as no surprise to me if Pell is rejected and the High Court doesn’t even take on the case. It’s a 50/50 thing.
At the same time, there are valid questions to be asked about how Pell was convicted in the first place, particularly given the he said, he said nature of the cases.
There is limited corroborative evidence and one of the choirboys is dead. The other’s evidence has not been publicly released, not even in redacted transcript form.
What happens after the appeal is heard?
It’s possible that Pell would be released from custody on Thursday if his appeal is successful.
But it’s unlikely.
The Court of Appeal is more likely to take weeks or months to decide and hand down its reasons.
If the appeal is unsuccessful, prison authorities will be under pressure to send Pell to a country prison that caters for sex offenders.
He remains a massive security risk.
He could be sent either to Ararat or Langi Kal Kal, near Ballarat. Both cater for sex offenders.
Ararat is holding the vile Catholic sex offender Gerald Ridsdale. Imagine the pair meeting again for the first time in many years.
The two-day appeal
Don’t expect the next two days to be like an episode of LA Law. It is likely to be turgid. Important but turgid.
The live-streaming of the appeal is a welcome development but don’t expect ratings to blow the roof off the Supreme Court.
George Pell
Expect him to be there. The old culture warrior has made it clear he wants his day in court.
He will be supported by his closest friends and a nuclear strength legal team.
Pell is being backed by the big end of the Catholic town. He is an intriguing figure. Those who know him well, swear by him. To them he is relentlessly supportive and charismatic.
On the other end of the scale is the victim, a man of limited means who his supporters also swear by. Pell, it must be remembered, is a convicted sex offender.
He needs to win this appeal to restore any sense of a reputation.
Additional reporting: Tessa Akerman, David King
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