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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
Criminal Case No. HAA 048 of 2008
Between:
JOSEPH CHRISTOPHER
1st Appellant
VINAY V VISHAL
2nd Appellant
And:
STATE
Respondent/State
Date of Hearing : 23rd October 2008
Date of Judgment : 27 November 2008
Appearances:
1st Appellant represented by Mr. Sharma of the Legal Aid Commission
2nd Appellant appeared in person
Ms. V. Lidise for the Respondent
JUDGMENT
The 1st Appellant
The 1st Appellants First and Second Grounds of Appeal
5. In relation to the First Ground of Appeal, the 1st Appellant says that at no time during the proceedings were the charges read, and that he was never given an opportunity to enter a plea before the Court.
6. In relation to the Second Ground of Appeal, the 1st Appellant says that he never consented to this matter being tried in the Magistrate Court, as required under section 4(1) of the Criminal Procedure Code.
7. In support of the 1st and 2nd Grounds, the 1st Appellant refers to the Court Record of the proceedings in the Magistrates Court from 17 May 2007 until 8 February 2008. He says that the Court Record does not show that his consent was given to be tried in the Magistrates Court. He also relies on the fact that there is no record of the charges being read, and of him entering a plea.
8. In further support of these contentions, the 1st Appellant also gave sworn evidence from the witness box, which I allowed with the consent of both parties and in accordance with section 320(1) of the Criminal Procedure Code.
9. In his evidence in chief, the 1st Appellant said that on the day of the hearing, which was 26 June 2007, the Prosecutor stood up and said that the complainant wanted to go to England so he gave his statement and that the 1st Appellant was told that he could cross-examine him.
10. The 1st Appellant said that at no time during the proceedings were the charges read. He said that he was never given an opportunity to enter a plea before the Court.
11. The 1st Appellant also said in evidence that he was never asked if he consented to this matter being tried in the Magistrates Court.
12. In cross-examination, the 1st Appellant was challenged on the truthfulness of his statement that the Prosecutor informed the Court on the day of trial, the complainant wanted to go to England. The 1st Appellant maintained this statement. However, when shown page 4 of the Court record, the 1st Appellant was unable to find any record of this having been said in Court.
13. However, the 1st Appellant maintained that at no time during his numerous appearances in the Magistrates Court was he asked if he consented to his case being heard in the Magistrates Court. He said that the charges were never read and that he was never given an opportunity to plead.
14. The State called Inspector Levi Vurabure, of the Fiji Police Force who was the Prosecuting Officer in the Nadi Magistrates Court.
15. Under oath, Inspector Levi Vurabure said that he had been prosecuting cases for 30 years. He said that he remembered prosecuting this case in the Nadi Magistrates Court.
17. Inspector Levi Vurabure said that he could remember the 1st and 2nd Appellant’s case. He said on 26 June 2007, the charge was read and explained to them. He said they then pleaded not guilty.
18. Inspector Levi Vurabure said before that, both Appellants gave their consent to have the trial in the Magistrates Court.
19. Inspector Levi Vurabure said that the election to have the matter tried in the Magistrates Court came first, the charge was read, and their pleas were taken.
20. Under cross-examination, Counsel for the 1st Appellant referred to an affidavit that he had sworn on 3 July 2008 which was evidence in the matter of the State v Nazrin Nisha Criminal Appeal Case 12 of 2008. This appeal also related to one of the 1st and 2nd Appellants co-accused who was tried at the same time and relied on the same grounds of appeal.
21. In that affidavit, Inspector Levi Vurabure exhibited the contemporaneous record of the 1st and 2nd Appellants pleas in minute number 9 of Police Docket CR694/07.
22. He also conceded that the date of 22 June 2007 on minute number 9 did not correspond with the date of 26 June 2007, being the first day of trial shown in the Court Record.
23. He also conceded that he did not record the fact that the 1st and 2nd Appellants had consented to have their case tried in the Magistrates Court, although he maintained that each of the Appellants were given an opportunity to elect which Court they wanted to be tried in, that their charges were read out, and they both pleaded not guilty.
The 3rd Ground of Appeal
31. In support of the 3rd Ground of Appeal, the 1st Appellant says that the learned Magistrates judgment dated 25 January 2008 has shortfalls in light of section 155 (1) of the Criminal Procedure Code Cap. 21.
32. The 1st Appellant says that the judgment is deficient in that there is no acceptance or rejection of witnesses, particularly in those instances where the co-accused have given evidence. He also contends that there are no findings of fact, and no application of the law to the facts without stating those considerations which lead to his findings.
33. I have read the learned Magistrate’s judgment. It is 20 pages long. He starts by outlining the facts of this case. He says that from the outset, all of the accused were informed of their right to legal representation. He says that the 1st and 2nd Appellants said that legal representation was not required, and that they would deal with the case themselves.
34. He outlines the evidence given by each of the 11 Prosecution witnesses. In some instances, he outlines pertinent questions that were put to prosecution witness in cross-examination. He says that PC 309 Opeti who tendered the 1st Appellants caution interview, was not cross-examined by the 1st Appellant.
35. The learned Magistrate deals with the legal aspects of his finding that there was a case to answer, and that he called for a defence. In doing so, he outline many of the relevant legal authorities from Fiji, Australia, England and Wales.
36. In considering the 1st Appellants defence, the Learned Magistrate says that the 1st Appellant has said everything in his interview and will say no more. Whatever he said there he said it and that is it.
37. In considering the 2nd Appellants defence, the learned Magistrate said that the 2nd Appellant will not say anything else as he had already given a statement to the Police. He then elected to remain silent after that.
38. The 2nd and 4th accused gave evidence. The 2nd accused said that she was at the scene and implicated the 1st and 2nd Appellants. The 4th accused said in an unsworn statement that he had no idea that his co-accused were going to commit the offence of Robbery with Violence.
39. After considering the evidence, the learned Magistrate directed himself in relation to the weight that is to be given to unsworn statements, and the inferences that may be drawn from circumstantial evidence. He also directed himself that it is the Prosecution who bears the onus of proof, that it must prove the elements of the offence, including the presence of mens rea, and that the case must be proved beyond reasonable doubt.
40. The learned Magistrate also directed him self on corroboration and mentioned the judgment of DPP v Boardman (1975) 60 Cr. App. Rep. 165 at 183 where Lord Halisham said that when a jury (or Judge) is satisfied beyond doubt that a given witness is telling the truth, they can, after suitable warning, convict without corroboration. He also directed himself on identification in accordance with R v Turnball (1977) Q. B. 228.
41. The learned Magistrate also says that he has found the Caution interviews of all accused to be voluntary. He also says that he has exercised extreme caution when dealing with evidence of an accused against a co-accused.
42. Having made these directions, the learned Magistrate found that that there was sufficient evidence by which he could find the 1st and 2nd Appellants guilty beyond reasonable doubt, and he convicted them accordingly.
43. Neither the 1st or 2nd Appellant elected to give evidence, so it was unnecessary for the learned Magistrate to find that he accepted or rejected their evidence. However, it is clear to me, that by finding the charge against each Appellant proved beyond reasonable doubt, he has accepted the confessions contained in each of their Caution Interviews and Charge Statements which were tendered as part of the Prosecutions case.
44. In relation to the evidence given by the 2nd and 4th accused against the Appellants, the learned Magistrate has said that he has exercised extreme caution with dealing with evidence of an accused by a co-accused.
45. By directing himself in this way, it appears to me that the learned Magistrate has adopted and applied the principles set out in the leading authority of R v Knowlden and Knowlden, 77 Cr.App.R. 94, CA, which says when considering what warning is necessary, if any, when one accused gives evidence incriminating a co-accused, in exercising his discretion, the judge is at least expected to give a clear warning to a jury to examine the evidence of each with care because each has or may have an interest of his own to serve.
46. Having outlined the evidence against the 1st and 2nd Appellants, and the relevant principles of law that enabled him to accept their confessions, and after giving himself all of the necessary directions that I have mentioned, I do not find that the judgment fails to comply with the requirements of section 155(1) of the Criminal Procedure Code Cap. 17.
The 4th and 5th Grounds of Appeal
47. In relation to the 4th and 5th Grounds, the 1st Appellant says that he was not asked by the learned Magistrate if he objected to the admissibility of his Caution Interview and Charge Statement, or if it was voluntary. Instead, he complains that the learned Magistrate incorrectly assumed that they were voluntary.
48. The 1st Appellant says that the learned Magistrate was obliged to ask him if he challenges the admissibility of these statements, before they became exhibits.
49. In support of this contention, the 1st Appellant relies on the 1971 Court of Appeal decision of John Levu v Reginam where the Court of Appeal held "Where a Statement by an accused person being tried by a judge alone is tendered in evidence by the prosecution, and the accused person is not represented by counsel, the judge should ascertain whether the accused desires to object to the admission of the statement. How far the judge should go in explaining the law to the accused at that stage can only be resolved by the exercise of the judges judgment and discretion having regard to the circumstances of the particular case and the level of education and general characteristics of the people who appear in his court.
50. At page 226 of the judgment, the Court of Appeal said: the question how far a judge should go in that respect is a difficult one and can only be resolved by the exercise of the judgment and discretion of the judge...
51. In MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, the High Court of Australia (per Mason J at 523) said "The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law. He must accordingly exclude evidence tendered against the accused which is not shown to be admissible. Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only be done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for. We are not to be taken as suggesting that the trial judge must hold a voir dire on every occasion when a confession is tendered, or that he is bound to accede to an application made for a voir dire when there is nothing to suggest that a real question of voluntariness, unfairness or impropriety arises, for it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition, or a means of testing in advance the evidence of the Crown witnesses. "
52. At page 533 His Honour said, "There will be cases in which doubt arises whether the voluntariness of a confession is in issue, especially cases in which the accused is unrepresented. Then it is for the trial judge to resolve that doubt by clarifying that position.
53. In the judgment of Brennan J at 547 of the same case, His Honour observed the Privy Council decision of Seeraj Ajodha v. The State [1982] A.C 204 and said "their Lordships allowed the convicted prisoners’ appeals, holding that the trial judge’s failure to accord the "all–important safeguards of a judges ruling required the quashing of convictions. The appeals were allowed, although there was no evidence tending to show involuntariness given by or on behalf of the two appellants, Chandree and Fletcher, and no formal objection taken to the admission of the confessions. Neither gave evidence; each of them raised the issue of voluntariness for judicial decision only in cross-examination of prosecution witnesses and later from an unsworn statement from the dock. That was sufficient to raise the issue of involuntariness and to require the safeguard of a judicial ruling. No doubt the usual and most convenient manner of raising an issue of involuntariness is on a formal objection to the admission of a confession, but the issue may be raised and a ruling required in a case where an objection is not formally taken, particularly where an accused is not represented.
54. PC 2548 Meli gave evidence for the State. He said that the 1st Appellant admitted to him that it was he who hit the victim, and seeks the Court leniency.
55. PC 309 Opeti also gave evidence for the State. He said that he interviewed the 1st Appellant and that he admitted the allegations. He also said that the 1st Appellant signed a statement which was subsequently tendered to the Court.
56. At question 25 of his statement, the 1st Appellant admitted that he assaulted a European man. He said that he punching him 8 times, kicked him once, and then whacked him 4 times in the face with a piece of iron until he was knocked out.
57. At question 26, the 1st Appellant said that he searched his pockets and stole a mobile phone and a wrist watch, before fleeing from the scene in a vehicle.
58. The Court Record shows that the 1st Appellant was then given a chance to cross examine this witness. However, he appears to have declined and remained silent.
59. This is the statement that the 1st Appellant adopted in his Defence, without suggesting in any way that this statement may have been involuntary, or that he wanted to challenge its admissibility.
60. At page 19 of the Judgment, the learned Magistrate says that he has considered the caution interviews of the accused and that he finds them to be voluntary and admissible. He also says that in the case of the 2nd accused, he asked some questions to satisfy himself that her statement to the Police was voluntary, and not given while put under pressure to do.
61. Having consider the authorities on this issue, as outlined above, and in the absence of there being any suggestion at any time during the trial by either the 1st or 2nd Appellants that their confessions were involuntary, I am satisfied that the learned Magistrate did not breach the accepted principles of fairness by not conducting a voir dire into the admissibility of the caution statements.
62. In this case, it appears clear to me that the 1st and 2nd Appellants had no objection to these documents being tendered, and as such, no enquiry was necessary.
The 6th Ground of Appeal
63. For the reasons given in paragraph XXX above given under the 3rd Ground of Appeal, I find that the learned Magistrate properly
directed himself on the danger of convicting an accused on the uncorroborated evidence of an accomplice.
The 7th Ground of Appeal
64. The State says that when this matter was first in Court on 25 May 2007, it was adjourned for the usual pre-trial preparations. On that day, the 1st and 2nd Appellants were reminded by the learned Magistrate of their right to retain legal aid or a private lawyer.
65. The trial commenced on 26 June 2007. On that day, the 1st and 2nd Appellants were still without legal representation. However, they were again reminded by the learned Magistrate of their right to legal representation.
66. The State referred me to page 4 of the hearing bundle, which shows the record of proceedings for 26 June 2007. The record shows that both Appellants were told about their right to legal representation. It says that both Appellants informed the Court that they would preceed without it.
67. At page 4, The Court Record shows that the learned Magistrate recorded the following:
"Told them about right to legal representation especially accused 1 to 3.
Accused 1, 2 and 3 will proceed without lawyer/legal aid. I have given them their right to legal representation on [sic] few occasions earlier.
Since accused 1, 2 and [sic] do not want legal representation, there is not much I can do. I have done my duty. They say they will deal with the case themselves. All accused are fully aware to [sic] their right under the constitution of legal representation."
68. I have carefully considered the Court record. It contains details of each court appearance by both Appellants.
69. The Court Record shows that the 1st Appellants’ rights to legal counsel were explained by the learned Magistrate on 17 May 2007, 25 May 2007, and 22 June 2007. On 26 June 2007 the 1st Appellant was again reminded of his right to legal representation at trial. However, he elected to proceed with out it.
70. Having carefully reviewed the comments made by the learned Magistrate throughout, including the opening remarks in his judgment, I find that a proper effort was made by him to ensure that the 1st Appellant was made aware of, and that he understood his right to legal representation, before he elected to proceed with the trial.
71. The Court Record also shows that throughout the trial, the 1st Appellant was given an opportunity to test the prosecution evidence through cross-examination, and on some occasions, he exercised this right.
72. Page 24 of the record shows that at the close of the prosecution case, and after the learned Magistrate found there was a case to answer, when invited to tender his defence, the 1st Appellant is noted as saying;
"He has said everything in his interview and will say no more. Whatever he said there he said it and that is it. He will remain silent i.e. said all in the interview"
73. In the circumstances, I do not find that the 1st Appellant was prejudiced by lack of legal representation.
The 2nd Appellant
75. That the conviction cannot stand against the appellant on the evidence that the offence of this nature was committed by each, (accused 1, accused 2) of them, independent wilfully and intentionally.
76. At the hearing of his appeal, the 2nd Appellant also advanced the following ground of appeal against conviction and sentence:
i. That he was not ready to present his defence at trial because he was still looking for a lawyer; and
ii. That the trial was unfair because he did not have a lawyer, and because he did not commit the crime.
iv. That 10 years is too harsh given that the 2nd accused only received a sentence of 3 years imprisonment.
77. At the completion of the 1st Appellants appeal, the 2nd Appellant made an application from the dock to further amend his grounds of Appeal against conviction to include the following:
i. The Learned Trial Magistrate failed and/or neglected to obtain the consent of the 1st Appellant before proceeding with the trial contrary to section 4(1) of the Criminal Procedure Code.
ii. The Learned Trial Magistrate failed and/or neglected to take a plea before commencing the proceedings hence the entire trial was a nullity.
1st, 5th and 6th Grounds of appeal
78. These grounds of appeal are related. Although the complainant said in cross examination by the 1st Appellant that at the time of the assault he was drunk and that he does not know how the assault happened, and that he does not know who assaulted him, the complainant did say that at the time of the assault, he was robbed of a number items including his watch, some cash, and a mobile phone.
79. PC Viliame Waqalevu gave evidence for the State. He said he recovered a watch from the 2nd Appellant (3rd Accused) who had informed him that he got it from the 1st Appellant. This watch was later identified by the complainant as being the one which was stolen from him when he was assaulted.
80. Acting Sgt 2724 Serovi gave evidence for the State. He said that when he interviewed the 2nd Appellant, he gave a statement describing what happened at the scene. This statement was tendered at trial.
81. At question 22 of his statement, the 2nd Appellant said that he and the 1st Appellant followed a European man because they were going to rob him. At question 23, he said he was there when the 1st Appellant, who he refers to as "Junior", punched and kicked the European man. At question 24, the 2nd Appellant said that the 1st Appellant searched and stole some items from the European man.
82. At question 26, the 2nd Appellant was asked where he was at this time, and he replied "I was standing near the road side to guard as [sic] what was going on".
83. Page 25 of the Court record shows that on 29 November 2007, when the 2nd Appellant was given an opportunity to tender his defence, he is recorded as saying:
"He will today remain silent. But he says he told everything in interview and whatever he said there he will not add to it. He will now remain silent and say no more"
84. This is the statement which was tendered by Acting Sgt.2724 Serovi who interviewed the 2nd Appellant and subsequently tendered his statement at trial.
85. In the circumstances, I find that from the evidence tendered by the Prosecution, including the 2nd Appellant Caution Statement, which contains a direct admission of guilt, the learned Magistrate was entitled to rely on it to find that the Prosecution had proved the elements of the offence beyond reasonable doubt and that he was justified in convicting the 2nd Appellant.
The 2nd and 3rd Grounds
86. The 2nd Appellant complains that the Learned Magistrate has paid too much attention to the circumstantial evidence presented by the Prosecution, or inadmissible evidence, while failing to accept the defence evidence that the 2nd Appellant did not play any active role in the commission of the offence.
87. From the judgment, It appears to me that learned Magistrate has properly direct himself on the weight that he is to give to circumstantial evidence, and reminded himself that it must be examined narrowly. He has also consider whether or not the Caution interviews of all accused were voluntary and admissible.
88. At the trial, the 2nd Appellant failed to lead any evidence as part of his defence that he did not play an active role in the commission of the offence. He said that he would rely on his Caution Interview which had already been tendered as a prosecution exhibit. The 2nd Appellant did not object to its admissibility.
89. In response to question 22 and 26 of his Caution Interview, the 2nd Appellant confirmed that he was part of the joint enterprise to assault and rob the complainant, and that he did so by keeping guard as to what was going on.
90. Given what the 2nd Appellant has said in the Caution Interview, and that he did not object to its admissibility, and in the absence of any evidence to support this contention, I did not see how either of these grounds of appeal can succeed.
The 4th Ground
91. The 4th Appellant argues that the learned Magistrate erred in law and in fact by misdirecting himself on the burden and standard of proof.
92. In his judgment, the learned Magistrate has directed himself on the burden of proof. He identifies that the burden of proof is on the Prosecution and that the standard of proof is proof beyond reasonable doubt.
93. In light of these directions, this ground of appeal is clearly misconceived and must fail.
7th and 8th Grounds
94. The Court Record shows that the 2nd Appellants rights to legal counsel were explained by the learned Magistrate on 17 May 2007, 25 May 2007, and 22 June 2007. On 26 June 2007, the 2nd Appellant was again reminded of his right to legal representation at trial. However, he elected to proceed with out it.
95. Having carefully reviewed the comments made by the learned Magistrate throughout, I find that a proper effort was made by him to ensure that the 2nd Appellant was made aware of, and that he understood his right to legal representation, before he elected to proceed with the trial.
96. In the circumstances, I do not find that the 2nd Appellant failed to receive a fair trial because he was denied an opportunity by the Court to arrange suitable legal representation.
11th and 12th Grounds
97. The 2nd Appellant gave sworn evidence of what transpired during the course of his trial. He said that at no time during his trial was he given an opportunity to consent to his case being tried in the Magistrates Court.
98. He also said that the charges were never read to him and that he was never given an opportunity to enter a plea.
99. Under cross-examination, the 2nd Appellant said that when this matter first came to Court on 17 May 2005, the charges were never read, although he agreed that he was reminded of his right to legal representation.
The Appeals against Sentence Grounds 9 and 10
104. The 2nd Appellant also appeals against sentence.
105. He says that he did not deserve to receive the same sentence as the 1st Appellant because he only acted as guard or watchman. At the time of the assault, the 2nd Appellant says he did not know what was going on.
106. He also says that 10 years is too harsh given that the 2nd accused only received a sentence of 3 years imprisonment.
107. The State also opposes this appeal against sentence. It says that the 2nd Appellant’s sentence is not manifestly excessive. They also say that had the learned Magistrate been able to impose a higher sentence, he would have been justified in doing so.
108. In his sentencing remarks, the learned Magistrate referred to the judgment of Shameem J where she said in respect of Robbery with Violence in State v Haisa Sousou Cava (unreported) Suva High Court Criminal Case No: HAC 007.00S; 19 April 2001:-
" The offence is also prevalent in Fiji, and there is a duty on the court to pass a sentence which reflects the gravity of such offending."
109. The learned Magistrate further remarked that as a consequence of the assault, the complainant suffered skull fractures, and lost an eye. As a consequence of his partial blindness, he may no longer fly hot air balloons, or use his pilot’s license when he returns to work in his home country. He has lost his income of $40,000 per year. Overall, the complainants’ quality of life has been reduced significantly.
110. Having become familiar with the facts of this case, and after reading the victim impact statement, I can only conclude that this case is amongst the most severe of its kind. Given that the statutory maximum sentence for this offence is life imprisonment, the Courts are entitled to take an unsympathetic view when considering sentence for such savage conduct.
111. The circumstances of this robbery and assault were such that a sentence of 10 years was justified. The complainant was attacked from behind at night while he was returning to his car. He had no chance of defending himself. After the assault, which involved punching, kicking and several blows to the face with an iron bar, the complainant was robbed and simply left for dead by the roadside.
112. The 2nd Appellant says that because he only acted as a watchman or guard, his culpability was something less than that of the 1st Appellant. He says that because the 2nd Accused only received a 3 year sentence, he too is deserving of a lesser term of imprisonment.
113. After trial, the 2nd accused was convicted of the lesser offence of robbery, whereas the 1st and 2nd Appellants were both convicted of the more serious offence of robbery with violence. This explains the difference in sentence between 1st and 2nd Appellants, and the 2nd Accused.
114. By acting as a watchman and standing guard while the 1st Appellant assaulted and robbed the complainant, the 2nd Appellant became equally liable for the offence. Although he may not have been personally responsible for the severe injuries inflicted on the complainant, he is of course responsible for them as part of the joint enterprise.
115. Having convicted both Appellants of the same offence, the learned Magistrate appears to have applied the same principles in sentencing.
116. The principle governing appeals on sentence is that the Courts ought not to interfere with the sentence of the Court below, unless it is within the "harsh and excessive" category and is out of the usual range. In this case, I find that a sentence of 10 years is clearly within the expected range and that in the circumstances of this case, it is neither manifestly harsh, or excessive.
117. As they were working together in the commission of the offence, and were both convicted, I see no reason why the learned Magistrate can be criticized for this limb of the sentence. The sentence of 10 years is clearly within the expected range for this degree of culpability. In the circumstances of this case, it is neither manifestly harsh, or excessive.
118. However, in addition to the term of 10 years imprisonment, the learned Magistrate also ordered that both Appellants receive 4 strokes of corporal punishment, subject to High Court confirmation.
119. In Ali v. The State [2001] FJHC 123, the Court held that convicted persons cannot be sentenced to corporal punishment and any sentence purporting to incorporate it is un-constitutional, and that such punishment will be set aside on appeal.
120. I therefore order as follows:
i. The 1st Appellants appeal against conviction is to be dismissed;
ii. The 1st Appellants sentence of 10 years imprisonment with 4 strokes of corporal punishment is to be quashed, and replaced with the sentence of 10 years imprisonment;
iii. The 2nd Appellants appeal against conviction is to be dismissed; and
iv. The 2nd Appellants sentence of 10 years imprisonment with 4 strokes of corporal punishment is to be quashed, and replaced with the sentence of 10 years imprisonment.
Anthony J Sherry
Judge
At Lautoka
27 November 2008
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