Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Poidevin v Semaan [2013] NSWCA 334
• Hearing dates: 27 August 2013
• Decision date: 10 October 2013
• Before: Ward JA at [1]; Emmett JA at [2]; Leeming JA at [6]

Decision

1. Leave to appeal granted.

2. The draft notice of appeal stand as the notice of appeal in the proceedings, and the further requirements of the rules with respect to its filing and service be waived.

3. The orders made on 22 March 2013 be set aside, and in lieu thereof the appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 be dismissed with costs.

4. No order as to the costs of the appeal to the Court of Appeal, with the intent that each party bear his own costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - confined to ground that involves a question of law alone - no error in law in Magistrate failing to consider defence of honest and reasonable mistake of fact which was not raised before him; POLICE - powers and duties - power to seize property to prevent breach of the peace - police officer attempted to seize respondent's mobile phone - respondent convicted of resisting a police officer in the due execution of duty - police officer obliged to inform respondent as soon as reasonably practicable after exercising the power of his name, place of duty and the reason for exercising the power - elements of offence made out even though no evidence that information was given - no obligation to prove that officer formed view that it was impracticable to give information before exercising power - consideration of nature of power at common law and as preserved by statute
• Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001; Crimes Act 1900; Crimes (Appeal and Review) Act 2001; Crimes (Sentencing Procedure) Act 1999; Inclosed Lands Protection Act 1901; Law Enforcement (Powers and Responsibilities) Act 2002
• Cases Cited: Albert v Lavin [1982] AC 546; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440; Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93; Edyp v Brazbuild Pty Ltd [2011] NSWCA 218; Egan v Willis [1998] HCA 71; (1998) 195 CLR 424; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120; Giddings v Director of Public Prosecutions [2008] NSWSC 169; (2008) 181 A Crim R 536; Gollan v Nugent (1988) 166 CLR 18; Humphries v Connor (1864) 17 IRCL 1; Minto v Police [1987] 1 NZLR 374; Piddington v Bates [1961] 1 WLR 162; R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; [2007] 2 AC 105; Reg v Howell [1982] 1 QB 416; Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577
• Texts Cited: Glanville Williams, "Arrest for Breach of the Peace" [1954] Criminal Law Review 578
• Category: Principal judgment
• Parties: Sergeant Damien Poidevin (Applicant); Richard Semaan (Respondent)
• Representation: Counsel: N Adams SC; B Baker (Applicant); M Dennis (Respondent); Solicitors: Crown Solicitor's Office (Applicant); Nyman Gibson Stewart (Respondent)
• File Number(s): 2013/117536

Decision under appeal

• Jurisdiction: 9111
• Citation: [2013] NSWSC 226
• Date of Decision: 2013-03-22 00:00:00
• Before: Rothman J
• File Number(s): 2012/149182

Judgment

1 WARD JA: I agree with Leeming JA.

2 EMMETT JA: The question raised by this application for leave to appeal is whether the respondent, Mr Richard Semaan, was properly convicted of an offence under s 546C of the Crimes Act 1900. That provision relevantly provides that a person who resists or hinders a police officer in the execution of his duty is liable, on conviction before the Local Court, to imprisonment for 12 months or to a fine of 10 penalty units or both. The question arose in proceedings brought under s 52 of the Crimes (Appeal and Review) Act 2001. Mr Semaan was convicted of an offence under s 546C and appealed under s 52, which permits an appeal on a ground that involves a question of law alone.

3 The Local Court found beyond reasonable doubt that the appellant, Sergeant Damien Poidevin, a policeman, was acting in the execution of his duty in seeking to prevent Mr Semaan from using a mobile telephone in circumstances that could have led to breach of the peace. The Local Court found that Mr Semaan resisted Sergeant Poidevin in contravention of s 546C.

4 Mr Semaan's appeal to the Supreme Court under s 52 was upheld on grounds that had not been argued before the Local Court. The primary judge held, first, that the onus lay on the prosecutor to establish that Mr Semaan had not made an honest and reasonable mistake of fact, as to whether Sergeant Poidevin was in the execution of his duty when he resisted Sergeant Poidevin's attempts to seize his mobile phone, and that that onus had not been discharged. His Honour also based his decision on the fact that there was no evidence that Sergeant Poidevin had provided Mr Semaan the information required by s 201(1) of the Law Enforcement (Powers and Responsibilities) Act 2002. That provision relevantly provides that a police officer must provide to a person who is subject to the exercise by the police officer of a power to seize any property evidence that the police officer is a police officer, the name of the police officer and his place of duty, and the reason for the exercise of the power.

5 I have had the advantage of reading in draft form the proposed reasons of Leeming JA. I agree, for the reasons given by his Honour, that leave to appeal should be granted to Sergeant Poidevin and that the appeal should be allowed. I agree with the orders proposed by his Honour.

6 LEEMING JA: The applicant, Sergeant Damien Poidevin, seeks leave to appeal from the decision of the primary judge setting aside the conviction of the respondent, Mr Richard Semaan, of the offence of resisting a police officer in the execution of his or her duty, contrary to s 546C of the Crimes Act 1900, which provides:

"Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both."

The applicant had been the informant in proceedings in the Local Court where the respondent was convicted. The respondent appealed, as was his right, pursuant to s 52 of the Crimes (Appeal and Review) Act 2001, a section which is confined to a ground that "involves a question of law alone".

Factual background

7 The essential facts as found by the Magistrate are as follows. Police officers were contacted on 14 September 2011 in relation to a domestic incident at a property in Auburn. One of the officers attending went to the yard of a neighbouring property where four men were observed, together with a bowl with cannabis residue and a bong which was warm to the touch. Two of the men ran off; in the meantime two additional police officers, including Sergeant Poidevin, arrived. The Magistrate then made these findings:

"All of the police officers gave evidence which I accept, that Sergeant Poidevin spoke to the accused who had said, 'What the fuck's happening, I want to go home.' Sergeant Poidevin responded, 'Wait here until we have finished doing our checks but it looks like at this stage you will be getting done for trespass.' The accused responded, 'Oh come on get fucked, we will see about this you wait and see, you're fucked now.' The accused then reached for his phone and began dialling. Sergeant Poidevin said words to the effect of, 'No mate get off the phone,' while attempting to reach for the accused's phone. The accused then moved the phone away from Sergeant Poidevin's reach and placed his forearm against Sergeant Poidevin's chest. Sergeant Poidevin held the accused's upper body and the accused resisted Sergeant Poidevin. This resulted in a struggle where both the accused and Sergeant Poidevin fell to the ground. The accused had injured himself and an ambulance was called. Sergeant Poidevin was also injured. The accused continued to struggle and was handcuffed but the handcuffs were released when he desisted from struggling."

8 Sergeant Poidevin also gave evidence that he told Mr Semaan not to use the phone because, based on his experience, there was an issue of officer safety. One of the men found on the premises used another mobile phone shortly afterwards, as a result of which five young men attended on the scene within five minutes. The Magistrate said this:

"I accept that evidence and that it was founded on a proper concern for his and other officers' safety. Police officers have to operate in the real world and Sergeant Poidevin was entitled to rely on his experience to make those judgments."

9 Mr Semaan was charged with unlawful entry on inclosed lands contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901, but that charge was dismissed on the basis that it had not been proven beyond reasonable doubt that he had not been invited onto the premises.

10 The basis of the defence in relation to the charge under s 546C was that there had not been a lawful arrest. Mr Dennis, counsel for Mr Semaan (who also appeared for him on both appeals), submitted that (a) it was not established that there was an imminent breach of the peace, (b) it could not be reasonably apprehended that any telephone call would lead to a breach of the peace, and (c) there had been a failure to comply with s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) at the time Sergeant Poidevin effected an arrest. The Magistrate rejected each of those submissions, relying on what had actually happened shortly after another man on the premises had used another mobile phone. He said that:

"Poidevin was within his duties to want to prevent the accused using his phone which could have led to breaches of the peace that the officer gave evidence about.... The mobile phone is the modern method of almost instantaneous communication."

11 The Magistrate accepted that the power of arrest was to be exercised in accordance with s 201, but found that Sergeant Poidevin was not arresting the accused. He found beyond reasonable doubt that Sergeant Poidevin was acting in the execution of his duty and that Mr Semaan resisted him. He ordered Mr Semaan to pay court costs of $81 and to enter into a bond to be of good behaviour for period of twelve months under s 9 of the Crimes (Sentencing Procedure) Act 1999.

12 The primary judge gave two reasons for setting aside that conviction, neither of which had been argued at the trial, and both of which are challenged on appeal.

Honest and reasonable mistake of fact

13 The first basis on which the conviction was set aside was that the onus lay upon the prosecutor to prove that Mr Semaan had not made an honest and reasonable mistake of fact (as to whether Sergeant Poidevin was in the execution of his duty) when he resisted Sergeant Poidevin's attempts to seize his mobile phone. This was not something raised by the parties when the appeal was heard. It was raised by the primary judge, by a written communication after judgment had been reserved, which led to a further hearing.

14 The applicable principles are not in dispute. The High Court confirmed in CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 at [5] (Gleeson CJ, Gummow, Crennan and Kiefel JJ) that honest and reasonable mistake of fact is "a basic legal principle of criminal responsibility which informs our understanding, and interpretation, of the criminal law." It is a "ground of exculpation" whose effect is that a statute will not be construed so as to render a person guilty of a crime if the person believes in the existence of circumstances which would make his or her conduct innocent: at [7]-[8]. Like other principles of statutory construction, it may be displaced, expressly or impliedly, by a sufficiently plain manifestation of legislative intention: CTM at [5], [146] (Hayne J), [200]-[205] (Heydon J). There is nothing to suggest that the requisite clear terms displacing the operation of that basic legal principle may be seen in s 546C of the Crimes Act. However, accepting as I do that it has not been displaced, it need be considered, to use Hayne J's language in CTM at [179], "only if the issue is alive". The joint reasons at [8] state:

"As explained in He Kaw Teh v The Queen (1995) 157 CLR 523 at 534-535, the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution."

15 The failure by the appellant to adduce evidence of his alleged mistaken belief, something which was peculiarly within his own knowledge, was dispositive of the appeal in CTM: see at [39] and [179] (Hayne J). As Mr Dennis conceded, this ground had never been raised before the Magistrate. It follows that there was no error in law in the Magistrate failing to consider whether Mr Semaan had made an honest and reasonable mistake of fact. Nor was the prosecutor required to prove that Mr Semaan had not made an honest and reasonable mistake of fact; the occasion for doing so never arose. The first basis given by the primary judge cannot support his order setting aside the conviction.

Effect of s 201 of Law Enforcement (Powers and Responsibilities) Act 2002

16 The primary judge, however, also rested his conclusion on a separate, independent ground, that there was no evidence that Sergeant Poidevin had provided to Mr Semaan the information required by LEPRA, s 201(1), including his name, place of duty and reason for seizing the phone. It followed that the prosecution had failed to prove beyond reasonable doubt that he was acting in the execution of his duty. The applicant challenged this reasoning. It is convenient, in order to explain why I agree that this challenge is made out, to consider the nature of the power exercised by Sergeant Poidevin and its role in the offence with which Mr Semaan was charged.

17 Section 546C, in its application to the present case, contains three elements: (a) resisting (b) a police offer (c) in the execution of his or her duty. It was and is uncontroversial that the prosecutor had to prove, beyond reasonable doubt, that the police officer was executing his duty, and doing so lawfully. The Crown Advocate, who appeared for the applicant, accepted that "in the execution of his or her duty" meant "in the lawful execution of his or her duty". That approach was correct, and accords with what McHugh J said (of the materially identical Queensland counterpart to s 546C) in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [117] that "It is not part of an officer's duty to engage in unlawful conduct."

18 At common law a police officer has a power of arrest where there is a reasonable apprehension of an imminent breach of the peace. That was held by the Court of Appeal (after an elaborate argument) in Reg v Howell [1982] 1 QB 416 at 426, and confirmed by the House of Lords in Albert v Lavin [1982] AC 546 at 565 and R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; [2007] 2 AC 105 at [29]-[33], [62], [101], [114] and [141]. In this State, see Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 at [152] (Mason P, Handley JA and Pearlman AJA agreeing).

19 Further, a police officer had power at common law to take steps short of arrest. Indeed, as Gleeson CJ said in Coleman v Power at [10], a citizen in whose presence a breach of the peace is about to be committed has a right at common law to use reasonable force to restrain the breach in an appropriate case. As Glanville Williams put it, in "Arrest for Breach of the Peace" [1954] Criminal Law Review 578 at 590:

"At common law the police may interfere in some limited ways, even with an innocent person, for the preservation of order. The leading case is Humphrey v Connor (1864) 17 Ir R 1, an Irish decision that has won approbation in English books. It was there held that a constable could commit what would otherwise have been an assault upon an innocent woman (taking an orange lily from her, which was causing offence to others), if that were the only way of preserving the peace."

20 The common law power to deprive an owner of possession in order to prevent a breach of the peace continues to be part of the common law of Australia. Thus the High Court spoke in Gollan v Nugent (1988) 166 CLR 18 at 45 of:

"those powers which a citizen has, be he a policeman or not, to prevent the commission of a crime or a breach of the peace. Rights arising from ownership would not prevail against those powers but they only come into being when there is an immediate threat of a physical kind ..."

21 The LEPRA expressly presupposes the continued existence of the police officer's powers at common law. Indeed, it was not suggested that statute authorised Sergeant Poidevin's conduct against Mr Semaan, which, absent lawful authority, amounted to an assault and battery. Section 4(1) states that the Act does not limit the functions, obligations and liabilities that a police officer has as a constable at common law, unless it otherwise provides expressly or by implication. Section 4(2) provides that without limiting subsection (1), nothing in the Act affects the powers conferred by the common law to deal with breaches of the peace. It is clear (and it was common ground on the appeal) that the effect of s 4 and s 201 was to impose an obligation on a police officer exercising a power to seize property, and (as is confirmed by the opening words of s 201(3)), that obligation applies even when the power to seize property derives from the common law. Section 201 is relevantly in the following terms:

"201 Supplying police officer's details and giving warnings

(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.

....

(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

....

(e) a power to seize any property, ...."

22 In the present case there was no evidence of compliance with s 201(1), whether at the time Mr Semaan was attempting to make a telephone call, or thereafter.

23 The primary judge said this (at [107]):

"The effect of s 201(2) of LEPRA is that the time for compliance does not arise until (or as soon as) it is not impracticable to comply. When it is first 'not impracticable', the duty arises. Failure to comply (or compliance) with the duty, if that time were later than the exercise of the power, has a retrospective effect on the status of the conduct. In so doing, the officers are protected from any 'unlawfulness' associated with the exercise of power."

24 Counsel for Mr Semaan did not attempt to defend that reasoning. With respect to the primary judge, it discloses error. The question addressed by the primary judge, whether the police officer has a defence to a tortious claim, does not arise on this appeal. The question which does arise is whether at the time Mr Semaan resisted Sergeant Poidevin's attempts to seize the mobile phone, the officer was acting in the lawful exercise of his duty. It was common ground on appeal that he had power to seize the phone, subject to his complying with s 201(1).

25 The time for compliance with s 201(1) depends upon whether or not it is practicable to do so before or at the time of exercising the power, or only at some later time. The explicit premise of the section is that there will be some occasions when a compulsive power referred to in s 201(3) may be exercised without being preceded or accompanied by the provision of information in accordance with s 201(1). In those circumstances, there is a lawful exercise of power or, to use the language of s 546C, the lawful execution by a police officer of his or her duty, notwithstanding the absence at that time of the information required by s 201(1). Counsel for the respondent accepted that in circumstances where it was not practicable to provide the s 201(1) information, the offence was committed at the time of the hindering or resistance.

26 Although there was no notice of contention, Mr Dennis maintained in writing and orally that the appeal should be dismissed on the basis that there was no evidence of Sergeant Poidevin turning his mind to the question whether or not it was practicable to comply with s 201(1) at the time he attempted to seize Mr Semaan's mobile phone. He submitted that it was "incumbent upon the prosecution to lead some evidence of the state of mind [of the police officer]".

27 The threshold difficulty with this submission is that it was not something raised before the Magistrate (and, at best, was only indirectly raised before the primary judge). It would have been helpful to the primary judge had the originating process identified the "question of law alone" which circumscribes the scope of the appeal. Nevertheless, a pure question of law, say, as to the elements of an offence, falls within the scope of an appeal that involves a question of law alone, even if it is something raised for the first time: Giddings v Director of Public Prosecutions [2008] NSWSC 169; (2008) 181 A Crim R 536 at [18]. The complexities noted by Allsop P in Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [29]-[31] in respect of appeals under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001, whose scope is limited by what the tribunal "decides" with respect to a matter of law, do not arise.

28 Although the submission is within the limited scope of the appeal created by s 52, it should not be accepted. The question of compliance with the duty imposed by s 201(1) turns upon an objective fact, namely, whether or not it is practicable to comply before or at the time of exercising the power. The Court was not taken to any authority to the contrary. It was suggested that the submission was reflected in the "general tenor of the common law". True it is that cases on the common law power to arrest for an imminent breach of the peace turned on the reasonableness of an honestly held belief (see the authorities referred to above), and true it is that in the present case, the Magistrate found that Sergeant Poidevin held such a belief and did so reasonably. But there is no basis in the text or purpose of the Act to extrapolate from those principles, which govern the existence of the power at common law, to add a further incident to the statutory duty imposed by s 201 when the common law power is exercised. It is readily understandable that the common law power of arrest in circumstances where a breach of the peace is imminent has been circumscribed by an honest and reasonable belief. Section 201 is an important safeguard to the exercise of coercive power. But if in fact it is not practicable to explain the basis of the officer's authority and the reason for the exercise of power, then there is no sound reason to imply as an additional incident of his or her duty under s 201 (and therefore as an additional element of the offence created by s 546C) that the officer subjectively formed that (uncommunicated) opinion.

29 Accordingly, neither of the bases supporting the order of the primary judge can be maintained.

30 Finally, the primary judge provided some further reasons why, in his opinion, the elements of the charge could not be established. At [84], his Honour said:

"[I]t is not resisting a police officer in the execution of duty to assert a right to possess one's own property, if that property is not to be used directly in the breach of peace or criminal conduct, other than in circumstances where the person is under arrest."

His Honour gave as an example the temporary seizure of a car in order to permit a police officer to attend a breach of the peace some distance away, as another instance where the police officer's power did not extend to property which was not to be used directly in the breach of the peace. His Honour said that in the present case, the mobile phone was not being used to breach the peace and added (at [94]):

"The confiscation of Mr Semaan's property, being the mobile telephone, was not a step necessary to prevent a breach of the peace, which is the circumstance upon which the defendant relies. The telephone call would be a communication. It had not yet been made. Even if it were made, the communication would not be a breach of the peace. Moreover, the property, being the mobile telephone, could not (assuming it were used otherwise than as a weapon, e.g. to hit someone) be property that would cause a breach of peace."

31 However, his Honour concluded (at [98]), with respect rightly, that those considerations lay outside the limited appeal raised by Mr Semaan.

32 That part of his Honour's reasoning amounted to obiter dicta which did not support any part of the order setting aside Mr Semaan's conviction. Appeals lie from orders, not from reasons. Nevertheless, particularly in view of what was common ground between the parties in this Court, it should be said that to the extent that his Honour's language might be taken to restrict the power to seize so that it was only available to seize a mobile phone about to be used as a weapon, rather than as a mobile phone, the power is not so limited. Neither party sought to defend such a proposition. To the contrary, the respondent brought to the attention of the primary judge the decision of Minto v Police [1987] 1 NZLR 374, which upheld a police officer's power temporarily to seize a loud speaker. The question was not whether the thing was to be used directly in the breach of the peace, but a question of reasonableness. Cooke P for the New Zealand Court of Appeal said:

"Whether the steps in the present case or in any other were or were not reasonable is a question of fact."

33 A better illustration of the width of the power is Humphries v Connor (1864) 17 IRCL 1, to which Glanville Williams referred, which was a case where the removal of a party emblem was held to be necessary for preserving the public peace and authorised at common law.

34 The common law power to arrest for imminent breach of the peace carries with it a power to take steps short of arresting a person, including temporarily seizing property. There is no need for the property itself to be used in the threatened breach of the peace. Glanville Williams rested the rule on the doctrine of necessity, which suffices for the purposes of this appeal. In this context of the exercise of coercive power, necessity means reasonable necessity: see Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at [31]-[32] (Gaudron, Gummow and Hayne JJ), [139] (Kirby J) and [189] (Callinan J). It can be useful to test a principle by reference to its possible application in other circumstances, but where as here the question will turn on the facts of the particular case, care is required before reasoning by reference to examples which, of necessity, provide only a limited matrix of facts: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [59]. There may be many occasions when the temporary seizure of a vehicle in the example given by his Honour would not be authorised by the common law power, but it would be rash to conclude that on no occasion could the hypothesized seizure be lawful; "every case must depend upon its exact facts", as Lord Parker CJ said in Piddington v Bates [1961] 1 WLR 162 at 169. All that matters for present purposes is that the findings of the Magistrate made it plain that it was reasonably necessary to seize, temporarily, Mr Semaan's mobile phone.

35 For those reasons I propose that there be a grant of leave to appeal, that the draft notice of appeal contained in the white folder stand as the notice of appeal in the proceedings and the further requirements of the rules with respect to filing and service of the notice of appeal be waived, that the orders made on 22 March 2013 be set aside and in lieu thereof the appeal pursuant to s 52 of the Crimes (Appeal and Review) Act be dismissed.

36 The Crown Advocate submitted that there were questions of general importance warranting the grant of leave to this Court. For that reason, and because some of the errors identified above were not attributable to the respondent, I propose that there should be no order as to the costs of the appeal to this Court, with the intent that each party bear his own costs of it: cf Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 at [86]. There is no reason to displace the normal order that costs follow the event at first instance.

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Amendments

11 October 2013 - "with" in second sentence deleted
Amended paragraphs: 5

Decision last updated: 11 October 2013