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Queensland Judgments
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KZT v Weapons Licensing Unit - Queensland Police Service

 

[2016] QCAT 49

CITATION:

KZT v Weapons Licensing Unit – Queensland Police Service & Commissioner of Police [2016] QCAT 49

PARTIES:

KZT

(Applicant)

 

v

 

Weapons Licensing Unit – Queensland Police Service

Commissioner of Police

(Respondents)

APPLICATION NUMBER:

GAR365-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

16 March 2016

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

19 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision made on 11 June 2014 by the first named respondent to revoke a firearms and concealable licence held by KZT is confirmed.
  2. The application GAR365-14 is otherwise dismissed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – Weapons Act 1990 (Qld) – where review of decision to revoke weapons licence – whether the applicant is an identified participant in a criminal organisation for the purposes of s 10B(2A) of the Weapons Act 1990 (Qld) – whether the applicant is a fit and proper person and/or contrary to the public interest to hold or possess a weapons firearms licence

Criminal Code Act 1899 (Qld), s 60A(3)

Criminal Code (Criminal Organisations) Regulation 2013 (Qld), s 2, 60A(3)

Migration Act 1958 (Cth), s 503A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 66

Vicious Lawless Association Disestablishment Act 2013 (Qld), s 4

Weapons Act 1990 (Qld), s 3, s 10B, s 30, s 142, s 142A, s 143, sch 2

MKN v Chief Executive of the Queensland Department of Justice and Attorney General (No 2) [2015] QCAT 452; cited

Smith v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 184

TS v Department of Justice and Attorney General - Industry Licensing Unit [2015] QCAT 505; cited

Vella v Minister for Immigration and Border Protection [2015] 230 FCR 61; cited

REPRESENTATIVES:

APPLICANT:

KZT represented by Mr S Bale, Solicitor of AW Bale & Son Solicitor

RESPONDENT:

Weapons Licensing Unit – Queensland Police Service and Commissioner of Police represented by Mr M Nicholson of Counsel instructed by Public Safety Business Agency Legal Services

REASONS FOR DECISION

  1. [1]
    KZT wants to keep his Firearms and Concealable Licence numbered XXXXXXXX and XXXXXXXX (weapons licence) issued pursuant to the Weapons Act 1990 (Qld) (the Weapons Act).
  2. [2]
    KZT has applied to the Tribunal seeking a review of a decision made to revoke his weapons licence.[1] The hearing of KZT’s application is a merits review to be conducted by the Tribunal pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) subject to the modified procedure prescribed in s 143(3) of the Weapons Act.[2]
  3. [3]
    In reviewing the decision to revoke KZT’s weapons licence the Tribunal is standing in the shoes of the decision-maker (the first named respondent) exercising the same powers and looking at the same material and any further material filed in support of the application, to arrive at the correct and preferable decision.
  4. [4]
    The material before the Tribunal includes information contained in a confidential affidavit of Katherine Louise Innes[3] referred to in these reasons as the confidential material. The Tribunal must not disclose the content of the confidential material to KZT because that material has been correctly categorised as ‘criminal intelligence’.[4]
  5. [5]
    The issue to be determined by the Tribunal on review is whether KZT is an identified participant in a criminal organisation for the purposes of s 10B(2A) of the Weapons Act.[5]
  6. [6]
    Mr Nicholson of Counsel for the respondents submits that if the Tribunal finds that KZT is an identified participant in a criminal organisation, KZT cannot hold or possess a licence pursuant to s 10B(2A) of the Weapons Act.[6] 
  7. [7]
    Mr Nicholson also submits that if the Tribunal considers there is insufficient evidence to be satisfied that KZT is an ‘identified participant’ for the purposes of s 10B(2A) then the Tribunal can consider[7] that the criminal intelligence information is of such a nature that it is ‘not in the public interest and/or that [KZT] is not a fit and proper person’ to hold or possess a weapons licence.[8]
  8. [8]
    Mr Nicholson submits that in this case the Tribunal can be satisfied that the confidential material demonstrates that KZT is an ‘identified participant’ in a criminal organisation as defined by the Criminal Code Act 1899 (Qld) (the Criminal Code) and the Weapons Act.[9]

Is KZT an identified participant in a criminal organisation?

  1. [9]
    For the purposes of s 10B(2A), KZT is not a ‘fit and proper person’ to hold a licence if he is an ‘identified participant in a criminal organisation’. An ‘identified participant’ is defined under the Weapons Act as follows:

identified participant, in a criminal organisation, means a person who is identified by the commissioner as a participant in the organisation within the meaning of the Criminal Code, section 60A(3).[10]

  1. [10]
    Relevantly s 60A(3) of the Criminal Code defines ‘participant’ in a criminal organisation as follows:[11]

participant, in a criminal organisation, means—

(a) if the organisation is a body corporate—a director or officer of the body corporate; or

(b) a person who (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the organisation; or

(c) a person who (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the organisation; or

(d) a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way; or

(e) a person who takes part in the affairs of the organisation in any other way;

  1. [11]
    In relation to the meaning of ‘fit and proper person’ and ‘the public interest’, there is no definition in the Weapons Act. In TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2)[12] the Tribunal summarised some of the relevant cases that have considered the meaning of ‘fit and proper person’. The relevant extract from TS’s case is as follows (citations not included):[13]

In Smith v Commission of Police, NSW Police Force and Anor [2014] NSWCATAD 184 [citation added] Senior Member Montgomery said ‘fitness and propriety’ is a question of fact to be determined objectively based on all of the evidence… In Smith’s case, reference was made to AJO v Director-General Department of Transport [2012] NSWADT 101 [citation added] because it provides an overview of relevant authorities that have considered the meaning of ‘fit and proper’. Some of the cases referred to in AJO’s case are now summarised:

  • Whether a person is fit and proper is ‘one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration’
  • The concept of ‘fit and proper’ must be looked at in the context of the activities that the person is or will be engaged. ‘…the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general public will have confidence that it will not occur’. Although not an exhaustive list, character (indication of ‘likely future conduct’) or reputation (indication of public perception as to ‘likely future conduct’) may be ‘sufficient’ to find a person is not ‘fit and proper’ to undertake certain activities…
  • The expression ‘fit and proper’ must be given the ‘widest scope;’ and determined upon its own circumstances…
  • The applicant must show not only that he is ‘possessed of a requisite knowledge of the duties and responsibilities evolving upon him’ as the holder of a particular licence but must also show he has ‘sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…’…
  • Fitness and propriety are flexible concepts’. It involves an assessment of the person’s ‘knowledge, honesty and ability in the context of the role they are seeking to undertake…’…
  • The discretion vested in determining whether a person is ‘fit and proper’ must be exercised to ‘give wide scope for judgement and allow broad bases for rejection’.
  1. [12]
    In MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2)[14] the Tribunal summarised the relevant ‘public interest’ cases also referred to in Smith v Commissioner of Police, NSW Police Force and Anor.[15] The relevant extract from MKN’s case is as follows (citations not included):[16]

In Smith’s case, Senior Member Montgomery said that the ‘public interest’ is designed to give the ‘broader interests of the community priority’ over the private interests… Senior Member Montgomery summarised relevant cases from courts and tribunals that have considered the concept of the ‘public interest’. Some of those cases are now summarised as follows:

  • The ‘public interest’ is ‘a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities.... The interest is therefore the interest of the public as distinct from the interest of an individual or individuals’.
  • The ‘public interest’ is ‘an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual’.
  • An applicant’s personal interests ‘in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry’.
  • The “'public interest'” allows…for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system’.
  1. [13]
    The Tribunal relies on the summary in the cases of TS and MKN in considering the meaning of ‘fit and proper person’ and ‘the public interest’ in this matter.
  2. [14]
    KZT did not attend the hearing in person. Mr Bale, Solicitor represented KZT in his absence. Mr Bale refers the Tribunal to a statement and material filed by KZT.[17] Mr Bale submits that there has been a denial of natural justice because KZT is unable to properly respond to the decision that he is an identified participant in a criminal organisation. Mr Bale says the Tribunal has already determined that information relied upon being the criminal intelligence information (contained in the confidential material) is not to be disclosed to KZT.
  3. [15]
    In his statement dated 10 December 2014, KZT states that he received correspondence form the Queensland Police Service dated 14 May 2014 that ‘seems to suggest’ that information was received that he had ‘been associating with a Criminal Motorcycle Gang [CMG]’.[18] KZT states no material ‘in support of this accusation’ has ever been disclosed to him and he has therefore been unable to ‘respond to such an accusation’ without particulars of the accusation made against him.[19]
  4. [16]
    KZT states that he has held a weapons licence for over 30 years ‘without incident’ and has never been convicted of a weapons offence or of any offences associated with the ‘use of violence in any form’.[20] He states he has always been gainfully employed, is a member of a local sporting shooters club and has always been ‘responsible’ with regards to the ‘possession and operation of all firearms’ in his possession and under his control.[21] KZT states that he has never been found to be in breach of any regulatory requirements for storage and use of his firearms and has not been provided with ‘any evidence’ to support the ‘assertion’ he is a member of a CMG.[22]
  5. [17]
    KZT also relies on an affidavit prepared by a solicitor of AW Bale & Son Solicitor sworn on 12 November 2014.[23] The affidavit attaches a copy of documents that ‘passed between’ KZT and the first named respondent. The documents include written correspondence dated 22 May 2014 sent by KZT’s former solicitors, Taylor Solicitors. That letter refers to the first named respondent’s correspondence dated 14 May 2014 to KZT that refers to ‘information’ received that KZT has ‘been associating with a [CMG]’.[24]
  6. [18]
    In the correspondence dated 22 May 2014, Taylors Solicitors provide information in response (about KZT) addressing the issue of ‘why he should be considered a fit and proper person’ to hold a firearms licence, and ‘in particular why it is in the public interest for him to have such a licence’. In the correspondence dated 22 May 2014 Taylor Solicitors also refer to KZT’s employment and criminal history and submit KZT is ‘an honest and law abiding citizen’. A relevant extract from the letter is as follows:[25]

Our client [KZT] is an honest and law abiding citizen and has been in a de facto relationship with his partner for the previous fourteen (14) years.

He has never been out of work and has continued to pay taxes and be a productive member of the community.

He has possessed a weapons licence for over thirty (30) years in keeping with his interests referred to above and is a member of the [local] Sporting Shooters Club.

Our client’s circumstances have not changed, rather the legislation has, and he finds himself caught up in draconian legislation that makes assumptions about his intentions and affiliations without any evidence.

Our client recognises that having a weapons licence requires legislative oversight but he also fears that the demonisation and harassment that he  has personally experienced over the years without any justification whatsoever will result in him being denied a weapons licence to pursue his recreational pursuits and interests.

  1. [19]
    The information relied upon by the respondents includes an affidavit of Andrew Smith, Inspector of Weapons Licensing, Queensland Police Service sworn 17 April 2015 and the confidential material.[26]
  2. [20]
    Inspector Smith states in his affidavit that he is the delegated ‘authorised officer’ responsible for making decisions as to whether a person is ‘fit and proper’ (to hold a licence).[27] Inspector Smith states that he issued a ‘show cause’ letter to KZT dated 14 May 2014 in which he advised KZT that ‘information available to [him] suggested he was a member of, or associated with, a declared criminal organisation’.[28]
  3. [21]
    Inspector Smith states that he received a letter in response from Taylors Solicitors dated 23 May 2014 and he (Inspector Smith) sent an email to Taylors Solicitors on 29 May 2014 ‘specifically seeking submissions as to whether [KZT] accepted that he was a member of a criminal organisation’.[29]
  4. [22]
    Inspector Smith states that he later determined on 11 June 2014 that KZT’s firearms licence should be revoked and a copy of the revocation notice was served on 16 October 2014.[30] The Information notice dated 11 June 2014 issued to KZT and attached to the affidavit of Inspector Smith refers to the legislation, relevant authorities and the ‘show cause notice dated 23 April 2014’ and states ‘I noted from information available to an authorised officer you have a long and ongoing association with [a CMG]’.[31]
  5. [23]
    Inspector Smith also states that he has ‘subsequently become aware’ that KZT ‘has been assessed as an identified participant of a criminal organisation’. Inspector Smith states that ‘this means [KZT] is deemed not to be a fit and proper person to hold a weapons licence.[32]
  6. [24]
    The Tribunal has considered KZT’s statement and material filed in support of his application. The Tribunal has also considered the material relied upon by the respondents including the confidential material that is also categorised as criminal intelligence material.
  7. [25]
    KZT’s statement and material does not assist the Tribunal in determining the issue of whether KZT is an identified participant in a criminal organisation for the purposes of s 10B(2A) of the Weapons Act. There is information contained in the confidential material that is relevant to the issue of whether KZT is an identified participant in a criminal organisation and whether KZT is a fit and proper person and/or it is in the public interest for KZT to hold or possess a weapons licence.
  8. [26]
    The Tribunal is satisfied the correct and preferable decision is that KZT is an identified participant in a criminal organisation because of the confidential material. That material contains information that is as determined in the Tribunal’s earlier decision ‘a collation of confidential information gathered from different sources and is therefore criminal intelligence which relates to KZT’.[33]
  9. [27]
    KZT’s statement and material does not assist the Tribunal in determining whether KZT is a fit and proper person and/or it is not in the public interest to hold or possess a weapons licence.
  10. [28]
    KZT says he is a member of a local sporting shooters club and has always been responsible with the possession and operation of his firearms in his possession and under his control. KZT also says that he has not been provided with any evidence to support the assertion that he is a member of a CMG.
  11. [29]
    There is information before the Tribunal that is relevant to the issue of whether KZT is a fit and proper person and whether it would be contrary to the public interest for KZT to hold or possess a weapons licence. The information is contained in the confidential material that the Tribunal has already determined is criminal intelligence material and should not be disclosed to KZT as provided under s 142A of the Weapons Act.
  12. [30]
    The Tribunal has also considered the principles and objects of the Weapons Act that provides weapon possession and use is ‘subordinate to the need’ to ensure public and individual safety.[34] Consistent with other cases that have considered the concept of ‘public interest’ and the objects of the Weapons Act the Tribunal must not place KZT’s personal interests in holding a weapons licence above the interests of the public and individual safety of people in the community.[35] The ‘public interest’ must not be outweighed in this case by any benefit that may be gained by KZT in participating in his sporting and recreational pursuits and any members of the local sporting shooters club who may also benefit from KZT’s active participation in the club and his sporting and recreational pursuits.
  13. [31]
    The correct and preferable decision in this matter having considered all of the material including the confidential material is that KZT is not a fit and proper person and/or it is not in the public interest for KZT to hold or possess a weapons licence under the Weapons Act.

Has there been a denial of natural justice to KZT?

  1. [32]
    The Tribunal has considered KZT’s submission advanced by Mr Bale at the oral hearing that there has been a denial of natural justice because the confidential material has not been disclosed to KZT and he therefore is unable to properly respond to the material.
  2. [33]
    The Weapons Act contains specific provisions about the hearing and determination of a matter where there is criminal intelligence information. The Tribunal has determined that the review proceeding is a merits review to be conducted subject to the modified provisions prescribed in s 143(3) of the Weapons Act. Relevantly, s 142A of the Weapons Act provides that in reviewing the decision the Tribunal must ensure that it does not ‘disclose the content of any criminal intelligence on which the decision is based’ and further provides that to prevent the disclosure it must ‘receive evidence and hear argument in the absence of the public, the appellant or applicant for review and the appellant’s or applicant’s lawyer or representative’.
  3. [34]
    It was determined in Vella v Minister for Immigration and Border Protection[36] that where there is information which satisfies the criteria under the legislation, in Vella’s case the Migration Act 1958 (Cth), the requirement that would exist in affording natural justice is excluded.
  4. [35]
    In Vella’s case the Full Court of the Federal Court of Australia considered whether the requirements of natural justice required the Minister to disclose relevant ‘adverse information’ (confidential information provided under s 503A) to a person before deciding whether to revoke a decision to cancel a visa under s 501C(4) of the Migration Act 1958 (Cth). In Vella’s case the Minister received information from law enforcement agencies that fell under the protection of s 503A and was treated as confidential information. The Minister did not disclose the confidential information to the visa holder (Mr Vella) who was at the time the national president of the Rebels Motorcycle Club.  The Minister decided to cancel Mr Vella’s visa pursuant to s 501(3) of the Act and signed a statement of reasons for making the cancellation decision. The reasons recorded that the Minister reasonably suspected that Mr Vella did not pass the character test under s 501(6)(b) of the Act on the basis that Mr Vella has an association with a group, organisation or person which the Minister reasonably suspects has been involved in criminal conduct. The reasons recorded that the Minister’s ‘reasonable suspicion’ was based on information provided by a gazetted agency which is s 503A protected information. That information was protected from disclosure under s 503A and Mr Vella was not provided with any particulars of the information and was not given access to the information. The relevant extract form Vella’s case is as follows:[37]

…in the context of the statutory scheme, s 503A is not intended to entirely exclude natural justice. It only operates to exclude one aspect of natural justice (the notice rule) and only in particular circumstances (where the information which would otherwise need to be disclosed falls within s 503A). Section 503A is also intended to operate where applicable, across the entire statutory scheme. That is apparent from the breadth of the language in s 503A(6). In these circumstances, the absence of any express statement concerning the exclusion of natural justice is explicable. Whilst it may have been preferable for there to be an express reference in s 503A to the fact that the section, where applicable, may operate to exclude natural justice, nonetheless there are in s 503A plain words of necessary intendment The text is sufficiently clear to found a conclusion that the section can operate to exclude requirements to disclose which would otherwise be implied by the requirements of natural justice.

…Where the Minister has information which satisfies the criteria in s 503A(2)(b), s 503A(2)(c) and (6) operate to exclude the requirement that would otherwise exist, as a consequence of the implication of the principles of natural justice, that the Minister disclose that information before making a s 501C(4) decision. In Mr Vella’s case, therefore, the Minister was not required to disclose to Mr Vella the information in attachments A to E if the Issues paper, it having already been held that the information in those documents is protected information for the purposes of s 503A of the Act….

  1. [36]
    Similarly, in this case the Tribunal is not required to disclose the confidential material to KZT because (as determined) the material has been correctly categorised as criminal intelligence material. As stated in Vella’s case the legislation (in this case the Weapons Act), operates to exclude one aspect of natural justice in circumstances where material or information falls within a certain section of the legislation (namely s 142A). The requirement that would otherwise exist to disclose all material relied upon by the decision-maker and Tribunal on review including confidential material before making a decision to revoke a person’s entitlement, in this case KZT’s weapons licence, is excluded because of the relevant sections of the Weapons Act. This is because s 142A of the Weapons Act requires the Tribunal not to disclose the content of the criminal intelligence information (contained in the confidential material) on which the decision is based.

What is the correct and preferable decision?

  1. [37]
    The Tribunal standing in the shoes of the decision maker must arrive at the correct and preferable decision having considered all of the material including the confidential material. The Tribunal must not disclose the content of the confidential material because it is criminal intelligence material and the Weapons Act provides that such material must not be disclosed.
  2. [38]
    The Tribunal has considered KZT’s material and the confidential material and is satisfied for the purposes of s 10(2A) of the Weapons Act that KZT is an identified participant in a criminal organisation.
  3. [39]
    The Tribunal must not place KZT’s personal interests above the interests of the public or people in our community because the objects of the Weapons Act provide that the interests of public and individual safety are more important than KZT’s possession and use of a weapon.
  4. [40]
    The Tribunal is also satisfied for the purposes of s 10B that KZT is not a fit and proper person and/or it would be contrary to the public interest for KZT to hold or possess a weapons licence under the Weapons Act because there is confidential material that identifies KZT as a participant in a criminal organisation.
  5. [41]
    The correct and preferable decision is to confirm the decision made by the first named respondent to revoke KZT’s weapons licence and otherwise dismiss the application to review a decision.

Non-publication orders

  1. [42]
    The Tribunal has previously determined that the confidential material has been correctly categorised as criminal intelligence material.[38] The Tribunal made an order pursuant to s 66 of the QCAT Act prohibiting the publication of the contents of the material to any person other than the respondent, the Commissioner of Police, and any information that may enable KZT to be identified.
  2. [43]
    It is therefore appropriate that the Tribunal in these reasons de-identify the name of the applicant.

Footnotes

[1] Decision made by an authorised officer for Weapons Licensing - Queensland Police Service on 11 June 2014.

[2] QCAT decision made on 30 June 2015.

[3] Exhibit 4.

[4] For the purposes of s 142A of the Weapons Act, see QCAT decision and reasons made on 2 December 2015.

[5] QCAT directions made by consent on 4 March 2015.

[6] Outline of submissions on behalf of the respondent filed on 16 March 2016, [9]-[16].

[7] Under s 10B(1)(ca) and/or (d) of the Weapons Act.

[8] Outline of submissions on behalf of the respondent filed on 16 March 2016, [17].

[9] Ibid, [15]. See Criminal Code, s 60A(3).

[10] Weapons Act, Schedule 2.

[11] Criminal Code, s 60A(3).

[12] [2015] QCAT 505.

[13] TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505 at [12].

[14] [2015] QCAT 452.

[15] [2014] NSWCATAD 184.

[16] MKN’s case, [14].

[17] Tendered at the hearing without objection by Mr Nicholson on behalf of the respondents and marked Exhibits 1 and 2.

[18] Exhibit 1, [2].

[19] Ibid, [3].

[20] Ibid, [11].

[21] Ibid, [13].

[22] Exhibit 1, [14]-[15].

[23] Exhibit 2.

[24] Exhibit 2, attachment marked ‘EPG1’.

[25] Ibid.

[26] Exhibits 3 and 4.

[27] Exhibit 3.

[28] Ibid, [7].

[29] Exhibit 3, [10], see attachment page 000108.

[30] Ibid, [12].

[31] Ibid, see attachment page 000109.

[32] Ibid, [13].

[33] See Tribunal’s decision made on 2 December 2015, [26].

[34] Weapons Act, s 3(1).

[35] See TS’s case at [12], MKN’s case at [14] and the Weapons Act, s 3.

[36] Vella v Minister for Immigration and Border Protection [2015] 230 FCR 61. The High Court of Australia dismissed an application for special leave to appeal the decision of the Full Court of the Federal Court on 16 October 2015.

[37] Vella v Minister for Immigration and Border Protection [2015] 230 FCR 61, [83]-[84].

[38] QCAT decision made on 2 December 2015.

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Editorial Notes

  • Published Case Name:

    KZT v Weapons Licensing Unit – Queensland Police Service and Commissioner of Police

  • Shortened Case Name:

    KZT v Weapons Licensing Unit - Queensland Police Service

  • MNC:

    [2016] QCAT 49

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    19 Apr 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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