Supreme Court New South Wales Medium Neutral Citation: R v Smith [No 3] [2011] NSWSC 728 Hearing dates: 29 June 2011 Decision date: 30 June 2011 Jurisdiction: Common Law - Criminal Before: BUDDIN J Decision: Application refused Catchwords: Criminal law - application for directed verdict - Crown case circumstantial in nature - applicable principles Cases Cited: Doney v The Queen (1990) 171 CLR 207 R v El Masri (No 2) [2010] NSWSC 1327 R v JM (2010) 202 A Crim R 465 R v JMR (1991) 57 A Crim R 39 R v PL [2009] NSWCCA 256 R v R (1989) 18 NSWLR 74 Category: Interlocutory applications Parties: Regina Darren Paul Smith Representation: Counsel: C Everson (Crown) D Yehia SC (Accused) Solicitors: S Kavanagh (Solicitors, Director of Public Prosecutions) Legal Aid Commission of NSW File Number(s): 2009/50517 Judgment Introduction 1The accused, Darren Paul Smith, is charged with having murdered Russell Lyons at Fairfield on 3 June 1995. At the end of the Crown case, Ms Yehia SC who appears on behalf of the accused, made an application that I direct the jury to acquit the accused. On 30 June 2011 I refused the application. What follows were my reasons for doing so. 2The deceased's body was located in a carpark at the end of a laneway which runs off Smart Street in Fairfield at about 8.40 am on 3 June 1995. According to Dr Ellis, who conducted the post-mortem, his death was caused by head injuries with alcohol toxicity said to have been a contributing factor. The deceased was fully clothed but his shoes and wallet were missing. Despite a lengthy police investigation, it was not until 7 June 2009 that the accused was arrested. Indeed, he only came to the attention of investigating police when a DNA profile matching his profile connected him to the crime scene. His DNA profile was only entered on the national database in 2008 following his apprehension in Queensland on a trivial matter. Following analysis, a match was made between his profile and DNA material that was located inside each shoe of a pair of Adidas running shoes. The shoes themselves were located on 5 June 1995 a short distance from where the deceased's body was found. Also found on the shoes was blood staining which matched the deceased's DNA profile. A DNA profile matching that of the accused was also located in the area of the rear right pocket of the jeans which the deceased was wearing when his body was discovered. The Crown case is that the accused killed the deceased during the course of robbing him of his shoes and wallet. The Crown also asserts that the Adidas shoes had been worn by the accused but had then been discarded when the accused realised that the deceased's blood has found its way onto them as a result of the fatal attack. 3The Crown alleges that some hours prior to the discovery of the deceased's body, the accused had attempted to steal the deceased's wallet during an altercation which had occurred on The Crescent, Fairfield at about 3.30 am. That incident was witnessed by the deceased's friends and drinking companions, John Byrne and Ian Cross. Their evidence was to the effect that they had been out at various drinking establishments that evening in the company of the deceased and that they were making their way home at the time that the incident occurred. The uncontradicted evidence is that each of them was extremely intoxicated at the time. Both gave evidence that the deceased had crossed The Crescent when they heard him call out words to the effect of "He's got my wallet". Their evidence is that they then ran across the road in order to assist the deceased. His assailant was described by them as being an Australian with a goatee beard. Shortly thereafter three males described as being of "Islander" appearance joined in the altercation. The Crown case is that the deceased eventually ran from the scene of the altercation whereupon he turned into Smart Street. From there he ended up in the carpark to which I referred earlier. It was at that location, the Crown asserts, that the deceased received the fatal injuries having been pursued there by the accused. The relevant legal principles 4In R v R (1989) 18 NSWLR 74 Gleeson CJ, with whom Maxwell and Wood JJ agreed, determined that a trial judge does not have the power to direct a verdict of acquittal when the trial judge assesses that the evidence is such that a verdict of guilt based upon it would be unsafe and unsatisfactory. 5In Doney v The Queen (1990) 171 CLR 207 the High Court approved that statement of principle. The Court went on to say: It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. [at 214-5] 6In R v JMR (1991) 57 A Crim R 39 the question which was posed for the Court's determination was "is a trial judge entitled to direct a jury to enter a verdict of acquittal at the end of a Crown case based on circumstantial evidence on the basis that the Crown could not negative all reasonable inferences which were inconsistent with the guilt of the accused?" (at 40) 7Lee CJ at CL, with whom Carruthers and Finlay JJ agreed, said: On the view then that a judge in a case of circumstantial evidence cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated, the present case requires that the question asked must be answered in the negative. (at 44) 8For a recent analysis of the relevant authorities see R v JM (2010) 202 A Crim R 465 per Refshauge J at 472-3. 9For completeness I should observe that Ms Yehia referred in her submissions to a number of other decisions, including R v PL [2009] NSWCCA 256 and R v El Masri (No 2) [2010] NSWSC 1327. I do not regard it as necessary to make any further reference to those decisions because they each proceeded upon the basis of the well-settled principles to which I have just referred. Moreover, each of those decisions ultimately turned upon an analysis of the evidence adduced in the particular case. The accused's submissions 10In advancing the application, counsel for the accused relied upon various parts of the evidence given by three of the Crown witnesses. The first of those witnesses was Ian Cross, who as I have said, witnessed the events on The Crescent. The parts of his evidence upon which reliance was placed are set out below: Q. Your group, with these Maori three, are still in the area you say of the Crazy Prices store? A. Yes, we were all arguing. Q. You, John Byrne, Russell Lyons continued to argue with the three Maori people? A. Yes. Q. It was then that that Maori fellow with the dreadlocks assaulted Russell? A. Yes. Q. He punched him a couple of times? A. Yes. Q. And you could see that Russell was hurt and bleeding? A. Yes. Q. Is the next thing that you saw of Russell was that he was further down The Crescent near the corner where The Crescent intersects with Smart Street? A. Yes. Q. So you look up, you see Russell Lyons down near that corner. Correct? A. Yes. Q. And the islander with the dreadlocks is with Russell near that corner? A. Yes. Q. You and John Byrne are still up near the area of Crazy Prices store? A. Yes. Q. And you are still confronted by the other two Maori men. Is that right? A. That's right. Q. There was an argument still going on between you and Mr Byrne and the two Maori Men. Correct? A. Correct. Q. When you looked down to the corner of The Crescent and Smart Street and saw Russell Lyons with the Maori man with the dreadlocks, you could see that the Maori man with the dreadlocks was belting into Russell Lyons? A. Yes. Q. And it was quite a savage attack by the Maori man with the dreadlocks on Russell, wasn't it? A. Yes I think so. Q. You could see that Russell was bleeding? A. Yes, he was bleeding before he left us. 11The second witness was Dr Ellis. The parts of his evidence which are relied upon are set out below: Q. If in this case that (sic) the subdural haemorrhage was caused as a result of somebody punching the deceased, could one punch, one single punch cause that type of injury? A. Yes. Q. What sort of force would be required if it was one punch that caused that subdural haemorrhage? A. A bit difficult to be specific because it's not necessarily the amount of force, but the way it's delivered. Because if I go back to the analogy or the description of the head moving and the brain moving, what you actually have is a (sic) like a rotating motion of the head. The head is obviously fixed on the neck so it can move essentially forwards and backwards, a little less from side to side. It can't move up and down, so it rotates backwards and forwards. If the force applied causes the head to move backwards and forwards, that's the force that's most likely to give you a subdural. Clearly, if it was a blow, a punch causing that, then clearly the bigger the blow in that direction, the more likely you are to get a subdural haemorrhage. If you were to strike the head from the side, the motion is not quite the same and you're much less likely to get haemorrhage. It's not so much the amount of the force, but it's the way the force is delivered. Q. So if it was a punch that was delivered to the face of the deceased, could that be sufficient to cause a subdural haemorrhage? A. Yes it could. Q. Is it reasonably possible that the deceased could have suffered the subdural haemorrhage but not immediately become unconscious? A. Yes it is. It depends on what's caused the subdural. If a big punch caused the subdural, that big punch may have delivered enough force to actually cause the brain to malfunction by itself, effectively independent of the actual haemorrhage. In which case unconsciousness would occur pretty well straight away. If unconsciousness occurs because of the subdural alone, the subdural can take some time to develop and so we see this in boxers, you see this in other people, they may suffer trauma but then over a period of time which may be hours, they get increasing drowsiness and increasing headache and ultimately, they become unconscious and die. The only thing you find at autopsy is subdural haemorrhage. Clearly it can take a long time. There's no way by looking at the haemorrhage, to say how long that took. I don't know how long this haemorrhage took to develop, it could have happened in a small space of minutes, could have happened in half an hour or so, maybe even longer. Q. (Dr Ellis shown exhibit A.) What you're being shown in exhibit A is a map of the area depicting The Crescent which is one of the main streets in Fairfield? A. Yes. Q. And also depicting the location of the car park at the end of the lane way where Mr Lyons was found? A. Yes. Q. I think you yourself attended at that location, so you're familiar with it? A. I did, yes. Q. Just to get your bearings, do you see on exhibit A that you have there, an area that's depicted by a red star? A. Yes. Q. And it is across the road from an area that is labelled "arcade"? A. Yes I can see that. Q. Then there is a red dotted line that heads towards The Crescent? A. Yes. Q. And do you see then that there is a road that intersects with The Crescent which is Smart Street? A. Yes. Q. The red dotted line continues on into Smart Street, into the laneway and into the car park where the deceased was found? A. Yes. Q. Firstly, keeping those locations in mind, I want to put this scenario to you Dr Ellis, if there is evidence that the deceased was punched twice at the location where we see the red star? A. Yes. Q. And we also have evidence that the deceased was punched on a further two occasions at the corner of The Crescent and Smart Street? A. I understand. Q. If any of those or one of those punches caused the subdural haemorrhage, is it reasonably possible that the deceased could have made his way into the car park area and collapsed there? A. By "made his way", you mean walk or run? Q. Walked or run? A. Yes. Q. Is that a reasonable possibility? A. Yes. Q. Is it reasonably possible that having made his way into the car park area, that he could have fallen to the ground in that area causing the broken nose? A. Yes. Q. I think you saw the deceased in situ with the pooling of blood underneath him? A. Yes. Q. And the blood that you saw, could that be consistent with the broken nose? A. You said the blood I saw. Do you mean blood on the body, blood on the ground or on the wall? Q. Blood on the ground? A. Because there was some blood on the wall and I made a brief reference to it. It wasn't my job to do a detailed examination of it. But it was certainly on the ground. The other thing we must not forget he was face down and obviously like that since death. That will cause a pooling of blood and if there's an injury, that can continue to ooze even if the heart has stopped. It's certainly consistent with a broken nose, yes. Q. Is it reasonably possible that the deceased fell on to the ground in the car park causing the broken nose and bleeding, that he then could have tried to lift himself to get up and fallen again in that area? A. I couldn't exclude that possibility, yes. 12The third and final witness was Detective Flippence, who gave evidence in which he interpreted blood spatter patterns on the ground and on the wall adjacent to where the deceased's body had been located. The parts of his evidence which are relied upon are set out below: Q. I give you this scenario. The deceased was bleeding to the face and has simply fallen to the ground without any involvement of any second party. Is that consistent with the blood spatter pattern that you represented in this photogrammetry plan? A. It may be. Q. Can you explain why it may be? A. Well, the deceased would have to have blood on his face and the deceased falling on the ground represents a blood event which is a sudden downward force. Q. If there was an absence of blood on the front of the jumper of the deceased but large amounts of blood on the arm, does that affect your answer? A. Yes. Q. How A. I would say for somebody to be standing there and bleeding to a medium to large extent on his face he would almost certainly have blood underneath the chin and collar and upper chest area of the jumper. The blood on the arms is contact staining and is as a result of the deceased, whilst bleeding, having his arms underneath his face as he does when he was found. Q. The jumper itself you haven't seen? A. No. Q. It's the photos that you have seen? A. Yes. Q. Could you have a look at photograph 76, please. Photograph 76 shows the front of the jumper worn by the deceased. This is one of the photographs you have looked at, is it? A. Yes. Q. What can you say about the staining, if anything, on the front of the jumper as we can see it there? A. The staining is minimal. There is an area up on the right shoulder between the collar and the top of the arm which is a contact stain. And on the upper left chest area there is, what I can easily say is a squarish type contact stain, and there is some minor staining underneath those areas but nothing major. Q. Any of those stains caused by blood dripping down the face just as a result of gravity. That is, from the deceased having been in a standing position and bleeding on to the front of the jumper? A. One or two may but the rest are contact staining. ... Q. Ex G1 is a smaller more manageable photocopy. Use either of the two if you need to answer this. That wall that was in front of the deceased's head has that 'no parking' sign on it, the spatter pattern that was there, what was the blood event that caused that pattern? A. On the wall, the blood event was as a result of the sharp downward force of the deceased's head on the concrete. Q. Are you able to say what kind of force would have created that pattern? A. It could have been a number of things. Could have been somebody stomping on the back of the deceased's head, could have been the deceased lying down trying to get up losing consciousness and coming back down on the concrete, could have been the deceased falling. As long as he had the blood that was evident on his face and/or on the concrete underneath. ... Q. Are those two areas that you've described consistent with a movement by the deceased himself, a movement of his arms himself, if the sleeves of his jumper were blood stained? A. The stain under the left elbow moving in an upward direction I would say is consistent with that. But the stain on the right, I can't say whether it is consistent with him moving or him being moved. That's what I'm saying. Q. So it could be you can't exclude the reasonable possibility that the stain on the right was made as a result of movement by him? A. That's correct, yes. Q. That's one of two explanations? A. Yes. Q. But it could be - it's reasonably possible that both the wiped, if I can call them wiped stains that you saw to the left and to the right of his elbows were caused by his own movement? A. It could have been. Q. That would have had to have been the obviously after he was bleeding? A. Yes. Q. Because it would mean that his sleeves would have had to have been bloodied, the sleeves of the jumper would have been bloodied; correct? A. Yes. Q. Can I as (sic) you this Detective Flippence: If the deceased had fallen to the concrete as a result of a sudden movement downward and caused an injury to his face that bled, if he was there for a time so that he was bleeding and the blood pooled on to the ground underneath him and he then tried to move himself so that he could get up and fell again on to the concrete ground, could that have caused the blood to spatter that we see on the ground immediately in front of him and on the Besser block wall? A. Yes. 13The significance of the evidence of Ian Cross, so it was submitted, was that "the only direct evidence of an assault upon the deceased is that the Islander male punched the deceased a couple of times near Crazy Clints and again at the corner of Smart Street and the Crescent." (emphasis added) 14It was then submitted that the evidence of Dr Ellis demonstrated that he was unable to exclude the reasonable possibility of each of the following propositions: * the punch or punches inflicted upon the deceased on The Crescent could have caused the subdural haemorrhage (which it seems was the fatal injury); * the deceased may not have fallen into an unconscious state immediately upon being punched; * the deceased may have then made his way to the car park; * the deceased may have fallen on to the concrete thereby causing the fracture to his nose; * the fracture to the nose may have caused the pooled blood which was underneath the deceased's face; and * the deceased may have tried to raise himself up before once again falling onto the concrete. 15It was submitted that Detective Flippence had accepted that it was reasonably possible that the blood spatter patterns could be explained upon the basis of the scenario which I have just outlined. 16The ultimate submission which was advanced on behalf of the accused was couched in the following terms: In the present case, it is submitted that there is positive evidence adduced in the Crown case that the deceased was assaulted by another person and that the blow inflicted was capable of causing the fatal injury. The Crown case, taken at its highest, is that the accused is the Australian male with the goatee, that he wore the Adidas shoes, and that he robbed the deceased of his shoes and wallet. However, there is no evidence upon which a jury, properly instructed, could find that an act of the accused caused the fatal injury [that is, as opposed to the assault upon the deceased by the Islander male]. The Crown's submissions 17The Crown Prosecutor referred to other parts of the evidence given by Ian Cross concerning his observations of the deceased having been struck. He relied upon the following parts of his evidence in chief: Q. What happened then? A. I think Russell got hit then. Not sure. Q. Do you remember who it was that hit Russell? A. The bloke with the dreadlocks. Q. Do you remember how he hit Russell? A. No, I don't. Q. Do you know where he hit Russell? By that I mean, what part of Russell's body was hit? A. I think his face. Q. Where was Russell standing, relative to that Crazy Prices' store you told us about when he was hit by the man with the dreadlocks? A. I think he was in front of Crazy Prices. ... Q. So, after Russell was hit, what happened next? A. Just arguing and that and then I noticed Russell was up on the corner of the next pub , that Crescent pub. Q. That's the name of the pub, is it, The Crescent? A. Yes, on the corner. Q. Did you see Russell doing anything up at the corner? A. Trying to get away. Q. From who? A. The dreadlocks bloke. Q. And did he get away from the bloke with the dreadlocks? A. Yes, he did. Q. Where did Russell go? A. Around the corner. Q. Did you see him again? A. No, I didn't. Q. The man with the dreadlocks, what happened to him? A. Came back to us. Q. Where was the man with the goatee beard? A. Don't know. Q. Did you see him again that night? A. No, I didn't. 18The Crown Prosecutor also relied upon the following parts of his evidence given in re-examination: Q. You said that Russell was bleeding "before he left us". From where was he bleeding? A. His mouth. Q. How much blood was there coming from his mouth? A. Just like, you know, when you cut your lip and it just bleeds down. Q. What about his clothes, did you see any blood on his clothes? A. I don't think so. Q. It was suggested to you in a question [in cross-examination], that it was a savage attack on Russell by the man with dreadlocks close to when you last saw Russell Lyons. Your answer was I think so. Would you explain what you mean by that answer "I think so"? A . I don't understand , what do you mean by savage and just from getting hit? Q. What I'm asking you is what you understand that to mean and why it is that you've given the answer "I think so" and what you mean by that? A. (No verbal reply.) Q. Perhaps if I ask you what is it that you saw, you agreed that you saw something like the man with dreadlocks belting into Russell. What is it you saw? A. He gave him a couple more hits up in that corner. Q. What part of his body? A. Face, I think. Q. You said a couple more? A. Yes. Q. By a couple, do you mean two? A. Two. Q. Did you see those couple of punches connect with Russell Lyons? A. I think they did. 19The Crown Prosecutor then referred to the following parts of the evidence given by John Byrne, the other eyewitness to the events which had occurred on The Crescent: Q. After he kicked the man that tried to steal Russell Lyons' wallet, what happened then? A. Then he kicked him, then he got up, the man that had a goatee kicked and said "no we tried to take his wallet". Q. So the kick, what followed from the kick was that the man fell down? A. Yes. Q. Where was he when he fell down? A. Near the footpath I think. Q. If he was near the footpath do you mean he was on the road when that happened? A. I can't remember exactly. Q. Was there any particular shop that was nearby at the time that you can remember? A. In the middle, in the intersection, I can't remember exactly where. Q. The entrance to that arcade? A. Yeah where the set of lights are, in the arcade-- Q. In that vicinity? A. Yes in there. Q. When that man said what you just told us he said then, about after he was kicked, what was the next thing that happened? A. Then the man with the dreadlocks kicked my friend Russell. Q. What part of Russell's body was kicked? A. In the leg I think. Q. What response was there from Russell when he was kicked in the leg? A. He went down, he went to the ground a bit and got back up. Q. Where was he standing when that happened, was he on the footpath or? A. I think on the road. Q. When Russell got back up, what did you see him do next? A. He ran off. Q. In which direction? A. Towards the police station. Down to the right, down the side street there is a police station down that way. Q. Do you know the name of that street? A. I can't remember the street. Q. Do you know what is on the corner? A. There is a pub on the corner. Q. Do you know the name of it? A. I am not sure. Q. Did you see Russell Lyons again? A. No. Q. The man with the goatee, did you see him? A. I see him run around the corner. Q. The same corner that Russell Lyons ran around? A. Yes. Q. What distance was there between the two of them? A. Oh, I am not sure, probably 20, 30 metres? Q. In between each other? A. Yes. Q. Did you see that man with the goatee again? A. No. Q. The three men you referred to as islanders, where were they when Russell Lyons ran around that corner? A. They were in the middle of the road. Q. Those three Islander men, where were they when the man with the goatee ran around the corner at the same time? A. Yeah, middle of the road. Q. And what was happening in that middle of the road where those three Islander men were standing when that happened? A. They were over towards the taxis, we were on the other side of them, and Ian started walking back towards Hamilton Road and I said "no I am getting a taxi" so I turned around to go back to the taxi rank and the guy with the dreadlocks grabbed me and punched me twice. I put my hands up to defend myself and told him "I don't want to fight I just want a taxi". He let me go. I turned around and he was still walking towards Hamilton Road. I caught up to Ian, the taxi come round the corner and we jumped in the taxi. [...] Q. Where did the taxi go? A. We got the taxi to drive up the street we seen Russell go up and we got him to go really slow so we could look out for him. Q. Did you see Russell? A. No. Q. What about those Islander men, did you see those three Islander men when you were in the taxi? A. No. Q. Did you see anyone in the vicinity at the time when you were on that taxi moving along and around the corner? A. No. Q. What was Russell Lyons wearing the last time you saw him? A. White knitted jumper, and I think a new pair of shoes or something, I can't remember. Q. What colour were the shoes? A. I think they were white, I am not quite sure. Q. The man with the goatee beard, did you see him ever again? A. No. 20The Crown Prosecutor submitted that, given that there were matters which affected his reliability, it was open to the jury not to accept that part of Ian Cross' evidence which concerned the blows that he said that he had witnessed having been administered to the deceased. Moreover, it was submitted that the jury was entitled to accept the evidence of John Byrne upon this aspect of the matter. It was submitted that if the jury proceeded in that fashion then it followed that there was nothing that had occurred during the course of the incident on The Crescent which could have accounted for the fatal injury. Alternatively, it was submitted that even if the jury was prepared to accept the evidence of Ian Cross that the deceased had been struck a blow or blows by the Islander man, then, it still would be entitled to conclude that the blow or blows caused only minor injuries. It was submitted, in those circumstances, that there would have been simply no scope for the scenario which was put to Dr Ellis to have any operation. Furthermore, it was submitted by the Crown that the jury was not, in any event, bound to accept only those aspects of the evidence of Dr Ellis and Detective Flippence upon which the accused sought to rely given the totality of their evidence. 21The Crown readily accepted that its case was circumstantial in nature, since there was no direct evidence as to how the deceased had met his fate. The Crown submitted nonetheless that there was evidence capable of supporting a verdict of guilty. It relied upon the following strands of evidence in support of its contention: (a) the location of material consistent with the accused's DNA profile in three separate areas - namely in each of the Adidas shoes (upon which was also located the deceased's blood) and upon the deceased's jeans; (b) the evidence from which it could be inferred that the accused, as at 3 June 1995, matched the descriptions given by the eye-witnesses that the person who attempted to steal the deceased's wallet was an Australian male with a goatee beard; (c) the strong likelihood that the deceased was killed during the course of the theft of his property by the person who, only a short time before, had endeavoured unsuccessfully to take it; (d) those parts of the evidence of Dr Ellis and Detective Flippence which supported the proposition that the fatal injuries were inflicted in the area in which his body was located rather than on The Crescent; (e) the evidence that there was no trail of blood leading from The Crescent to where his body was located which supported the proposition that that is where he met his fate; (f) the evidence concerning the severity of the injuries which were inflicted to the deceased's face which were more severe than those that could have been anticipated from Ian Cross' description of the attack upon him by the unidentified Islander; (g) the evidence from which it could be inferred that at the time of the fatal incident the accused was living within walking distance of the crime scene with Ms Jodie Pritchard on The Horsley Drive, Fairfield and thus had the opportunity to commit the offence. Conclusion 22Notwithstanding the valiant endeavours by counsel for the accused to suggest otherwise, in my view what has been advanced on this application is the formulation of a reasonable hypothesis consistent with innocence. That being so, the application must inevitably fail because it falls squarely with the principles enunciated in JMR (supra). Even if I am wrong in so characterising the nature of the application, I would have little hesitation in accepting the Crown's submission that the list of matters to which I have just referred, particularly when considered in combination would, in any event, warrant the matter being left to the jury for its decision. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2011