Supreme Court New South Wales Medium Neutral Citation: Byrne v Baker [2019] NSWSC 503 Hearing dates: 7 December 2018 Decision date: 03 May 2019 Jurisdiction: Common Law Before: Button J Decision: (1) The amended summons is dismissed; and (2) The plaintiffs, Paddy Daniel Byrne, David Byrne, Benjamin Byrne and Jonathon Byrne, must pay the costs of the First Defendant, Senior Constable Amanda Baker, of the proceedings before me. Catchwords: ADMINISTRATIVE LAW – judicial review – costs in summary criminal proceedings – application by successful defendants for costs against police after all charges dismissed in summary criminal proceedings – whether Magistrate committed jurisdictional error in refusing costs – summons dismissed Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: May v O'Sullivan (1955) 92 CLR 654 Category: Principal judgment Parties: Paddy Daniel Byrne (First Plaintiff) David Byrne (Second Plaintiff) Benjamin Byrne (Third Plaintiff) Jonathon Byrne (Fourth Plaintiff) Senior Constable Baker (First Defendant) Local Court of New South Wales (Second Defendant) Representation: Counsel: L Fernandez (Plaintiffs) J King (First Defendant) Solicitors: Macedone Legal (Plaintiffs) Office of the General Counsel, NSW Police Force (First Defendant) File Number(s): 2018/124209 Publication restriction: Nil Judgment Introduction 1. This is an application for judicial review of the decision of a Magistrate to refuse costs after a summary criminal hearing, by the conclusion of which all of the defendants (who are the plaintiffs before me) were acquitted. 2. Counsel for the plaintiffs made it clear to me that his central contention was that the learned Magistrate had committed jurisdictional error, in that, although there had been a "recitation" in the primary judgment of the relevant statutory tests, they had not, in truth, been engaged with and properly applied. 3. The first defendant before me was the informant in the criminal proceedings in the Local Court. The second defendant entered a submitting appearance. For the convenience of the reader, I shall simply refer to the first defendant as "the defendant". 4. This judgment will first set out a sketch of the background of the matter, including the criminal allegations against the plaintiffs; a summary of the stages of the criminal proceedings at which verdicts of not guilty were returned; an extract from the applicable statute about costs in summary criminal proceedings; a review, to the extent pertinent, of the submissions made to the Magistrate about costs; and a precis of the primary judgment. Thereafter I shall turn to summarise the submissions made by counsel for the plaintiffs before me, before providing my determination. Background 1. The criminal proceedings related to alleged events on the evening of 5 December 2015 in the Riverina town of Wagga Wagga. All of the plaintiffs are male members of the Byrne family. For brevity, and without meaning the slightest disrespect, to the extent that discrimination between them is necessary I shall refer to them by their first names: Benjamin, Jonathon, David, and Paddy. The first three were brothers, and the last named is David's son. 2. In a nutshell, the prosecution allegation was that, after a disagreement and altercation with other persons at a hotel, the dispute moved to a public street, and became offensive and violent. 3. To expand on that a little, the prosecution alleged that on 4 December 2015 at around 11.45 pm Mr Andrew Saddler, Mr Joshua Ashcroft, Mr Edward Fellows and Mr Tyler Cunningham were at the William Farrer Hotel, sitting in the smoking room of the hotel, smoking cigarettes. Jonathon, Benjamin and David were also in the smoking room. 4. Mr Saddler went inside the hotel to use the bathroom, and his associates shortly followed. After returning from the bathroom, Mr Saddler believed that he had left his cigarettes on the table in the smoking room, but when he returned they were not there. 5. Mr Saddler approached Benjamin to ask if the cigarettes in Benjamin's possession were Mr Saddler's. The prosecution allegation was that Benjamin aggressively insisted that they were his own. Mr Saddler then walked away and sat down with his associates again. 6. At around 12.25 am on 5 December, Benjamin walked past Mr Saddler in the hotel. Mr Saddler spoke to him, suggesting that he had indeed stolen Mr Saddler's cigarettes. It was alleged that Benjamin responded by head-butting and punching Mr Saddler (Benjamin's charge of common assault). 7. The bar manager, Mr Matthew Maxwell, then asked Mr Saddler and his three associates to leave. The members of the Byrne family left some time afterwards. 8. Mr Saddler and his three associates left the hotel and walked down Baylis Street. Whilst they were walking, a car approached them and four males exited the vehicle – they were Benjamin, David, Jonathon, and Paddy. 9. The prosecution alleged that a physical altercation then ensued at around 1.20 am on 5 December 2015, as follows. 10. When Jonathon alighted from the vehicle, he engaged in the altercation, followed Mr Sadler and Mr Ashcroft to the middle of road, and then back onto the footpath (Jonathon's charge of behaving in an offensive manner in public). 11. It was alleged that during the physical altercation Benjamin tackled Mr Saddler to the ground, repeatedly forced his head to the ground, and punched and kicked him, resulting in concussion, scratches to the back, and bleeding to the face (Benjamin's charge of assault occasioning actual bodily harm). 12. It was also alleged that Paddy assisted in tackling Mr Saddler to the ground by holding him to the ground and kicking him (Paddy's charge of common assault). 13. There was also an allegation against David involving punches to Mr Ashcroft whilst on Baylis Street (David's charge of common assault). 14. The prosecution further alleged that David adopted a boxing stance and punched at Mr Ashcroft, as well as pressing his foot on Mr Saddler when that gentleman was on the ground (David's charge of behaving in an offensive manner in a public place). 15. Finally, during the altercation on the street, Jonathon allegedly struck Mr Ashcroft in the back of the head (Jonathon's charge of assault). 16. Separately, a taxi driver, Mr David Chiddick, was on Baylis Street when he saw: two males on the street, a vehicle pull over to the curb, four males exit that vehicle, and the four males proceed to surround and punch the two males. Plainly enough, the prosecution case was that those four men were the plaintiffs. 17. Mr Chiddick then drove up to the Victoria Hotel where there were police officers. He reported what he had seen to them. The defendant in the proceedings before me (who became the officer in charge of the matter) and another officer then attended the scene of the altercation, and separated the men. Stages of verdicts of not guilty 1. The plaintiffs all pleaded not guilty to the charges. The matters were heard by the Magistrate together over a number of days from late January to early July 2017. 2. At the close of the prosecution case, a number of applications were made on behalf of the plaintiffs. Submissions were made in respect of Paddy, Jonathon and David that there was no prima facie case to answer (that is, for a verdict by direction); or, in the alternative, that the charges against them could not be proven beyond reasonable doubt. In the case of Benjamin, he gave evidence in his own case. 3. All charges against all plaintiffs were ultimately dismissed by his Honour. At the hearing before me, counsel were agreed as follows with regard to the stages at which the plaintiffs were variously acquitted. 4. In relation to Paddy's common assault charge, there was a finding that a prima facie case existed (that is, there was some evidence of every element of the offence). The charge was dismissed, however, at the conclusion of the prosecution case, and pursuant to an application by way of May v O'Sullivan (1955) 92 CLR 654, on the basis that the evidence could not prove the allegation beyond reasonable doubt. 5. With regard to Jonathon, Magistrate Crompton found there was no prima facie case in support of the charge of common assault. 6. In relation to the charge of offensive behaviour against Jonathon, his Honour held that there was a prima facie case, but his Honour found that the prosecution could not disprove beyond reasonable doubt that he had acted in self-defence. 7. Turning to David, Magistrate Crompton found there was no prima facie case with regard to David's charge of common assault. 8. His Honour separately found that the prosecution could not disprove beyond reasonable doubt that David had acted in self-defence with regard to the charge of offensive behaviour. 9. With respect to both charges against Benjamin, Magistrate Crompton found at the end of the hearing that the prosecution could not disprove beyond reasonable doubt that he had acted in self-defence. 10. In summary then, with regard to the various plaintiffs, various charges were dismissed at various stages, with the ultimate result, as I have said, that all plaintiffs were acquitted of all charges. Relevant legislative provisions 1. Upon dismissal of the charges, applications for costs were made pursuant to the Criminal Procedure Act 1986 (NSW) (the CPA) and the Costs in Criminal Cases Act 1967 (NSW). 2. No aspect of his Honour's judgment with regard to the latter Act was impugned before me. Accordingly, I shall not analyse it in this judgment. 3. The following are the salient portions of the Criminal Procedure Act. I have bolded within one of them the variants of the provisions that were relied upon before the Magistrate, for the convenience of the reader. 213 When professional costs may be awarded to accused persons (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) … (4) (Repealed) (5) The order must specify the amount of professional costs payable. 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. (2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. Submissions on costs made to Magistrate 1. At the hearing on costs, one counsel appeared for both Paddy and David, and two solicitors separately appeared for each of the other plaintiffs, Benjamin and Jonathon. Written and oral submissions were made, and the prosecutor responded in kind. Because of that complex and overlapping picture, I shall only highlight those submissions that, in my opinion, are relevant to the determination of the proceedings before me. 2. As one would expect, the Magistrate was provided by the plaintiffs with a detailed critique of the way in which the investigation was conducted, and all of its asserted shortcomings. 3. An important point made for the plaintiffs was that the defendant never obtained CCTV that would have shown the events at the hotel, and would, as a result, have cast light on the rights and wrongs of what happened on the street, as well as on the credibility of prosecution witnesses. 4. In a nutshell, the prosecution submission on the question of the hotel CCTV before the Magistrate was that there was nothing at the time of the investigation to "doubt the veracity" of Mr Saddler's version of events (page 4 at paragraph 3 of the prosecution's written submissions). It was submitted that Mr Maxwell's statement made no mention of him having viewed the hotel CCTV footage or offering to show the defendant the CCTV footage. The first mention of Mr Maxwell seeing something inconsistent with Mr Saddler's version occurs during cross-examination (after the footage had been destroyed). Accordingly, it was submitted that in these circumstances at the time of the investigation, it was not unreasonable for the defendant to omit to obtain the hotel CCTV footage. 5. Quite apart from that point of dispute, I interpolate that it was explained at the hearing before me that the CCTV had in fact been destroyed, with the results that it was never tendered in evidence, and that one cannot say with certainty what it would have shown. 6. A further important point for the plaintiffs on costs was that the CCTV from the street – which was available, and which was tendered in evidence – was starkly inconsistent with the evidence of the prosecution witnesses, including the taxi driver who first brought the matter to the attention of the police. 7. Another point made in the costs proceedings was about the enhancement of the CCTV from the street. It was said (at TT 475.18-23) that, early on in the investigation, the police enhanced the CCTV footage from Baylis Street in order to clarify what each of the plaintiffs and witnesses were doing during the incident, thereby demonstrating that the police appreciated its importance. Primary judgment 1. Having first recounted the context of the applications, Magistrate Crompton turned to the various sections that underpinned them. Section 214(1)(a) 1. In considering s 214(1)(a) of the CPA, his Honour noted the various factors relied upon by the applicant, including that the defendant failed to interview two witnesses (Mr Fellows and Mr Cunningham) who were present at the hotel, and that the defendant had failed to obtain the hotel CCTV footage of the smoking room. 2. His Honour accepted that Mr Chiddick's statement was totally inconsistent with the scene as depicted in the Baylis Street CCTV footage. 3. The Magistrate then recounted: "It is submitted that the investigation was unreasonable and improper by reason of the matters detailed above, and other matters which were not investigated by SC Baker". 1. His Honour reached the following conclusion in relation to s 214(1)(a): "Whilst there are deficiencies in the police investigation which came to light following the evidence, and cross examination, of the witnesses, and whilst the investigation may be characterised as failing to meet optimum standards, I am not satisfied that it was unreasonable or improper. A key piece of evidence in the prosecution was the CCTV footage. The Officer In Charge's evidence was that because the footage was not particularly clear she took the footage to a service to have it enhanced. There was nothing unreasonable in so doing." Section 214(1)(b) 1. In relation to s 214(1)(b) of the CPA, Magistrate Crompton considered the plaintiffs' submission that the defendant did not carry out a proper evaluation of the evidence by way of comparing the relevant witness statements with the available CCTV footage. In relation to this, his Honour stated: "That may be so, but the question arises, does that mean that the proceedings were initiated without reasonable cause?" 1. His Honour then went on to consider the submission made by the plaintiffs that the presence of a prima facie case "does not mean it is reasonable to launch a prosecution". 2. Ultimately, Magistrate Crompton found that, in combination, the relevant statements and the Baylis Street CCTV footage did give rise to a prima facie case. Thereafter his Honour went on to conclude that "the proceedings were not initiated unreasonably". 3. Relevantly, Magistrate Crompton found: "The prosecution submits that the evidence was such that Mr Saddler complained of both alleged assaults upon him. That claim was supported by the statements of Mr Maxwell, Mr Chiddick, Mr Byrnes and Mr Ashcroft. It is submitted that those statements and the CCTV footage in combination "present what is at the very least a prima facie case". I accept that submission. I find that the proceedings were not initiated unreasonably." Section 214(1)(c) 1. With regard to section 214(1)(c) of the CPA, Magistrate Crompton considered the submission by the plaintiffs that "the obvious deficiencies in the prosecution case meant that the prosecution should never have commenced". 2. His Honour rejected that submission: "I do not accept that submission. There was sufficient evidence obtained by the police to form the basis of a prosecution. The fact that the charges were ultimately dismissed, after the evidence of witnesses were heard, and the witnesses were cross-examined, does not mean that the investigation was unreasonable for the purposes of s. 214(1)(c)." Submissions of the Plaintiffs before me 1. As I have said above, the sole contention of the plaintiffs was that the Magistrate had committed a jurisdictional error, not anything less. 2. Counsel for the plaintiffs made submissions in relation to each sub-section of the CPA that was relied upon before Magistrate Crompton, namely sections 214(1)(a), (b) and (c). Section 214(1)(a) 1. In relation to s 214(1)(a), counsel for the applicant contended that the Magistrate committed jurisdictional error in three ways. 2. First, his Honour failed to deal with a particular submission placed before his Honour, and, conversely, purported to consider an irrelevant submission that had, in truth, never been placed before his Honour. 3. Expanding upon that, it was submitted that his Honour's conclusion that the investigation was not conducted in an unreasonable or improper manner was based on the finding that there was nothing unreasonable about enhancing the Baylis Street CCTV footage – and yet, the submission that doing so was unreasonable had never been made to his Honour. 4. Conversely, it was said that the submission put before the Magistrate that should have been considered was that it was unreasonable for the defendant to fail to obtain the hotel CCTV footage, because the events at the hotel certainly could have shed light on the subsequent Baylis Street incident. 5. Secondly in this context, it was submitted that the Magistrate failed to consider at all the applicant's submission that the defendant made no attempt to interview the two relevant witnesses as to what occurred at the hotel. 6. Thirdly, counsel highlighted in oral submissions the proposition that the Magistrate failed to assess the unreasonableness or impropriety of the investigation correctly by focussing on the deficiencies of the investigation as revealed after the hearing, rather than those that existed at the time the investigation was being conducted. Section 214(1)(b) 1. Counsel for the applicant next sought to show jurisdictional error in the Magistrate's conclusion that the plaintiffs had not established that the "proceedings were initiated without reasonable cause", pursuant to s 214(1)(b) of the CPA, as follows. 2. First, it was submitted orally that the Magistrate erred in failing to consider whether the proceedings were initiated without reasonable cause. Rather, his Honour had considered whether there was a prima facie case or not. Accordingly, his Honour was said to have misapprehended what was required to be assessed pursuant to s 214(1)(b) by engaging in an "elision or blurring of the tests". 3. Secondly, in written submissions counsel argued that the Magistrate failed to take into account the enquiries that police should have made – thereby demonstrating that his Honour misconstrued the exercise mandated by the statute. 4. Thirdly, counsel contended that his Honour did not evaluate the plaintiffs' submissions, but merely accepted the prosecution's submissions about costs without sufficient analysis. Section 214(1)(c) 1. Counsel submitted that the Magistrate had committed jurisdictional error by misapprehending what his Honour was required to do under section 214(1)(c). 2. In oral submissions, counsel for the plaintiffs clarified (in accordance with my summary above) that the submission before Magistrate Crompton in relation to s 214(1)(c) had been that there was a failure to investigate properly a relevant matter (that is, the hotel CCTV footage) of which the prosecutor was aware. The hotel CCTV footage, it was said, would have suggested that one or more of the defendants might not have been guilty of the offences alleged to have been committed on Baylis Street. 3. In oral submissions, counsel advanced two bases for the claim of jurisdictional error. First, his Honour failed to engage with the specific consideration of the prosecution's failure to obtain the hotel CCTV footage. 4. Secondly, his Honour considered the question of whether there was "sufficient evidence to form the basis of a prosecution", which was not called for by the relevant sub-section. Instead, his Honour should simply have considered the straightforward test mandated by the sub-section. Determination 1. In my opinion, the plaintiffs have not demonstrated jurisdictional error on the basis of the primary judgment, read as a whole and in context. I say that for the following reasons. 2. First, this was a judgment delivered by a no doubt very busy Magistrate sitting at a regional centre. It is true that the judgment was reserved. But a counsel of perfection, in terms of niceties of expression and voluminous analysis, cannot be applied to such judgments. 3. Secondly, as I have demonstrated, this matter had its complexities: the number of plaintiffs, the different charges, and the different bases on which they were dismissed. It could not be expected of the Magistrate that he would deal with every permutation of every issue placed before his Honour. 4. Thirdly, whatever else jurisdictional error may entail, it was accepted by counsel for the plaintiffs before me that it must be a sufficiently extreme error to be able to be characterised as an actual or constructive failure to exercise jurisdiction. But I do not accept that it has been established that anything so extreme has occurred here. 5. Fourthly, the judgment correctly refers to each of the statutory tests, and thereafter applies itself to a characterisation of aspects of the substantive criminal proceedings as within or without those tests. There is nothing to suggest that, in accordance with the submission of counsel for the plaintiffs, the Magistrate merely "recited" the statutory tests, without giving effect to them. 6. Fifthly, it is true that, throughout the primary judgment, the Magistrate referred to the question of whether a prima facie case had existed with regard to various charges against various plaintiffs. Contrary to the submission of counsel for the plaintiffs, however, I do not believe that, read as a whole, the primary judgment elides the concept of a prima facie case with the concepts to be found in the statute. 7. Undeniably, they are separate concepts; having said that, the former is surely relevant to the latter. I say that because, for example, it would surely almost always be unreasonable to commence a prosecution in the absence of a prima facie case (having said that, I appreciate that it will not always be reasonable to commence a prosecution in the presence of a prima facie case). In my opinion, all that the Magistrate was doing was referring to the former as a consideration relevant to the question of establishment of the latter in general, and the statutory tests in particular. 8. As well as that, I do not accept any proposition that the stages at which the various charges had been dismissed, and the bases upon which that had occurred, was something to which the Magistrate was not entitled to refer in a judgment about costs arising from the substantive proceedings. 9. Finally on this point, it is clear that the dismissal of some of the proceedings at the prima facie level had been the subject of submissions before the Magistrate on the costs application. In that circumstance, a discussion of the concept in the subsequent judgment can hardly be criticised. 10. Sixthly, I believe that the particular matters in the primary judgment to which counsel for the plaintiffs invites attention are to be understood as follows. 11. First, reading the judgment as a whole, in my opinion it is clear that the Magistrate engaged more than once with the question of the failure to obtain the CCTV from the hotel, in making the evaluative judgments called for by the statutory tests (in the last paragraph of page 18, the first complete paragraph of page 19, and the third complete paragraph of page 19). 12. Secondly, I do not believe that the Magistrate exercised a legally wrong chronological focus on the state of affairs as they pertained after all charges had been dismissed, as opposed to reflecting on the statutory tests "back at the time" of the investigation and the initiation of proceedings. The mere fact that the Magistrate referred to the undeniable outcome of the criminal proceedings resolving – very advantageously to the plaintiffs – does not demonstrate the thesis. And the simple fact is that at the crucial stages of the judgment the Magistrate used the past tense, not the present (in the last paragraph on page 19, the last paragraph of page 20, and the third paragraph of page 21). 13. Thirdly, as counsel for the plaintiffs accepted before me, the question of the enhancement of the CCTV from the street had indeed been raised before the Magistrate at the costs hearing. In those circumstances, there cannot be criticism made of the Magistrate referring to that fact in the judgment. And in any event, even if it be the case that, with respect, the Magistrate may have misunderstood the underlying purport of that particular submission, that could hardly constitute jurisdictional error. 14. In short I do not accept the detailed criticisms that were made of portions of the judgment. I certainly do not accept that, individually or taken as a whole, they demonstrate jurisdictional error. 15. Returning now to my overarching reasons, seventhly, the events in the smoking room of the hotel may have shed some light on subsequent events on the street. But the former events could hardly be determinative of the latter; in any event, the hotel CCTV was never able to be placed before his Honour at any stage. The analysis in the primary judgment of the issue of the hotel CCTV, taken as a whole, does not bespeak legal error. 16. Eighthly, and appreciating that (with respect correctly) counsel for the plaintiffs did not ask me to engage in a "merits review", nevertheless, one does not instinctively resile from the global analysis in the primary judgment: although all plaintiffs were ultimately acquitted, the police had statements from a number of witnesses – not least, a seemingly uninvolved taxi driver who happened to be on the scene – that seemingly inculpated the plaintiffs. 17. Ninthly and finally, it is significant that although the Magistrate did find that there were "deficiencies" in the investigation, and that it could be characterised as not meeting "optimum standards", his Honour was not affirmatively satisfied of any of the statutory tests; in particular, the underlying establishment of the characteristic of unreasonableness. There is nothing suggestive of legal error in the drawing of that distinction, between differing points on a spectrum, in the exercise of the evaluative judgment that his Honour was called upon to undertake by the statute. 18. In short, one may accept that, having been acquitted of all charges, the plaintiffs are aggrieved by the fact that they have expended no doubt a significant sum on legal fees without recompense. 19. And one may also respectfully accept that minds could have legitimately differed about the outcome of these applications. 20. Still and all, I am not affirmatively satisfied that the Magistrate committed any legal error in determining these applications, let alone an error extreme enough to be able to be characterised as a failure to exercise jurisdiction at all. 21. For those reasons, I do not propose to make the orders sought by the plaintiffs before me. Costs 1. It was explicitly conceded by both counsel at the hearing before me that costs should follow the event. Accordingly, there will be a costs order in favour of the (first) defendant. 2. Counsel for the defendant raised the possibility of a gross sum costs order being made by me with regard to this matter if he were to succeed. As I said at the hearing, my initial thought is that such a step would not be appropriate, because it is not as if any other costs order against the plaintiffs has been outstanding for an extended period in favour of the defendant. Nor was the hearing before me a dispute about "costs regarding costs" that may suggest the need for avoidance of a possible costs assessment at this stage. 3. Despite those initial thoughts, as I also said at the hearing, counsel for the defendant should not be closed off from such an application. If it is to be made, the parties should jointly liaise within one week from today with my Associate to receive a concise timetable for the receipt of written submissions on the question. Unless either counsel submits in writing that an oral hearing is necessary with regard to any such application, supported by concise reasons for that course, I do not propose to conduct one. Orders 1. I make the following orders: 1. The amended summons is dismissed; and 2. The plaintiffs, Paddy Daniel Byrne, David Byrne, Benjamin Byrne and Jonathon Byrne, must pay the costs of the First Defendant, Senior Constable Amanda Baker, of the proceedings before me. ************************* Amendments 19 July 2019 - Changed the name of counsel from "J P King" to "J King". 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 2019