Jones v R

1. [1]

   DAVIES J: The appellant was charged with three offences as follows:

2. [2]

   The appellant pleaded not guilty to all three counts. He stood trial before Judge Allen and a jury between 28 March 2023 and 5 April 2023.

3. [3]

   On 5 April 2023 the jury returned verdicts of not guilty on counts 1 and 2 but guilty on count 3.

4. [4]

   The appellant was subsequently sentenced on 6 December 2023 to imprisonment for 1 year 6 months commencing 5 December 2023 and expiring 4 June 2025, but a direction was made pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) that he be released immediately upon entering into a recognizance, self, in the amount of $2,000.00 for a period of 3 years on specified conditions.

5. [5]

   The appellant now appeals against his conviction on one ground only as follows:

6. [6]

   For the reasons which follow, the direction given in relation to the belief of the appellant was erroneous. The appeal should be allowed and a new trial ordered.

The offending

1. [7]

   The Crown case was based upon communications the appellant had participated in online with police who were using two assumed online identities [REDACTED] “Child B” (count 1) and [REDACTED] “Child A” (counts 2 and 3), posing as 14 year old girls. On all three occasions the communications commenced on the [REDACTED] platform. Only count 3 involved some communications on the Google Hangout platform which required the use of a Gmail email address, and which was at the behest of “Child A”.

2. [8]

   [REDACTED] is an online communication platform which can be accessed via its website. It does not require users to register, but simply to specify a username, age, gender and locality. Once on the site, users can directly message other users who are online. Use of the site requires a minimum entered age of 18 years before access is granted and it presents or is marketed as an adult chat site. Once on the website, users with their names and entered ages (in brackets) are listed on the left of the display.

3. [9]

   It is not necessary to say anything about the offending in count 1 in the light of the not guilty verdict.

4. [10]

   In relation to count 2, it is only necessary to mention some brief facts because the person to whom the appellant was communicating was the same person in relation to count 3.

5. [11]

   Count 2 was alleged to have occurred on 21 December 2021. The appellant was utilising the username “Married Pastor”, (35 years of age) and he contacted “Child A” ([REDACTED]). The appellant then offered to send a picture of his penis, to which “Child A” responded, “Im 14 never seen one b4”. “Child A” told the appellant she was located in [REDACTED] with the appellant indicating he was in Penrith. The appellant suggested SnapChat and “Child A” responded “nah mum doesn’t let me have snap”. “Child A” then suggested Skype and the appellant asked whether “Child A” would be willing to send him pictures of herself as well. Shortly after that, the appellant indicated that he had to go, and the conversation came to an end.

6. [12]

   Count 3 was alleged to have occurred between 2 and 7 February 2022 and involved the appellant contacting “Child A” ([REDACTED]) on [REDACTED] utilising the username “Rubbinginpark” (35 years of age).

7. [13]

   On 2 February 2022 the appellant identified himself as a 35 year old male from Sydney and “Child A” said she was 14 years old from [REDACTED]. Each mentioned the area they said they lived in, and the appellant suggested that maybe he should come to a park near “Child A” and that he might “show you me or rub or we can do more”. When “Child A” asked what he meant the appellant indicated “like you can see my penis”. The appellant suggested she could touch it or take a picture. “Child A” said that her mother was going to be home in 10 minutes and asked if the appellant had Google Hangout or Skype. The appellant provided an email address for the purposes of connecting on the Google platform with “Child A” sending the appellant an invitation to connect at 4:49pm.

8. [14]

   The following day the appellant contacted “Child A” on [REDACTED]. She complained he had not accepted her invitation on Google Hangout. The appellant did so and the conversation then continued on that platform. They discussed meeting at a park and then there was discussion about exchanging pictures of themselves. “Child A” agreed to send the appellant a picture as long as he sent one back. She sent a picture but it failed to display as expected.

9. [15]

   The appellant asked “Child A” whether he should send a “normal, nude, penis, hard or soft LOL” image. He then sent a picture of himself clothed standing next to a white car. “Child A” re-sent the same image of her again, and asked the appellant his real name, to which he responded, “Luke”. “Child A” told the appellant that she liked the fact that he did not treat her like a “dumb 14 year old”, with the appellant responding, “Well, it’s a bit naughty, you are 14 but I’m not thinking about that”.

10. [16]

    On 4 February 2022 there was a further conversation between the appellant and “Child A” on Google Hangouts. They exchanged more photographs. One of those was a picture of the appellant in bed. “Child A” asked him why he was still in bed (at 4:09pm) and his response was that he wished she was there. She then asked, “What would we do?” and the appellant responded, “Kiss, cuddle, maybe play”. The discussion then turned to sex with “Child A” saying, “But OMG wat if I got pregnant? Mum would freak out if I got pregnant at 14”. When the appellant suggested, “You can even rub your girl bit against my guy bit”, she responded, “You can say it, I’m 14 not 6 [emoji]”.

11. [17]

    “Child A” attempted contact with the appellant on both 5 and 6 February 2022 unsuccessfully. On 7 February 2022 there were further conversations between them.

12. [18]

    On 10 February 2022 the appellant was arrested at his residence. An arrest video was made and became part of the evidence adduced by the Crown. The appellant said in that interview that the person with whom he chatted said she was 16 (in fact she said she was 14 on some 6 occasions), and that he didn’t believe she was as young as 16 because that was his experience with people on that site previously.

The trial

1. [19]

   The appellant gave evidence at the trial. He indicated that he believed [REDACTED] to be an adult sex site based on his experience with it, and the nature of the content, including the usernames adopted by many users. He agreed that he was involved in the communications in question with persons who had held themselves out to be 14 years of age, but he said that on each occasion he believed that he was talking to someone over the age of 18 years and that the interactions were in the nature of fantasy or roleplay.

Legislation

1. [20]

   Part 2.6, Proof of criminal responsibility, of the Code relevantly provides:

2. [21]

   Relevant provisions of Part 10.5 Division 474 (Telecommunications offences) of the Code provide:

3. [22]

   Section 474.28 relevantly provides:

4. [23]

   Section 474.29(5) provides:

The directions

1. [24]

   It appears that the trial judge provided a document to counsel containing proposed directions. That document is no longer available.

2. [25]

   Prior to the closing addresses being given the Crown forwarded a proposed direction as to belief to the associate of the trial judge. The direction was in these terms:

3. [26]

   In a discussion between the trial judge and counsel after the closing addresses had been given and before the trial judge commenced his summing up, the trial judge said this about that direction:

4. [27]

   The Crown did not demur to what the judge said in that regard. Senior counsel for the appellant said:

5. [28]

   His Honour gave the jury a document headed “Elements document”. In it he relevantly set out counts 1 and 3 and then said:

6. [29]

   When he handed that document to jury the trial judge said relevantly:

7. [30]

   A little later in his summing up the trial judge said this:

8. [31]

   At the conclusion of the summing up before his Honour sent the jury out, he asked counsel if there was anything arising from what he had said that needed clarification or further direction. Neither the Crown prosecutor nor senior counsel for the appellant said that there was anything.

Submissions

1. [32]

   The appellant submitted that the direction (the italicised portion of [30] above) amounts to a misinterpretation of the effect of s 474.28(3) of the Code. The appellant submitted that what is provided in that subsection operates as a rebuttable presumption in relation to which the defendant bears an evidential onus as s 13.3 of the Code identifies.

2. [33]

   The appellant submitted that the question whether there was sufficient evidence to discharge that burden, that is, “evidence to the contrary” for the purposes of s 474.28(3), was a question of law for the trial judge and not one of fact for the jury, as s 13.3(5) of the Code provides. That involved taking what evidence there was to that effect, whether from the Crown case or the defence case, “at its highest”.

3. [34]

   The appellant submitted that the proper construction of ss 474.27(1)(d) and 474.28 of the Code draws a distinction between cases where the recipient “is someone who is under the age of 16 years of age” and those where the “sender believes [them] to be” under 16 years of age. In the former case the element is one of absolute liability and a defendant has available to them a defence under s 474.29(5) of the Code for which they bear a legal burden (as opposed to an evidential burden) as s 13.4 of the Code provides.

4. [35]

   On the other hand, where the case is one based on representation and belief as to age, s 474.28(3) gives rise to a rebuttable presumption rather than a defence. If there is no evidence to the contrary, then as a matter of law the representation is proof of the requisite belief and the jury should be directed to that effect. If, however, there is “evidence to the contrary” those representations no longer operate as “proof that the defendant believed the person to be under ... that age”. In such a case, the onus is on the Crown to prove to the criminal standard and on the whole of the evidence that that was what the defendant believed.

5. [36]

   The appellant submitted that the direction was erroneous for three reasons:

6. [37]

   The appellant accepted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applies but submitted that the circumstances do not support the possibility that the decision not to oppose the direction was tactical in nature. The appellant submitted that the error in question was one of significance given that his belief as to the age of the recipient was one of the two key issues at trial.

7. [38]

   The Crown effectively agreed with the appellant’s submission that where the offender is charged under s 474.27(1) on the basis that the recipient is under 16 years of age, absolute liability applies with respect to that physical element but a defence under s 474.29(5) may then be available. In such a case the Crown submitted that if an accused seeks to rely on that defence, the accused will have the legal onus of proof and the jury should be directed in accordance with ss 13.4 and 13.5 of the Code. No direction should be given in relation to s 474.28(3) in that circumstance because proof of a belief that the recipient is under 16 years of age is unnecessary to the offence charged on the basis that the recipient is under 16 years of age.

8. [39]

   Further, the Crown submitted, where a person is charged with an offence under s 474.27(1) on the basis that the accused believed the recipient to be under 16 years of age, then no direction should be given about the defence in s 474.29(5). It may be appropriate for the jury to be directed in accordance with s 474.28(3) that evidence that a person was represented to the accused as being under, of, or at least a particular age is, in the absence of evidence to the contrary, proof that the accused believed the person to be under, of, or at least that age as the case may be. The Crown submitted that it is explicit (or at least implicit) in those submissions that it is for the jury to consider whether there is evidence to the contrary. The Crown submitted that that is supported by the judgment of the Queensland Court of Appeal in R v Shetty (2005) 2 Qd R 540; [2005] QCA 225 at [31] in respect of similarly worded legislation.

9. [40]

   The Crown submitted that s 474.28(3) does not engage the principles in s 13.3 of the Code because it is not an “exception, exemption, excuse, qualification or justification”. Rather, it is a provision which facilitates proof by commanding the tribunal of fact about how to reason which applies according to its terms. The Crown submitted that the onus of proof of the relevant belief rests with the Crown to the criminal standard and it is not helpful to speak of shifting burdens or of a rebuttable presumption.

10. [41]

    The Crown drew attention to the explanatory memorandum accompanying the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (Cth) (“the Bill”) which introduced these provisions into the Code, and submitted that the explanation does not suggest that s 13.3 of the Code applied. The Crown submitted that it is more consistent with s 474.28(3) introducing a command about how the tribunal of fact is to reason.

11. [42]

    The Crown submitted that s 13.3 does not provide any support for the conclusion that determining whether there is evidence to the contrary in s 474.28(3) is a matter for determination by the trial judge rather than the jury.

12. [43]

    The Crown accepted that the trial judge should not have given the direction in the second italicised sentence at [30] above, and accepted that directions about the defence in s 474.29(5) (from where the Crown suggests the trial judge derived that sentence) could in an appropriate case give rise to a miscarriage of justice. However, the Crown submitted that the misdirection in the present case did not result in a miscarriage of justice in the context of the summing up as a whole, given the repeated directions about the Crown’s onus and standard of proof on the issue of belief.

13. [44]

    The Crown submitted in relation to r 4.15 that not only was there no objection to the direction, but it appears that it was ultimately endorsed by senior counsel who appeared for the appellant at the trial. Nevertheless, the Crown accepted that it may be appropriate to grant leave in this case because, if it was an error to leave determination of whether there was evidence to the contrary to the jury in the event it was found to be the responsibility of the judge to determine that issue, there would be a fundamental error. The Crown accepted, in that way, that if error is found in the direction, that direction would result in a miscarriage of justice.

Consideration

1. [45]

   Much of the analysis of the relevant sections of the Code is agreed between the parties. Two matters are in dispute between them; first, whether s 13.3 has any relevance to the proper construction of s 474.28(3), secondly, whether the issue of whether there is “evidence to the contrary” is a question of fact or of law. The appellant argued for the former, the Crown for the latter.

2. [46]

   Section 474.27(1)(d) draws a distinction between a recipient who is and a recipient who the sender believes to be under 16 years of age. Where the recipient is under the age of 16 years under s 474.28(1) absolute liability applies to the physical element. However, the defendant then has available a defence under s 474.29(5) for which they bear a legal as opposed to an evidential burden (the note to the section makes that clear). The standard of proof is on the balance of probabilities: s 13.5.

3. [47]

   The position is different if the case is one based on the belief of the sender of the message. If there is no evidence to the contrary then s 474.28(3) provides that as a matter of law the representation is proof of the requisite belief. If, however, there is “evidence to the contrary”, the representation that the person was under the age of 16 years no longer operates as proof that the defendant believed the person to be under that age. In such a case the onus falls on the Crown to prove to the criminal standard and on the whole of the evidence that that was what the defendant believed.

4. [48]

   Both the appellant and the Crown accepted that analysis.

5. [49]

   In relation to the application of s 13.3 to s 474.28(3), the appellant’s starting point is that the default position, by virtue of s 13.3(1), is that where a burden of proof is placed on a defendant it is an evidential burden, and that ss 13.3 and 13.4 cover the field. By reason of that “default position”, the appellant correctly accepted that he does not need to show that s 474.28(3) amounts to an “exception, exemption, excuse, qualification or justification” within the meaning of s 13.3(3). This submission assumes, however, that s 474.28(3) places a burden on a defendant. In my opinion it does not.

6. [50]

   The Crown’s submission should be accepted that s 474.28(3) is a means of proof for the Crown in a particular situation, namely, that there is an “absence of evidence to the contrary”. Some support for that construction is found from the absence of any reference to the subsection imposing an evidential burden on a defendant. There are a number of provisions within the Code where reference is made to a defendant bearing an evidential burden in respect of those provisions: eg. ss 14.1, 71.14, 91.9, 137.1(3), 137.1(5), 268.110(2), 471.5. It may be accepted that by virtue of s 13(3)(a) of the Acts Interpretation Act 1901 (Cth), a note is not part of the Act; nevertheless, the note gives a fairly clear view of the drafter’s intention for the provision in question: AHF18 v Minister for Immigration & Anor [2018] FCCA 1458 at [23].

7. [51]

   Support for this construction of s 474.28(3) derives from Shetty. The relevant provision under consideration in that case was s 218A of the Criminal Code Act 1899 (Qld) which relevantly provides:

8. [52]

   The issue being determined in Shetty was similar but not identical to the issue being considered in the present appeal, but the commentary on sub-sections (8) and (9) is of some relevance in assisting in the construction of s 474.28(3) and s 474.29(5).

9. [53]

   Justice Keane (with whom McPherson JA agreed) said at [15]:

10. [54]

    Justice McMurdo said:

11. [55]

    The reasoning in this decision has been followed in R v Matthews [2015] QCA 82 at [19]-[22]. In R v Webb [2018] QCA 102 McMurdo JA (Sofronoff P and Morrison JA agreeing) said:

12. [56]

    Again, in R v Addley [2019] 2 Qd R 46; [2018] QCA 125, Sofronoff P (Fraser and Philippides JJA agreeing) said:

13. [57]

    Nor does the wording of s 13.3(4) sit easily with s 474.28(3). Under the latter provision there only has to be “evidence to the contrary”, whereas under the former the defendant only ceases to bear the burden if there is “evidence sufficient to discharge the burden”. Additionally, where a defendant has an evidential burden s 13.3(6) requires the defendant: (1) to adduce or point to evidence, (2) that suggests a reasonable possibility that the matter exists. Section 474.28(3) does not require a defendant to do anything, nor is it concerned with reasonable possibilities. It is only concerned with whether or not there is evidence to the contrary of the representation made to the appellant.

14. [58]

    The Crown relied on what was said in the explanatory memorandum accompanying the Bill as follows:

15. [59]

    Little assistance can be derived from that memorandum in construing s 474.28(3) in relation to the present issue. The last statement is equally supportive of the subsection providing a defence as it is of providing a method of proof. In the light of the matters earlier discussed, resort to the memorandum is neither necessary nor helpful.

16. [60]

    Accordingly, s 13.3 is not engaged by s 474.28(3). No defence is involved. Section 474.28(3) is a means of proof only in the event there is no evidence to the contrary.

17. [61]

    In the present case, the recorded interview between the police and the appellant at the time of his arrest was adduced by the Crown during the evidence in chief of the officer in charge of the investigation. That interview contained evidence by the appellant contrary to the representation made by “Child A” that she was 14 years old. The appellant also gave evidence to that effect. The Crown accepted at the hearing of the appeal that there was “evidence to the contrary”. That being so, s 474.28(3) had no further work to do, and the trial judge should not have given a direction about it as his Honour did in the first italicised sentence at [30] above.

18. [62]

    That gives rise to the second issue in dispute, whether determining whether there is evidence to the contrary is one of fact, and so for the jury, or one of law, and so for the trial judge.

19. [63]

    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; [1990] HCA 33, Mason CJ said:

20. [64]

    The Crown submitted that the context in which Bond and the cases on which it relied was far removed from a provision of the criminal law, and the decision could not easily be translated into such a different context. The appellant submitted that the words “in the absence of evidence to the contrary” speak to an objective state of certainty. A determination of that issue is not a determination of the ultimate question of fact, namely, whether the Crown has proved the element of the appellant’s belief.

21. [65]

    The judgment in Bond has been held applicable in relation to criminal matters. In DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 this Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) said at [131]:

22. [66]

    That decision was subsequently followed in Acton v R [2024] NSWCCA 92 at [62].

23. [67]

    In Parker v R [2023] NSWCCA 234; (2023) 105 MVR 337 Chen J (with whom Beech-Jones CJ at CL and Dhanji J agreed) said at [90]:

24. [68]

    The appellant’s submission should be accepted. The matter to be determined by s 474.28(3) is not a fact in issue in the proceedings (that fact is whether the appellant reasonably believed “Child A” was under the age of 16 years) which is clearly an issue for the jury, but rather whether there was any evidence to the contrary of the representation made by “Child A”. It follows, therefore, that a determination of whether there is an absence of evidence to the contrary, or a decision that there is evidence to the contrary, is a question of law, to be determined by the trial judge.

25. [69]

    If the determination made is that there is an absence of evidence to the contrary, the trial judge is bound to direct the jury that such absence is “proof that the defendant believed the person to be under” the age of 16 years. On the other hand, it follows that if the trial judge determines that there is evidence to the contrary, the method of proof provided in s 474.28(3) is no longer relevant, and the jury ought not to be told about it nor given any direction in that regard.

26. [70]

    Since there was evidence to the contrary, not only from the appellant but from the officer in charge including the recorded interview with the appellant at the time of his arrest, the directions in the first of the two italicised sentences at [30] above should not have been given to the jury.

27. [71]

    The second of the italicised sentences is even more problematic. It has all the flavour of a reversal of the onus of proof, that is, that the appellant had a legal burden to establish a reasonable possibility that he believed the recipient was at least 16 years old. The impression given by the direction in that second sentence was not ameliorated by what preceded it or by what followed. It is likely that that trial judge meant that the appellant had an evidential burden; the reference to “reasonable possibility” picks up s 13.3(6). However, that was not explained, and in the following passage his Honour moved directly to the Crown’s obligation to exclude a differently identified, although related, “reasonable possibility”.

28. [72]

    It may be accepted that the quoted passages before and after the italicised passage contain clear and unassailable directions concerning the Crown’s burden and standard of proof. However, the inclusion of the directions in the italicised portion of the summing up had a tendency to undermine what was said in the surrounding passages and are likely to have confused the jury in relation to their task on a significant aspect of their task. The point is aptly made by Sofronoff P in Addley at [25]:

29. [73]

    Senior counsel for the appellant not only did not object to the direction the trial judge indicated that he would give, but ultimately endorsed it by saying that the trial judge’s formulation “ought to be the one that is given to the jury”. Rule 4.15 applies. The Crown accepted that if it was determined that the issue of whether there was evidence to the contrary was a matter of law, it would be a fundamental error to leave to the jury that question as if it were a question of fact.

30. [74]

    For leave to be given where r 4.15 applies it would ordinarily be necessary to demonstrate a miscarriage of justice. What amounts to a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912 (NSW) was discussed at length by N Adams J in Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [121]-[140]. Having discussed the various High Court cases, her Honour pointed to what was said by Beech-Jones CJ at CL (with whom Wilson J and I agreed) in Zhou v R [2021] NSWCCA 278 at [22]:

31. [75]

    As Hamill J noted in Iskandar v R [2025] NSWCCA 33 at [98], the High Court is currently reserved in two cases where the approach to s 6(1) of the Criminal Appeal Act will be considered. His Honour said that the High Court may resolve the question of what constitutes a miscarriage of justice for the purpose of that section and consider the extent to which questions of materiality play a role. In my opinion, the present state of the law is as contained in the judgment of N Adams J in Tomlinson and in what is summarised in Zhou.

32. [76]

    In my opinion the errors constituted by the directions given in the italicised portion of the summing up at [30] above amounted to an irregularity that was prejudicial in the sense that there was a real chance that it affected the jury’s verdict and had the capacity for practical injustice. Leave should be granted under r 4.15.

Conclusion

1. [77]

   The appellant submitted that if the conviction was quashed there should be no order for a retrial. This was because a substantial part of the sentence of 18 months has been served and because the only explicable basis for the acquittal on count 2 was that the appellant had established a reasonable possibility that he did not believe “Child A” was under the age of 16 years. In those circumstances, the appellant submitted that a further trial is not in the public interest.

2. [78]

   It may be doubted that the only explicable basis for the acquittal on count 2 was related to the appellant’s belief in the age of the recipient. The charge was one of using a carriage service to transmit an indecent communication to a person under the age of 16 years which involved some different elements from those in counts 1 and 3.

3. [79]

   The Court determines where the interests of justice lie by considering a number of factors including those set out in Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [649]. Although a substantial portion of the sentence has been served, the seriousness of the offence (as demonstrated by the maximum penalty), the desirability of the guilt or innocence being determined by a jury properly directed, and the appropriate recognition of the responsibility of the prosecuting authorities to act in the public interest in bringing proceedings, together justify the ordering of a retrial rather than an acquittal. The decision is then left appropriately with the Commonwealth Director of Public Prosecutions.

4. [80]

   I propose the following orders:

5. [81]

   WRIGHT J: I agree with Davies J.

6. [82]

   DHANJI J: I agree with the orders proposed by Davies J for the reasons his Honour gives. I would add only the following.

7. [83]

   I note that the words “evidence to the contrary” are also used in s 272.27(1), s 471.5(2) and subss 471.27(3)-(4) of the Criminal Code (Cth) (“the Code”). The use of the words in s 272.27 and subss 471.27(3)-(4) is very similar to the use of the words in s 474.28(3). The same analysis would appear to apply to the construction of those three provisions. Section 471.5 is interesting in its difference. It is helpful to set the section out in full:

8. [84]

   It can be seen from the above that, by s 471.5(3), there is an evidential burden (invoking s 13.3) with respect to “evidence to the contrary” as used in s 471.5(2). That would suggest that the Code does contemplate that the words “in the absence of evidence to the contrary” are capable of casting an evidential onus on the accused. This militates against the conclusion of Davies J with which I agree. Two things, however, tell against the same words having the same effect in s 474.28(3). Firstly, s 471.5(2) is of a different nature. It is clear in providing a presumption – “it is presumed in the absence of evidence to the contrary …”. Thus, it is of a different nature to s 474.28(3) which does not create a presumption but facilitates proof. Section 13.3 sits comfortably in the context of a rebuttable presumption but does not sit as easily with a provision facilitating proof in the manner provided for by s 474.28(3). Secondly, perhaps more significantly, s 471.5(3) is explicit in placing an evidential burden on the accused and thus applying s 13.3. The absence of an equivalent to s 471.5(3) in the context of s 474.28(3) provides further support for the conclusion that s 474.28 operates differently and in turn supports the construction of Davies J.