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Lionel Murphy and the presumption of guilt

21 September 2017

Some of the most serious allegations against the reforming attorney-general turned High Court judge centre on his relationships — real or imagined — with three notorious Sydney figures

Right:

Justice Lionel Murphy (second from right) and his legal team — led by Tom Hughes QC (second from left) — arrive at the Old Banco Court, Sydney, on 18 July 1985. A. Short/Sydney Morning Herald

Justice Lionel Murphy (second from right) and his legal team — led by Tom Hughes QC (second from left) — arrive at the Old Banco Court, Sydney, on 18 July 1985. A. Short/Sydney Morning Herald


Last week’s release of the Class A files of the parliamentary commission of inquiry into allegations against Justice Lionel Murphy reopened a longstanding controversy about the behaviour of the former Labor attorney-general. (The Class B files, concerned simply with the legal definition of the word “misbehaviour” in section 72 of the Constitution, were published in December last year.)

Writing about the Class A files is difficult. It is difficult because the seventy-four files — more than 1700 kilobytes of data in PDF format — are a chaotic jumble of typed memoranda, handwritten notes, correspondence, photocopies, extracts or transcripts from records of interview (often not clearly identified), and excerpts from Hansard, the National Times and Age newspapers, and Penthouse magazine. Significant information is often tucked away in strange places, and I doubt if anyone has yet unearthed it all.

It is also difficult because much of the material, whether favourable or unfavourable to Murphy, reflects adversely on other individuals, many of them (unlike Murphy) still living. This, of course, is why the release of the Class A files was deferred until now.

Above all, it is difficult because it swamps us once again in the sensationalised nightmare of “the Murphy affair,” for which a few brief words of background are needed. On 6 February 1974, ten years before the publication in Melbourne of the “Age tapes,” the US Congress authorised a committee inquiry into whether president Richard Nixon should be impeached, thus raising the curtain on the final act of the Watergate drama. Bob Woodward and Carl Bernstein had set a new standard of investigative journalism. Ten years later, a generation of younger Australian journalists were inspired by that standard. But where Woodward and Bernstein published nothing unless it had been objectively confirmed by two independent sources, the rapparees of “the Murphy affair” seized on each new allegation, however improbable, and rushed it into print without ever pausing to consider its credibility, let alone its context. To return in 2017 to what they wrought in the mid 1980s is deeply painful.

While some of the press response in the past few days has once again been “sensational,” the sensationalism this time around is likely to be short-lived, since there is little to give it oxygen. More importantly, some of the reaction has been notably more restrained. In particular, Paul Kelly’s article in the Weekend Australian of 16–17 September was admirably balanced and objective.

For those who came in late

On 22 February 1984, Justices Murphy and Deane dissented from the High Court decision upholding the conviction of Lindy Chamberlain for the murder of her daughter Azaria. Their judgements presaged the end of a shameful history of personal demonisation. But three weeks earlier, on 2 February 1984, the publication of the “Age tapes” had begun another such history with a different target.

A Senate committee established in March that year cleared Murphy of any allegations arising from the “Age tapes,” but received a fresh allegation from Clarrie Briese, the chief stipendiary magistrate for New South Wales. A second Senate committee, established in September, heard a further allegation from Judge Paul Flannery of the NSW District Court. The Briese and Flannery allegations related to the prosecution of Murphy’s solicitor friend Morgan Ryan for conspiracy in immigration matters. Both men reported conversations with Murphy that they now saw (in the context of the “Age tapes”) as possibly intended to influence the result of the Ryan prosecution — Briese because his position might have enabled him to put pressure on the magistrate hearing the committal proceedings, and Flannery because he was the presiding judge at Ryan’s trial.

On 5 July 1985, a jury acquitted Murphy of the Flannery allegation but convicted him of the Briese allegation. On 28 April 1986, a second jury acquitted him of the Briese allegation as well, and it looked as if Murphy’s troubles were over. But on 2 May an emergency meeting between chief justice Harry Gibbs and attorney-general Lionel Bowen resulted — perhaps through a misunderstanding — in the decision that a parliamentary commission of inquiry should review all possible allegations (except those from Briese and Flannery) in order to determine once and for all whether “any conduct” by Murphy might amount to the kind of “proved misbehaviour” that would trigger his removal from the bench.

On 31 July 1986, Murphy announced that he was dying of cancer. The work of the commission was immediately halted, and its constituent statute repealed. Murphy died on 21 October 1986.

It was said at the time that the commission had assembled forty-two allegations; it now appears that there were only forty-one. It was said that the team of counsel assisting the commission had identified fourteen allegations as needing investigation; it now appears that there was a fifteenth, which had only just been identified and had not been served on the judge. For most of the remaining twenty-six allegations, counsel had decided either that what was alleged could not possibly constitute “misbehaviour” or that it was unsupported by evidence. For a few of the allegations, no decision had yet been made.

All of these decisions had been taken only by counsel assisting the commission. In their final report in September 1986 the three commissioners emphasised that they themselves had made “no findings of fact,” and had “therefore formed no conclusions or opinions whether any conduct of the Judge has been such as to amount to proved misbehaviour.”

Since most of the forty-one allegations released last week are not in fact new, their release in fact adds very little to our knowledge. I have written about many of them before, especially in my chapter in the 1987 book Lionel Murphy: A Radical Judge (edited by Jocelynne Scutt) and in an entry on “The Murphy Affair” in the Oxford Companion to the High Court of Australia. In particular, my chapter in the Scutt book includes detailed analyses or deconstructions of what are now Allegation 2 (the Lewington matter, pages 236–37), Allegation 18 (the Jegorow matter, pages 231–33), Allegation 19 (the Paris Theatre matter, page 233) and Allegation 26 (the Yuen matter, pages 230–31). In addition, the reasons why no reliable conclusions can be drawn from the illegally recorded “Age tapes” — or rather, from the transcripts of the actual tapes, which in most cases had been destroyed — are summarised on pages 233–35 by reference to the fuller analysis set out in the Report of the Royal Commission of Inquiry into Alleged Telephone Interceptions, usually known as the Stewart Report.

Accordingly, I will confine myself here to reviewing some of the material relating to three of the more disreputable characters in what is now a cast of thousands. This review deals with seven of the fourteen allegations initially listed for hearing, and eleven of the twenty-six allegations not listed for hearing. Although it is far from being a comprehensive account of the material released on 14 September, it appears to me to be a representative sample.

Morgan Ryan

The “Age tapes” came into existence because NSW police were illegally tapping Morgan Ryan’s phone; the recording of his conversations with Murphy was only an unexpected by-product. At least eight of the fourteen allegations initially selected for hearing involved the relationship with Ryan, along with at least another eight of those not so selected.

Ryan had indisputably close associations with many of Sydney’s most notorious underworld figures, notably including nightclub owner and property developer Abe Saffron; and most of the recurring allegations that Ryan himself was directly involved in criminal conspiracies were probably also accurate. The mere fact that the “Age tapes” linked the names of Ryan and Murphy was therefore enough to give rise to an appearance of guilt by association.

But Murphy’s connection with Ryan had primarily been a professional working relationship between barrister and solicitor. At his first jury trial, Murphy gave evidence that although he was frequently briefed by Ryan during the 1950s, it happened less frequently thereafter; and that after having no contact for several years, they were brought together again in 1976 by the case of Sankey v Whitlam.

In that case, the Sydney solicitor Danny Sankey brought a private prosecution against Gough Whitlam and three of his ministers (Murphy, Rex Connor and Jim Cairns) on two charges arising out of “the Khemlani loans affair”: a statutory charge and a common law charge. Ryan was the solicitor for Cairns. On 9 November 1978, a High Court bench (not including Murphy or Barwick) unanimously held that the statutory charge had no basis in law; and on 16 February 1979, a magistrate found that there was “no case to answer” on the remaining common law charge. The conversations between Ryan and Murphy supposedly reproduced in the “Age tapes” took place primarily in the aftermath of that prosecution.

One of the allegations selected for hearing came directly out of that context: Allegation 20 was said to involve discussions of possible vengeance against David Rofe QC, who had acted as Sankey’s counsel. It was alleged that on 31 March 1979, and again on 7 February 1980, Murphy “did urge or encourage Morgan Ryan to cause harm to David Rofe.” Yet the Stewart Report had dismissed the conversations “as not being of any significance,” as had the Director of Public Prosecutions. Counsel assisting the parliamentary commission conceded that in fact the conversations “are vague”:

It may be that they can be construed as an attempt by the judge to instigate Ryan to bring about some misadventure to Rofe QC. The conversations can certainly be seen as “unseemly.” As they stand, however, it does not seem that they are capable of amounting to misbehaviour in and of themselves.

Three other allegations involving Ryan were also listed for hearing. Two of them involved incidents said to have happened after repeated questions in the NSW parliament about Ryan’s involvement in illegal immigration, and also in an alleged agreement with Murray Farquhar (Briese’s predecessor as chief stipendiary magistrate) for summary trial and lenient sentencing in a drug case (“the Cessna-Milner case”). Allegation 24 was that Murphy, in a conversation with Ryan’s wife, had said that Ryan should have an MP announce in the NSW parliament that he had made inquiries about Ryan and that Ryan had come up “smelling like a rose.” As to this, the commission’s counsel were sceptical: if such a suggestion was in fact made, it might have been “no more than a joke.” In any event, it “does not seem to us to be capable of amounting to misbehaviour in the relevant sense.” It was listed for hearing only because it “could conceivably be the subject of cross-examination.”

Allegation 23 was that Murphy had agreed to arrange a meeting between Ryan and an MP, Milton Morris, at which Ryan would ask Morris to intervene with the leader of the opposition, John Mason, asking Mason not to continue his attacks on Ryan. Ryan apparently hoped to put pressure on Morris by threatening him with exposure of his involvement in a tax avoidance scheme. Counsel were sceptical of this story, too: “It is plain that the judge has not aided and abetted, counselled or procured the commission of the offence of blackmail. Nor has he entered into any conspiracy with Morgan Ryan in relation to it.”

This allegation was listed for hearing primarily because Sergeant Paul Egge (one of the police responsible for tapping Ryan’s phone) had offered an explanation “which, if accepted, would implicate the judge in some form of conspiracy to commit blackmail, or at the least put him in the position of being an aider and abetter.” Yet counsel also noted that the Stewart Report had drawn “an adverse inference against the veracity of Egge in regard to this matter” and had also found that in fact “there was nothing whatever to blackmail Milton Morris about.”

Allegation 40, which was also listed for hearing, would have sought to challenge Murphy’s account of his relationship with Ryan by proving that the relationship was in fact much closer, and accordingly that in his evidence to the jury Murphy had been guilty of perjury. It is clear, however, that the attempt to establish a closer relationship was to depend on what might happen at a hearing: that is, on the possibility of eliciting damaging answers from Murphy by questioning him about allegations that were not themselves supported by sufficient evidence to warrant their selection for hearing.

For example, Allegation 4 was not to be listed for hearing; but because it involved trade in narcotics, the asking of questions about it might potentially have been used to suggest a connection not only with Ryan, but also with Saffron. The allegation was that Murphy, as attorney-general, had given favourable treatment to Ryan’s client Ramon Sala, who had been convicted of money smuggling and trafficking in narcotics. On conviction, the court had imposed a fine and ordered that Sala be deported. But after the fine was paid he was still in jail, and Ryan sent a telegram to the attorney-general’s department asking for his prompt release. After consulting the Customs service (who wanted Sala deported) and the Commonwealth Police (who wanted him detained), Murphy ordered not only that Sala be deported but that his French passport be returned to him (although the passport was now known to be false).

Allegation 4 was not listed for hearing, partly because it had been exhaustively explored at Murphy’s first jury trial, with no significant result. In any event, Murphy’s decision was clearly within his power under the Migration Act 1958, and reflected his consistently “strong concern” that people should not be kept in prison for longer than necessary. Counsel made it clear that, at least in this instance, any suggestion of a possible connection with Saffron should be dismissed as “remote.”

Allegation 19 concerned the transcript of a phone call on 20 March 1979, in which Murphy apparently insisted on reading Ryan a passage from a story about the Paris Theatre in that morning’s Sydney Morning Herald. He insisted that the story was “important” and that Ryan “should know” about it. In fact, as I pointed out in the Scutt book (page 233), what Murphy was insisting that Ryan “should know” was that Jim Cairns and Junie Morosi were seeking to use the theatre for a series of public lectures and screenings. It was therefore “obvious” (I wrote) “why Murphy was interested in the story, and why he thought that Ryan ought to be aware of it also.” But an account of the incident in the National Times on 20 September 1985 made no mention of Cairns or Morosi, and instead suggested that Murphy and Ryan were jointly engaged in a dubious real estate venture.

Nothing in the released material suggests any awareness that the conversation was actually concerned with the latest activities of Cairns and Morosi. It appears to have been interpreted rather as a possible reference to corporate interests associated with Saffron. Nevertheless, the allegation was not to be listed for hearing, since it was “impossible to spell… out of the alleged conversation” any “allegation of criminal behaviour or other misconduct which would be capable of amounting to misbehaviour.” Here again, the proposal that Murphy be questioned on this story was intended to elicit evidence of Murphy’s association with Ryan, and possibly also with Saffron.

Abe Saffron

Much of the more sensational media coverage of “the Murphy affair” over the years has sought to link Murphy’s name to that of Saffron, and three of the allegations selected for hearing are dependent on such a link. Allegation 25 would have sought to establish that Murphy (in response to a request from Ryan) made approaches to “persons in a position to influence” the decision, attempting to secure a contract for the remodelling of Sydney’s Central Railway Station for a company possibly owned by Saffron, or at least having his nephew as a member. Allegation 27 would have sought to establish that Murphy (again in a response to a request from Ryan) made approaches to Neville Wran on behalf of Saffron, attempting to secure a lease of Luna Park to a company possibly owned by Saffron, or at least having his son as a member. Allegation 11 would have sought to establish (apparently on the basis of a statement given by James McCartney Anderson, himself a notorious underworld figure whose testimony was hardly reliable) that, early in the Sankey prosecution, Murphy agreed with Ryan and Saffron that Saffron would try to persuade Sankey to withdraw the prosecution (presumably by intimidation).

In addition, Allegation 5 was that Murphy (as attorney-general) had given a direction back in 1974 that Customs surveillance of Saffron should be downgraded and that his baggage should not be searched. This last allegation, however, was not listed for hearing, since in 1984 a joint investigation by senior officers of the Customs service, the Australian Federal Police and the attorney-general’s department had concluded that the decision to downgrade surveillance was reasonable and appropriate, and was probably made by the comptroller of Customs rather than the attorney-general.

All four of these allegations seem at first sight highly improbable. The allegation relating to Luna Park seems particularly doubtful. It was said to be based on something heard in the tap on Ryan’s phone; yet there was nothing in the transcripts of the “Age tapes” to support it, let alone any actual tape. The allegation depended primarily on oral evidence by Sergeant Paul Egge; and even he was relying on a transcript he had seen, rather than a conversation or tape he had heard. The allegation relating to Central Station also seems to have depended primarily on evidence from Egge.

And yet, if these allegations could be read in the context of a known association between Murphy and Saffron, all four of them would immediately be accepted as probable. Accordingly, and especially in the National Times when “the Murphy affair” was at its height, a great deal of effort went into attempts to establish such a connection. In part these attempts depended simply on guilt by association: if Murphy was associated with Ryan and Ryan was associated with Saffron, then Murphy must be associated with Saffron. But some of these efforts were more specific, and are now reflected in several allegations not selected for hearing.

In particular, Allegation 3 would have sought to establish “a longstanding association” between Murphy and Saffron; that they were often together; that Murphy owned 5 per cent of the shares in Saffron’s Venus Room; and that Saffron or his associate Eric Jury provided women to Murphy for sex. The allegation was not listed for hearing, in part because when a representative of the commission “asked whether any link between Saffron and His Honour had been uncovered at any time by the NSW police,” he was told that, apart from the statement by McCartney Anderson, “no link between Saffron and His Honour had come to light.” A former associate of Saffron, James West, when questioned about Saffron’s connections, had said, “Well, Murphy is a, you probably know, Murphy’s Abe’s Man, that’s for sure,” but was unable to provide further particulars.

Again, Allegation 12 would have sought to establish that, together with Ryan and/or Saffron, Murphy was involved in an organisation for the illegal immigration of Filipinos and Koreans, and especially of Filipina women. But it was not listed for hearing because no evidence to support it could be found in any of the relevant files from the immigration department, nor in any of the extensive inquiries by the NSW police into the possible involvement of Ryan or of Saffron.

Finally, there were two particularly enigmatic examples of the unhelpfulness of the “Age tapes” — again not listed for hearing, but perhaps to be used as a basis for questions attempting to establish a closer connection between Murphy and Saffron. According to the transcript of the “Age tapes” for 7 February 1980, Ryan (in a phone call to Murphy) made a number of cryptic statements:

Well don’t forget every little breeze… Every little breeze to be told. That those other it’s very simple to three, when, if ever, and how’s it going to be done… The Lush or is it going to be the three, board of three… And don’t forget those pinball machines.

Murphy made only unresponsive replies like “Yeah, OK, terrific, right.” The statements were incoherent and apparently garbled and there was nothing to put them in context; but Allegation 21 would have treated the references to the “Lush” and the “board of three” as referring to the proposal of the Lusher Inquiry into New South Wales Police Administration for the establishment of a NSW Police Board, while Allegation 22 would have treated the reference to “pinball machines” as referring to the fact that Saffron’s son Allan was seeking to obtain the exclusive rights to import a particular type of pinball machine.

Neither allegation was listed for hearing because, even if the transcript was accurate, the quoted statements “consist only of cryptic references not capable of investigation as allegations of substance.” But counsel noted that, as with Allegation 19 (the Paris Theatre allegation), if Murphy were to be cross-examined in relation to Allegation 40 then these other allegations might provide a useful basis for questions which could help to establish a closer link between Murphy and Ryan, and possibly between Murphy and Saffron.

In fact, quite apart from the fact that the only real evidence of any link between Murphy and Saffron had come from McCartney Anderson, I argued in the Scutt book (page 231) that the transcripts from the “Age tapes” had themselves made it clear that no such link existed. The basis for Allegation 26 (the Yuen matter) was the transcript of a phone call from Ryan to Saffron, in which Ryan reported a phone call he said he had received from Murphy. The allegation was not listed for hearing, partly because it was unsupported by evidence: in particular, there was no record of Murphy in fact having made such a phone call.

The gist of this allegation was that Robert Yuen, a neighbour of Murphy’s, had told him that police had raided his illegal casino despite bribes to a senior policeman; and Murphy had rung Ryan to say, in part, “this is a disgraceful turnout… who is this fellow…? … I’ve a good mind to speak to N. about it.” But it was clear that, if Murphy did make such a call, he did so indignantly: “this fellow” could only be the senior policeman allegedly accepting bribes. What was even clearer, as I wrote in the Scutt book, was that in a series of phone calls between Ryan and Saffron over the next three days:

Saffron, in particular, is struggling to interpret Justice Murphy’s intervention without any basis in knowledge or understanding of Murphy’s attitudes or personality. (“I wonder what he meant by he doesn’t like him? In which respect? We have to work that out.”) It is clear, if the transcripts are roughly accurate, that Saffron is looking for ways in which Murphy might be appeased or dissuaded from further inquiry; it is equally clear that he is doing this with no personal knowledge of Murphy at all.

Christo Moll

At the time of Murphy’s friendship with Junie Morosi, and long before her later notorious relationship with Jim Cairns, she was married to David Ditchburn. It was Morosi who introduced Murphy to his wife-to-be, Ingrid.

Ditchburn was the Australian representative for Ethiopian Airlines. In that capacity, in 1971, he appointed Ingrid Murphy as a public relations consultant for the airline. This may have brought her into contact with Mrs W.A. McKenzie (formerly Mrs Murray Quartermaine).

As attorney-general, Murphy appointed 103 civil marriage celebrants, including W.A. McKenzie, U. Quartermaine, C.M. Ditchburn, Junie Morosi… and, intriguingly, an R.G. Withers, who shared a surname and initials with the Liberal senator who led the charge against the Whitlam government throughout 1975. He also appointed David Ditchburn to an unpaid position on the Film Board of Review.

While some of these appointments were controversial at the time, the only allegation arising from any of this was Allegation 7: that Ingrid, through her position with the airline, was entitled to free travel for herself and her family, and that she and Murphy twice availed themselves of that entitlement for overseas trips. The allegation was not listed for hearing because Ingrid’s entitlements were standard practice in the airline industry, and clearly extended to her husband. “Whatever view one may take as to the propriety of a law officer accepting free or discounted travel… the facts disclosed could not… amount to misbehaviour.”

But Ingrid’s contact with Mrs McKenzie may have brought her within the ambit of Mrs McKenzie’s former husband, Murray Quartermaine, and thus within the ambit of his former business partner Christo Moll — described in the commission’s papers as “a criminal who has fled the country and is wanted for questioning regarding matters of tax evasion, currency smuggling and diamond smuggling.”

From 1972 onwards, Moll was responsible for an elaborate scheme of tax avoidance, primarily for the benefit of medical practitioners in Western Australia. When the scheme was discovered many doctors were forced to pay large sums in additional tax, and some were driven into bankruptcy. But Moll himself had left Australia in 1982, apparently to escape a judgement against him secured (in a South African court) by his former business associate Quartermaine. In what apparently began as a plan for revenge against Quartermaine, Moll then began to forge a variety of documents, aimed first at Quartermaine himself and then at anyone within his ambit, including Ingrid and Lionel Murphy.

For example, Allegation 30 concerned a letter purportedly written by Dr Michael Tiller, a beneficiary (and ultimately a victim) of Moll’s tax avoidance scheme. The letter was addressed to Quartermaine, and said in part: “Can you arrange another meeting with Lionel Murphy as promised as you may be able to obtain his support or his advice.”

The allegation was not listed for hearing. Dr Tiller denied having written the letter, and was able to prove that he was away in Canada when the letter was written. He believed that the letter had been forged by Moll. The Australian Federal Police agreed, concluding that Moll’s animosity to Quartermaine had led him:

to cause the greatest possible mischief for him through the creation of false documents… No theory has been advanced… as to why Mr Justice Murphy and his wife may have been included in these possibly false documents other than the suggestion that he was a prominent public figure at that time.

A number of Moll’s stratagems seem to have come to the attention of the commission through Marshall Wilson and Steve Foley, formerly reporters for the Age, who had apparently met Moll in Europe in 1984. In Allegation 8, Moll told them that he had sold Ingrid Murphy a diamond, allegedly worth $7800. Apparently this was initially thought to need further investigation because it might suggest that Murphy had been given a secret commission, perhaps relating to prosecution for tax fraud. Nevertheless, the allegation was not listed for hearing. Moll had supplied the reporters with an alleged valuation of the diamond by a jeweller in Amsterdam, and also a cheque stub supposedly recording the purchase. But the cheque stub had clearly been doctored, and the Dutch jeweller insisted that invoices apparently signed by her had in fact been fabricated by Moll. Thus both documents appeared to be false, and there was “considerable doubt… whether the relevant diamond ever existed.”

Finally, Allegation 6 suggested that, in March 1975, an East German national named Jochen Zundermann had opened two safety deposit boxes in a Swiss bank, one for Murphy and Gough Whitlam and one for Murphy and Junie Morosi (who was said to hold the key to both boxes). It was also said that 400 shares in the bank (supposedly worth $700,000) had been allotted to Murphy. The timing coincided with that of the Khemlani loans affair; and if Zundermann was party to a conspiracy relating to the loans affair… and if Murphy had a deposit box in a Swiss bank… and if the box could be opened… it seems to have been thought that the box might turn out to contain evidence linking Murphy to that conspiracy. In 1976 R.J. Ellicott (as attorney-general) had in fact initiated inquiries into the loans affair, in which Zundermann’s name featured.

But this allegation also was made by Moll and had reached the commission through Wilson and Foley. They were able to produce photocopies of Swiss bank documents supposedly proving the allegation, claiming that some unknown person (presumably Moll) had left the photocopies under their hotel door. But the photocopies may have been forgeries — and whether they were first produced in 1975 by Zundermann, or more recently by Moll, everything that was known about both Moll and Zundermann appeared to make that more likely. A decision was made to ask the Swiss government whether the photocopies were genuine, but before that could be done the commission’s inquiries were terminated. ●

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Clash of values? Prime minister Malcolm Turnbull (left) and Chinese president Xi Jinping at the West Lake State Guest House in Hangzhou, China, in September last year. Wang Zhao/EPA/Pool

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