Baylis v New Zealand Customs Service
[2017] NZHC 3125
•14 December 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2017-419-6 [2017] NZHC 3125
BETWEEN CLINTON BARRY BAYLIS
Appellant
AND
NEW ZEALAND CUSTOMS SERVICE Respondent
Hearing: 16 November 2017 Counsel:
Appellant in person
J Tarrant for RespondentJudgment:
14 December 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 14 December 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Crown Solicitors, Hamilton
BAYLIS v NEW ZEALAND CUSTOMS SERVICE [2017] NZHC 3125 [14 December 2017]
[1] Mr Baylis was found guilty at a Judge alone trial on one charge of possession of an objectionable publication,1 a further twelve charges of being knowingly involved in the distribution of objectionable publications,2 two charges of knowingly exporting an objectionable publication,3 and one charge of knowingly importing an objectionable publication.4
[2] He was sentenced to three years and two months’ imprisonment on the distribution charges, one year’s imprisonment on the possession charges, and a further year’s imprisonment on the charges under the Customs and Excise Act 1996.5 All terms are to be served concurrently.
[3] Mr Baylis now appeals against conviction on the ground of counsel incompetence. In accordance with the approach laid down by the Court of Appeal in Hall v R,6 independent counsel was retained to examine the grounds of appeal. In a memorandum dated 29 May 2017, independent counsel, Ms Sheila Cameron, concluded the grounds of appeal were not arguable and there were no other potential grounds that might be arguable. Mr Baylis, nevertheless, elected to proceed with the appeal self-represented.
Background
[4] The background to the present appeal is set out in a careful and detailed judgment of Judge R G Marshall.7 I summarise the Judge’s outline of the key facts in his judgment and sentencing decision for the purposes of setting out the background to the appeal. His account of these facts is not challenged.
[5] The sixteen charges relate to offending between 8 March and 5 August 2014. The genesis of the prosecution rested with two separate sources. First, identification by the Queensland Internet Unit that objectionable publications had been sent to
“[email protected]”. An email was sent from that email address containing
1 Films, Videos and Publications Classification Act 1993, s 131.
2 Sections 123(1) and 124.
3 Customs and Excise Act 1996, s 209(1A)(a).
4 Section 209(1A)(a).
5 New Zealand Customs Service v Baylis [2016] NZDC 2740.
6 Hall v R [2015] NZCA 403.
7 New Zealand Customs Service v Baylis [2017] NZDC 26122.
12 image files, 11 of which were objectionable. The email did not reach the recipient as Microsoft held the email. The email was then identified by an undercover detective from the Queensland Police in Australia. He sent an email to
”[email protected]”, and received a response on 31 March 2014 with an attachment of 75 image files and one video file (65 of which were deemed objectionable). They included images of adult males performing grossly indecent acts on young girls and violating them.
[6] The second source was notification of the National Centre for Missing and Exploited Children (NCMEC) by Microsoft that images of young girls engaged in sexual acts with adult men had been uploaded to a SkyDrive account belonging to a user named “Clint Baylis”. This occurred at the same time as an undercover inspector from the Department of Internal Affairs in New Zealand was sent 733 images and 20 video files (513 of which were deemed objectionable) by [email protected]. They contained, among other things, sexual violations of a four year old female child, and an eight year old male child having intercourse with a seven year old female. A further email was sent to the undercover inspector with a link to 27 image files, 24 of which were objectionable.
[7] Subsequently, a search warrant was executed at Mr Baylis’ residential address. A Sony Vaio laptop and iPhone were seized, and forensic analysis undertaken. Analysis of the laptop identified folders that had previously been deleted; forensic recovery revealed in July 2014 a user downloaded to Mr Baylis’ user profile 100 images from a Russian site, Yandex.Disk, 31 of which were considered objectionable as they depicted the sexual abuse of children. They were downloaded in a folder called “Cuties”. The operating system for the laptop was set up under “[email protected]”. Forensic analysis also concluded the user was accessing the [email protected] and [email protected] accounts, as well as Vodafone, PowerShop, MINDA Milk, Q Card, MetService and Yandex.Disc websites.
[8] The iPhone required a pin to gain access. Analysis revealed the Yandex.Disc website, eventfinda, Facebook, imgsrc.ru, New Zealand Dating and MetService websites were used, among others. The address on the phone was [email protected]. It also revealed KIK Messenger had been installed and set
up under the email account [email protected]. KIK Messenger is a message sending/receiving facility which allows the user to send and receive video clips. The iPhone user had been actively distributing objectionable publications between July and August 2014. The “Cuties” folder link, originally stored on the laptop in Yandex.Disk, was subsequently distributed via KIK Messenger to a recipient called a_cain13. A total of 210 objectionable images and 32 videos were located by Customs on the phone.
[9] In total, 906 objectionable images were located, and 53 objectionable publications. Most of these depicted the sexual abuse of children.
Summary of the decision of Judge R G Marshall
[10] After carefully laying out the background, the Judge notes that the five charges from 8 March to 1 April 2014 cannot be traced back to a particular device, but involve a link to Mr Baylis through his gmail and SkyDrive accounts and to emails with the undercover police investigators through the “snag snag” user under the [email protected] account. The ten charges from 12 July 2014 to 5 August
2014, excluding the 29 July 2014 charge, relate to KIK messages containing the “Cuties” folder link from the [email protected] account to the a_cain13 account, which contained 160 objectionable publications. The charge on 29 July 2014 relate to the download and importing of a folder named Inna(2).zip from the Yandex.Disc website.
[11] The Judge summarises the defence case which, in short, attributed access to the objectionable material to his girlfriend, Ms Light. The judgment records:
[16] [Mr Baylis] said only she realistically had access to his devices. He accepted after Ms Light had her own laptop in 2013 she did not have a need to use his. He said Ms Light only asked to use his phone on the odd occasion if she had no credit left on hers and he was at home. The passwords he said were autosaved on the laptop, except his ANZ account and he would check accounts and applications such as power, Vodafone, MINDA Milk which was part of his employment, Facebook, Q Card. To install the Kik Messenger application on the iPhone someone would have needed to know not only his pin number but his Apple ID password to download the application on the snag snag user Hotmail account. As far as objectionable publications were concerned he considered they were highly illegal and disgusting.
[12] The Judge also addresses the rebuttal evidence of Ms Light. He records she stated she did not know his laptop password or phone pin number, did not use them, and had nothing to do with accessing his email accounts or internet. She also denied accessing the Yandex website on his computer, sending emails, accessing SkyDrive and uploading images. The Judge notes that when shown images that had been sent, Ms Light seemed genuinely shocked and horrified by the content, finding her reaction was instant and accepted it as uncontrived. The Judge also notes Mr Baylis’ clear position that the only person who had access and the opportunity to use his iPhone and laptop to commit the offences was Ms Light. He suggested she had done it either to set him up or for her own, presumably sexual, gratification.
[13] The Judge states the sole issue was whether the Crown could prove beyond reasonable doubt it was Mr Baylis who committed the offences, and exclude as a reasonable possibility that it was Ms Light. The Judge rejects Mr Baylis’ evidence, observing the analysis of Mr Baylis’ iPhone and laptop showed he must have been using the particular devices in close proximity to the offences occurring. He notes this happened coincidentally on a number of occasions and refers to some illustrations. He concludes that, in his view, a clear pattern of use strongly indicates Mr Baylis was the user of the laptop. The examples given by the Judge include:
(a) On 8 March 2014 at 8.24 pm, the user of the laptop had been looking at the Fencepost website for new jobs in the farming sector. At 8.29 pm, the user of the laptop had been looking at Outlook, the email servers at the [email protected] site. Five minutes later the “snag snag” email account was checked.
(b)On 20 July 2014 at 9.49 pm, Clint Baylis’ Facebook account was accessed. At 10.40 pm the “snag” account was accessed, and at 10.42 to 10.43 pm the Yandex.Disk website. At 10.52 pm, the Vodafone account was accessed, before the user returned two minutes later to look at the Yandex website again. At 10.58 pm Minda Milk was accessed, a programme Mr Baylis used for his work.
(c) On 29 July 2014 at 6.53 pm, the laptop user was on Facebook, and a minute later on the Q Card website. At 6.55 pm the user was looking at [email protected], as well as the “snag snag” account. A minute later the user visited the PowerShop and ANZ Bank websites, the second of which requires a password. At 7.04 pm the user was viewing Vodafone credits. At 9.12 pm on the same evening the laptop user was on Facebook and Yandex at 9.16 pm, MetService at 9.21 pm, and downloading and importing objectionable publications from Yandex between 9.31 and 9.39 pm. That download involved 100 images, of which 31 were objectionable publications.
[14] The Judge also identifies other instances of personal use of Mr Baylis’ devices, in conjunction with or proximate to downloading or viewing of objectionable material.
[15] The Judge then turns to examine Ms Light’s evidence. He finds it unlikely she would have set up Mr Baylis. He notes, when speaking to Mr Southwell, a Customs employee involved in the execution of the search warrant, that he made no mention of Ms Light. This, he considers, strongly supports Ms Light’s account and indicates Mr Baylis’ evidence at trial was a lie. He notes Ms Light also impressed in her evidence that she has only had limited involvement with his devices. He adds Mr Baylis accepted Ms Light would have limited opportunities to use his iPhone. He also accepts her evidence that she did not know the password for his laptop or the pin number for his phone.
[16] The Judge therefore concludes he is satisfied beyond reasonable doubt Mr
Baylis was the person in control of the devices during the offending.
Appellate jurisdiction
Trial counsel error
[17] As noted, Mr Baylis alleges incompetence by his trial counsel, Mr Robert
Quin. He asserts:
(a) lack of support from his lawyer from the start;
(b) inadequate preparation towards trial; and
(c) insufficient questioning of a key witness – Nicola Light (Mr Baylis’
former partner and who he maintains committed the offending).
[18] Evidence was called before me in relation to these matters.
Evidence on appeal
Mr Baylis
[19] Mr Baylis filed an affidavit. In it, he addresses each ground of incompetence. On the first aspect, lack of support, he says Mr Quin advised him he had no chance of blaming Ms Light, and that the evidence against him was strong. He said he asked
Mr Quin to get the opinion of an information technology forensic expert, who concluded it was not possible to get remote access to the laptop at home. He says it is stated that the only person who could get access to the computers was his former partner, Ms Light.
[20] Mr Baylis says Mr Quin was not happy that he was blaming Ms Light, noting a private investigator hired by Mr Quin reported he was in total denial. He says the private investigator did not review all the relevant disclosure to be able to interview Ms Light on her exact whereabouts at the relevant times. He also says Mr Quin had not briefed the private investigator properly, and had accepted his opinions on very limited investigations.
[21] Mr Baylis then says he had advised Mr Quin the objectionable material could be linked to his email address, so it was essential for Mr Quin to produce evidence of Mr Baylis’ whereabouts at the times in question, to show he could not have committed the offending. He says this would have assisted his defence, but was not done.
[22] On the second aspect, Mr Baylis says his trial needed far more preparation. He says Mr Quin should have gone through all of the instances in which the objectionable material was accessed, and then his precise whereabouts at each relevant time. He says the prosecution was very effective in cross-examining on when the objectionable
material was accessed and where from. On his account, he was not expecting the type of questioning the prosecutor put to him, namely in relation to his whereabouts at the times objectionable material was accessed. He says if Mr Quin had prepared him better, he would have been able to give more full and comprehensive evidence.
[23] On the third aspect, insufficient questioning of Ms Light, Mr Baylis says when Mr Quin questioned Ms Light, there was not enough evidence from the previous witnesses, including himself, to question her properly. He says he did not put enough specific detail to her to prove it was possible she had accessed the objectionable material. He also says Mr Quin did not ask him any questions about the negative history between him and Ms Light. In that regard, he notes after they met in October
2012, their relationship was great for about the first six weeks, but declined after that. He says they had issues around money and that, by February 2013, they were in an on-and-off relationship. He refers to the fact she started spending money for household matters on gambling. He says by September and October 2013, the relationship really started to decline. On one occasion, the police were called after a physical altercation. He says he had been manipulated by her and used financially on many different occasions. He also referred to incidents of physical and emotional abuse that were not explored by Mr Quin.
[24] While not accepting the evidence, the Crown did not cross-examine Mr Baylis before me, preferring instead to rely on the evidence given by Mr Quin.
Mr Quin
[25] Mr Quin also filed an affidavit. He notes he instructed Bruce Currie, a private investigator, to make enquiries on behalf of Mr Baylis. Mr Currie reviewed the evidence, interviewed Mr Baylis, Ms Light and another former partner of Mr Baylis, and found nothing to suggest Ms Light or any other person was involved. He says Mr Currie in fact advised him Ms Light was supportive of Mr Baylis and believed he was innocent. Mr Quin says he discussed Ms Light with Mr Currie again after receiving the forensic report. He reiterated his view Mr Baylis was clearly responsible, and there was nothing to be gained from speaking to Ms Light again. Mr Currie produced a report summarising his findings, dated 10 August 2015. Copies of both Mr Currie’s
initial and final report are attached to the affidavit. Mr Quin discussed Mr Currie’s report with Mr Baylis over the phone, and the use of the KIK Messenger application on his phone, as detailed in the report. Mr Currie had advised the messages were highly incriminating and confirmed trading in child pornography. Mr Quin notes in response Mr Baylis denied any knowledge of it and stated he had been hacked, or was being framed by Ms Light. He says Mr Baylis was unable to explain how KIK Messenger had been placed onto his phone, and denied knowing it was there, despite it having been there for a lengthy period of time.
[26] He confirms Mr Baylis instructed him to engage a forensic expert to establish whether he could have been hacked by an outside source. The report concluded it had not been hacked.
[27] Mr Quin notes he prepared for trial on the basis Mr Baylis did not trade in the objectionable material, and the only person it could have been was Ms Light. He says he discussed Ms Light’s motivation to frame Mr Baylis with him on a number of occasions, but that Mr Baylis was unable to provide any good reasons why she would. He recalls being instructed that their relationship was difficult, but says none of this appeared to provide a basis for Ms Light engaging in an elaborate plot to frame Mr Baylis.
[28] He says he also briefed Mr Baylis, and Mr Baylis’ mother and brother. They had concerns about Ms Light and the relationship but, again, were unable to provide any reasons as to why she would set Mr Baylis up in this manner. He says his advice to Mr Baylis was that blaming Ms Light was unlikely to be successful, could inflame the situation, and lead to a harsher sentence. He says he advised Mr Baylis that if he was to make such serious allegations about another person, his ethical obligations meant he would need some evidence of substance before they could proceed down that path.
[29] Mr Quin also says the issues of timesheets and alibi evidence were discussed with Mr Baylis on more than one occasion and that it was his view they were unlikely
to be of any assistance, given the length of time over which the offending took place and the varied times of day and night the indecent material had been accessed. He adds
he went through a number of the specific times that objectionable material was accessed. He says Mr Baylis’ answer in each instance was that it simply wasn’t him. Mr Quin says he advised Mr Baylis he was likely to be cross-examined in relation to specific instances, and should review the material carefully prior to trial. He says he also highlighted specific instances where objectionable material had been accessed in close temporal proximity to legitimate websites, including farming, weather and banking websites. He says Mr Baylis gave the same explanation regarding the texts and KIK messages sent and received from his phone.
[30] Generally, Mr Quin says there did not appear to be anything in the material provided by Mr Baylis that would support his allegation Ms Light had framed him. Mr Quin also says he was not advised at any stage of any physical altercation or physical abuse, except that Mr Baylis’ mother advised him she believed Ms Light had been physically and mentally abusive. He says he included this in her brief of evidence, but that she did not in the event give that evidence at trial.
[31] He notes that at trial, at the conclusion of the defence case, Ms Light was called to give rebuttal evidence. Instructions were taken from Mr Baylis about this and Mr Quin says he did not appear to be overly concerned, saying, “she will deny it anyway”.
[32] He also says a brief of evidence from Ms Light was discussed with Mr Baylis prior to the recommencement of trial, but Mr Baylis did not take “great issue” with the contents of Ms Light’s brief. He says he cross-examined Ms Light on the basis there were times when she had access to Ms Baylis’ laptop and phone. She denied this. She also denied installing and using the KIK Messenger application and websites on Mr Baylis’ devices.
[33] At hearing before me, Mr Quin was cross-examined by Mr Baylis. Mr Quin was unmoved on the key complaints. More specifically, he confirmed he was thoroughly prepared for the trial, including engaging a forensics expert, briefing Mr Baylis on spreadsheets setting out the times the illicit material was accessed, and forewarning Mr Baylis he may be questioned about those entries. Mr Quin also emphasised he was not made aware of any specific incidents of abuse by Ms Light
that might properly enable evidence, either in-chief or in cross-examination, to be brought.
Jurisdiction
[34] Appeals against conviction at a Judge-alone trial are allowed where the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or more generally where a miscarriage of justice has occurred for any reason.8
[35] Where trial counsel conduct is at issue, the ultimate question is whether there has been a miscarriage of justice.9 To answer that question, it is necessary to ask, first, whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice. Alternatively, where counsel has made a tactical or other decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed, even though there was a possibility that the decision affected the outcome of the trial.10
There may also be cases, though rare, where there was no error on the part of counsel but the appeal will be allowed because there is nevertheless a real risk there has been a miscarriage of justice.11 There is no suggestion in the appeal that this last category is in issue.
Analysis
[36] I turn then to examine each of the alleged grounds of incompetence.
Lack of support, inadequate preparation and failing to brief the defendant
[37] Mr Baylis submits Mr Quin did not:
(a) put enough effort into his case;
8 Criminal Procedure Act 2011, s 232(2)(b), (c).
9 Hall v R [2015] NZCA 403 at [1], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at
[70].
10 R v Scurrah CA159/06, 12 September 2006, [17]-[18].
11 At [20].
(b)properly prepare him for cross-examination, especially on the spreadsheets disclosed by Customs detailing the incidences of access to illicit material; or
(c) seek out information to support his case, namely information that might have shown he did not access the illicit material at the times shown on the spreadsheets.
[38] There is nothing in these complaints. I prefer Mr Quin’s account of what happened. It is supported by the objective facts. Additionally, Mr Quin came through cross-examination wholly unscathed.
[39] Mr Quin clearly prepared for and ran the trial based on Mr Baylis’ explanations for the presence of the objectionable material – that is hacking, or that it was in fact Ms Light who accessed the material. To illustrate, Mr Quin instructed forensic experts to advise whether Mr Baylis’ explanation that someone else had been using the devices or that the devices had been hacked was plausible. It so happens that the advice was very unhelpful to Mr Baylis: there was nothing to suggest his devices had been hacked. It also so happened that the frequency with which the objectionable material was accessed, at all times of day, and in close temporal proximity to legitimate websites for banking and farming, was very unhelpful to Mr Baylis.
[40] I accept Mr Quin’s evidence that he reviewed the spreadsheets disclosed by Customs; that he advised Mr Baylis he was likely to be cross-examined in relation to specific items; that he should review the material carefully prior to trial and that Mr Baylis’ explanation for the identified incidents (of which there were hundreds) was that it was not him. In this regard, I also accept Mr Quin’s evidence that it is his practice to provide copies of disclosure materials to defendants, and it would have been remarkable if the spreadsheets referring to the incidents of access were not provided to Mr Baylis. On this, there is nothing in the notes of evidence recorded at trial to suggest Mr Baylis was surprised when referred to the relevant exhibits.
[41] Mr Baylis nevertheless suggested that more should have been done to show it was not him using the devices when the access to the objectionable material occurred,
by cross-checking the entries against, for example, his work timesheets. He suggested he may have been at work when access occurred, or asleep, as says he often is in the afternoon. But it is fanciful to suggest that more extensive cross-checking of the entries would have assisted Mr Baylis. There is certainly no cogent evidence before me that shows Mr Baylis was elsewhere occupied at the time of any of the entries. Conversely, the several hundred entries spanned several months, and were spread across the day and night. The prospect of Mr Baylis showing he did not access his devices at all, or rarely, at the times of the entries across entire period of offending is remote. On the contrary, as the cross-examination at trial in fact revealed, Mr Baylis was in possession of the devices at material times, often accessing websites he admitted to visiting minutes before or after accessing the objectionable material. To illustrate, as well as the examples identified by Judge Marshall, on one occasion, objectionable material was sent 10 or 15 minutes after the phone was used to text a colleague of Mr Baylis’; on another, a KIK Messenger message was opened three minutes before Mr Baylis received a call from a colleague.
[42] I therefore agree with Ms Tarrant that Mr Quin did not fail to adequately support Mr Baylis or prepare his defence in a way that would have made any difference to the outcome and thereby cause a miscarriage of justice.
Insufficient cross-examination of Ms Light
[43] This ground is also meritless. I preface this analysis by observing Mr Quin had next to nothing to work with for the purposes of cross-examination. Mr Baylis claims there was evidence showing he had an acrimonious relationship with Ms Light which might have explained why she set him up, or alternatively used him as a foil. But other than vague references to abuse, Mr Baylis did not produce any material documenting it. He referred to his mother’s and brother’s awareness of it, yet there was no evidence produced from them to support this allegation.
[44] In this regard, I prefer Mr Quin’s evidence that the abuse was mentioned by Mr Baylis’ mother, who was briefed to give this evidence, but did not do so at trial. In reality, therefore, there was nothing concrete upon which meaningful evidence-in-
chief and cross-examination might have been constructed on the issue of abuse. In any event:12
(a) I am not satisfied that competent counsel standing in Mr Quin’s shoes would have pursued unsubstantiated allegations of abuse – it would not have been at all well-received by the trial Judge; and
(b)even if some form of abuse could have been shown, it would have provided a weak premise only to rebut the very strong evidence of possession of the devices and access to them at the material times by Mr Baylis.
[45] As to the wider claim that Mr Quin failed to properly pursue cross-examination of Ms Light, a brief analysis of the notes of evidence establishes Mr Quin, in accordance with his obligations to the client and to the Court, complied with his cross- examination duties. The summary provided by the respondent is sufficient to demonstrate this point, namely, that Mr Quin put to Ms Light the following:
(a) she had been spending long periods of time at home prior to August
2014 (which she accepted);
(b) she could access the laptop (which she denied);
(c) she had an account on Mr Baylis’ laptop in the past (which she accepted, though said it had since been removed);
(d)no password was required to gain access to Mr Baylis’ laptop (which she denied);
(e) she had opportunities to use Mr Baylis’ iPhone (which she denied);
12 Applying the threshold test for counsel competency for less fundamental trial decisions in Hall v R [2015] NZCA 403 at [77]: “… if counsel fail to follow instructions in making less fundamental trial decisions, a miscarriage of justice will generally only arise if the decision was not one a competent lawyer would have made and if what occurred may have affected the outcome.”
(f) she had installed the KIK Messenger application on Mr Baylis’ iPhone
(which she denied);
(g)she used the KIK Messenger application to send video and photos to other people (which she denied);
(h) she used Mr Baylis’ laptop to access his email (which she denied);
(i)in March 2014, she used Mr Baylis’ laptop to access his Hotmail account to send emails (which she denied);
(j)she was using the email accounts and sent a number of messages to people with image files (which she denied);
(k)specifically, she used the laptop to access the Yandex website (which she denied);
(l)she accessed Yandex on the laptop and Mr Baylis’ iPhone (which she denied);
(m)she accessed Microsoft SkyDrive using Mr Baylis’ laptop (which she denied); and
(n)she uploaded a number of images to SkyDrive using the laptop (which she denied).
[46] I am therefore satisfied Mr Quin did all he was able to for the purposes of cross- examination of Ms Light, in putting the defendant’s explanation squarely before the Court.
Summary
[47] Overall, this is not a case where it is claimed Mr Quin failed to follow instructions on fundamental matters. Rather it is Mr Baylis’ case that he did not do enough. This central complaint is without merit. Mr Quin took all steps that could be
expected of competent counsel on the very limited material available to him. Furthermore, having reviewed the evidence and the judgment, there is no proper basis to suggest that the trial miscarried. The evidence against Mr Baylis was compelling and his explanation for the offending, that Ms Light did it, was and remains without merit.
Outcome
[48] The appeal is dismissed.
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