England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(HIS HONOUR JDUGE DARROCH)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th August 2007

Lord Justice Wall:

1. The appellant, Mr J-C, appeals against a committal order made by HHJ Darroch sitting in the Norwich County Court on 26 June 2007. The appellant's notice was filed on 30 July, so he is out of time but within the documentation itself there is an explanation provided which is satisfactory. The point has not been taken on this appeal and therefore, speaking for myself, I would extend the time for filing the notice.
2. The committal proceedings arose out of orders made in the same court by District Judge Birchall on 23 March 2007. The orders, the copies of which were only made available to us yesterday, are at pages 123 to 126 of our bundle. They were made in proceedings between the appellant and a lady called SM under part 4 of the Family Law Act 1996. There is both an injunction and an order giving a power of arrest. All I need say about the background is that the appellant and Miss M had been engaged in a sexual relationship. They had lived together in Miss M's accommodation in Great Yarmouth. They are now separated. However, they have a baby. She was born on 14 December 2006 and it appears that she is currently the subject of an interim care order made in favour of the Norfolk County Council.
3. The orders which Miss M obtained against the appellant on 23 March were, as I say, firstly a non-molestation and occupation order under part 4 of the 1966 Act and secondly, a power of arrest. The document which we now have at page 123 reads as follows:

"Upon hearing Counsel for [Miss M] and upon hearing Counsel for [Mr J-C]

It is ordered that:

(1) Having left 23 Beavans Road Great Yarmouth Norfolk, the respondent [Mr J-C] shall not return to, enter or attempt to enter or go within 100 metres of it.

(2) The respondent [Mr J-C] is forbidden to use or threaten violence against the applicant [Miss M] and must not instruct, encourage or in any way suggest that any other person should do so.

(3) The respondent [Mr J-C] is forbidden to intimidate, harass or pester the applicant [Miss M] and must not instruct, encourage or in any way suggest that any other person should do so."

4. It is apparent that the appellant was represented before the District Judge and was also present. The power of arrest which was granted on the same day repeats paragraphs 1 and 2 of the substantive order and continues:

"The court is satisfied that the respondent has used or threatened against the applicant

[Miss M]

and that there is a risk of significant harm to the applicant attributable to the conduct of the respondent if the power of arrest is not attached immediately."

5. We have not been provided with any of the material upon which the District Judge made the injunction and granted the power of arrest but since the judge, in what is in my view an admirably succinct judgment, makes it clear that the order was itself properly made as well as being properly served, no point in my view can be taken on that. Clearly, the District Judge had material upon which to make the injunction and upon which to order the power of arrest.
6. Mrs Voelcker for the appellant takes the point, I think, with some hesitation, and in my view justifiable hesitation, that the order made by the District Judge refers to 23 Beavans Road, Great Yarmouth, whereas Miss M's address is 23 Beavans Court, and in paragraph 2.5 of the grounds of appeal this point is expanded. What she there says is:

"[The judge] was wrong in law in that at the time of the alleged incident the injunction specified that the Appellant was forbidden from returning to or entering or attempting to enter or going within 100 metres of 23 Beavans Road, not Beavans Court, and therefore attendance at Beavans Court would not put him in breach of the order."

7. Mrs Voelcker frankly acknowledges that she did not take this point before the judge and in my view she was wise not to do so. In my view, it is a thoroughly bad point and I express some surprise that she persists in it this afternoon. She does so, however, because she takes the view and so submits that because these are committal proceedings, everything has to be in apple pie order, and if there was a mistake on the face of the order, it is one on which the appellant is entitled to rely. As I put to Mrs Voelcker in argument, had she taken this point before the judge, the judge would have immediately recognised that it was a slip and would have corrected it under the slip rule. For that reason alone, it seems to me that we should not allow Mrs Voelcker to take the point here.
8. Furthermore, the notice to show cause gives the right address and there are other substantial reasons why the point is a bad one. I have already indicated that the appellant was both present and represented when the orders were made by the District Judge. We have not been provided any evidence, as I indicated, but it is absolutely clearly beyond peradventure that when the appellant left the District Judge's court or the District Judge's chambers on 23 March, he knew precisely what he was not allowed to do. The order itself of course records that he had left the particular address. He knew very well that he had not been living at 23 Beavans Road, wherever that is, and he knew that Miss M was still living at 23 Beavans Court. He claimed he knew he was not allowed to go within 100 metres of her address.
9. In my view, the error should have been pointed out to the District Judge at an earlier stage. It was in fact corrected subsequently by an order made by HHJ Barham but in my view it is quite impermissible for a contemnor to attempt to rely on what is purely a technical slip in the making of the order in order to seek to avoid a charge of contempt. As I shall say later in this judgment, the jurisprudence in my view is full of cases in which this court has made it absolutely clear that what matters is justice and fairness and not points of technicality, and if a technical point has not resulted in unfairness then no weight will be given to it. As I indicated, the point was not taken below. The judge took the view that the injunction had been validly made and validly served, and in my view he was entitled to proceed on that basis, particularly as the notice to show cause identified the correct address.
10. The judge was faced with a notice to show cause, which contained eight specific allegations:

"TO [Mr J-C]

On the 23rd March 2007 the Court made an Order that:-

1. Having left 23 Beavans Court, Great Yarmouth, Norfolk you were not to return to, enter or attempt to enter or go within 100 metres of it;

2. You were forbidden to use or threaten violence against the Applicant and not to instruct, encourage or in any way suggest that any other person should do so;

3. You were forbidden to intimidate, harass or pester the Applicant and not to instruct, encourage or in any way suggest that any other person should do so.

This Order was to remain in force until the 23 March 2008.

[Miss M] has applied for an Order that you should be committed to Prison. It is alleged that in breach of the Non-Molestation Order and Power of Arrest, you:

a) on Sunday 25th March 2007, came to the Applicant's home and smashed a living room window at the rear of the property

b) on Monday 26 March 2007 at 6.45pm, came to the Applicant's home at 23 Beavans Court, and was within 100 metres of the property

c) on Tuesday 27th March 2007, came within 100 metres of the Applicant's property and opposite the Applicant's home 23 Beavans Court

d) on [26^th] March 2007 threatened the Applicant by sending a text message which stated that 'first your windows, then your muppet brother's car and next it's a petty bomb so I can hear you scream'

e) on 27^th March 2007, instructed and encouraged two women to intimidate, harass and pester the Applicant by smashing windows at the Applicant's home and attempting to throw at the Applicant's property a milk bottle filled with liquid petrol with tissue paper hanging out of the bottle, at 23 Beavans Court whilst the Applicant was in the property

f) between 12am and 2am on 1^st April 2007 set fire to the Applicant's home, at 23 Beavans Court, with the intention to cause harm to the occupant of the property or instructed and encouraged others to do so

g) on 2nd April 2007 attempted to gain access to the Applicant's property at 23 Beavans Court and therefore coming within 100 metres of the property

h) on 10^th April 2007 made threats to kill the Applicant by saying 'your[sic] fucking dead'"

11. In summary the judge found that two of the allegations were established. As to the remaining six he found, applying the criminal burden and standard of proof, that Miss M had not established them. The two allegations which he found established were allegation B, which for ease of reference I will now repeat, and which reads that:

"b) on Monday 26 March 2007 at 6.45pm, came to the Applicant's home at 23 Beavans Court, and was within 100 metres of the property"

The judge also found, as was stated in the affidavit sworn by Miss M that supported the application, that on that occasion the appellant spoke to her and called her "a fucking slag".

12. The second allegation which the judge found proof was allegation H:

"h) on 10^th April 2007 made threats to kill the Applicant by saying 'you're fucking dead'"

13. After giving judgment and after hearing litigation, the judge imposed a sentence of 28 days' imprisonment upon each breach to run concurrently and to be suspended for a period of 12 months. We have not heard Miss Voelcker on the question of sentence, but speaking for myself, if the committal was found to be established, the sentence that the judge passed was self-evidently one within the exercise of his discretion.
14. I turn then to the judgment itself which, as I have already indicated, is in my view both admirably succinct and clear. An important feature of it is that the judge in paragraph 3 gives himself what I regard, as a non-criminal lawyer, as an immaculate direction. He says this:

"The first thing I do is to remind myself and state in public that I am fully aware that the criminal standard applies, that is, I must be satisfied so that I am sure. Speculation of course is out of the question and it is not sufficient for me to be suspicious."

15. In my judgment that is the correct direction on the law and as I read the judgment, the judge faithfully throughout the judgment correctly applied the criminal standard of proof. The judge then makes some general allegations which are criticised by Mrs Voelcker:

"Before dealing with the individual items I just want to say a few general things. The first impression I have - and I maintain it - I maintained it through my observation - was that [Miss M] is basically honest. I am sure that she is in fear of Mr. J-C. I am quite sure that she is correct in saying, for example, that bricks have damaged her property and she is right in saying that there has been an arson attack. I have no doubt that she genuinely attributes these atrocities - and that is not too strong a word - to [Mr J-C]. There is quite a degree of confusion in her evidence on some points - and I will deal with that - but overall I find her to be an honest witness, though. To the extent that she is confused, of course, she becomes less reliable.

5. As far as [Mr J-C] is concerned I found him less impressive. He was somewhat argumentative. He did not lose his temper. I can take into account, it seems to me, that he has certainly admitted being present on an occasion - which I am not actually dealing with - I also note that there has been a previous injunction against him at the suit of the complainant's sister. I take into account, to the extent it is relevant, the fact that he has a conviction for arson, that is, a different type, when he was much younger and it was, as it were, a prank that got out of hand and not a revenge attack as is alleged here. I thought he was less than frank about exactly how he had treated [Miss M]. I am quite sure that there has been some violence between which accounts for her fear of him. Those are a few general points. Let me deal then with the specifics."

Counsel criticises in particular the ante-penultimate sentence of paragraph 5, which is in these terms:

"I am quite sure that there has been some violence between [Miss M and Mr J-C] which accounts for her fear of him."

I will deal with these allegations in due course.

16. The judge then goes on to reject allegation A on the grounds that Miss M made it clear that she did not see the appellant on this occasion and there was no way she could say he smashed the living room window. He also notes that Miss M accepted she had other enemies; indeed, the judge records hearing oral evidence from a witness Miss Angeline Temple, who agreed in cross-examination that she indeed hated Miss M.
17. The judge then goes on to reject allegation C on the ground that there was not sufficient evidence to support it.
18. In relation to allegation D, the judge accepts that a message was sent but makes comments upon it which again in my view show the care with which he approached the whole case. I will read paragraph 13:

"I fully understand why Miss M attributes that to him. But again I have to sit back and take a detached view and apply the criminal standard. I cannot attribute that to him. It is not attributable to a telephone that is known to be his. There is not sufficient evidence. There may be any amount of suspicion and indeed there is."

19. In relation to allegation E, the judge describes it as very serious and deals with it in the following terms:

"Allegation E, on the 27^th March - this is a very serious allegation - that he instructed and encouraged two women to attempt to throw a bottle. The stronger the allegation, the stronger the evidence, when one is in the civil court. Here there is contusion as to whether or not the bottle was lit or she was afraid that it would be lit. This is something I would have expected to be referred to the police and I think I am right in saying that it was not. Even if there were two women there again I cannot attribute that to this defendant, much as the claimant genuinely believes that that is what happened. I cannot support that allegation. I cannot find it proved."

20. In relation to allegations F and G of the notice, the judge deals with those in paragraphs 15 and 16 of his judgment:

"15. Allegation F refers to the most serious actual allegation of arson. There is not any dispute that it did take place. Of course, the claimant thinks it is the defendant with his previous conviction with she says [sent] the text, but I cannot attribute the text, I cannot attribute the previous allegation about the possible liquid petrol. There just is not enough evidence to come up to the criminal standard. I cannot find that against him.

16. Allegation G I can deal with quite succinctly. On the 2^nd April he attempted to gain access and came within 100 metres. She says, 'I rely upon my brother.' Hearsay evidence is of course admissible. It does not on its own come anywhere near the required standard."

21. The appellant of course makes no complaint about the judge's treatment of the allegations which he finds not to have been established. In relation to the allegations the judge found established, that is allegations B and H, this is what the judge says about them. I will deal first of all with allegation B:

"8. On Monday the 26th March, allegation B, it is said that at 6:45 the defendant came to the applicant' S home and was within a hundred metres. If he came to the home then clearly he was in breach of the injunction even on, it seems to me, his own interpretation of it. The question is can I be sure that that happened?

9. Again there may appear to be some confusion as to whether this happened at 6:45 or 9 o'clock, but [Miss M] said to me that she made the complaint at about 6:45. It took ages for the police to turn up. She heard a smash and got out of bed. It is perhaps a little surprising that she does not go on to allege that he had smashed the window, but that is not an answer to the charge. She said quite specifically that she saw him on a bike in a green jacket. He had been behind a fence. It is pointed out that later on he was found to be wearing a

different coloured jacket.

10. In the dark colours can be confused or it could be that the respondent had changed his jacket in the time between being arrested and the incident or the other way around, the incident and being arrested. What she said was, 'He called me a fucking slag.' I am sure that he did attend, he did use that language, and I have no reason to doubt that she would not recognise his voice or him. Allowing for the difficulties highlighted in the Turnbull case I have still no doubt in my mind that he did treat this injunction in the way that he was rather controlling. If he decided to go there, then go he would. I take into account the fact on his own admission he has been there. I am satisfied he went there on that occasion. The exact time may be wrong. It would not even matter if the date was wrong but there is sufficient concrete evidence that he attended shortly after, within three days or so of the injunction, and called her a 'fucking slag'."

In relation to paragraph H:

"17. Finally an allegation on the 10^th April that he made threats to kill by saying, 'You are fucking dead.' This is an allegation that at the Housing Office they happened to meet each other. I do not think it is suggested it was a deliberate set-up by the defendant. He points out that there is police evidence that he appeared to walk away from her and keep calm. She says that he definitely made an unpleasant remark and a threat to her.

18. I say that I find her the more reliable witness. I am sure that he was not able to contain his feelings. I am quite satisfied that he did make a threat on this occasion. Of course, he did not do so ostentatiously in the presence of other people. That is not the way he goes about breaching this injunction. That in my view is another clear example of him deciding whether he is bound by it or not. So I find that that allegation is also made out. There was a threat made in the Housing Office.

19. The long and the short of it therefore is I find that he did attend on or about Monday 26^th March and find that he did make a threat at the Housing Office. The other allegations raise no more than suspicion."

The judge accordingly found allegations B and H made out on the criminal standard of proof.

22. The first ground of appeal attacks the judge's finding in paragraph 5 of the judgment that Miss M was in fear of the appellant and that there had been "some violence" between the appellant and Miss M which accounted for her fear of him. The matter is put in the following way in the appellant's notice:

"1. The finding of fact by the learned judge that the Respondent was in fear of the Appellant, that there had been some violence between the Appellant and the Respondent that accounts for the Respondent's fear of the Appellant:

1.1. involved serious irregularities in that:

a) the allegations did not form part of the Notice to Show Good Reason;

b) the Appellant had no notice that such findings might be made; and

c) such findings should not have been made within committal proceedings.

These irregularities caused the finding to be unjust and in breach of the Appellant's Article 6 rights as the Appellant did not have the opportunity to put forward any defence to such findings or meet such charges. In addition the Local Authority intend to rely on the findings within the Care Proceedings relating to the Appellant's daughter.

1.2. was wrong in law and fact in that the learned judge made the finding when there was insufficient evidence within the committal proceedings to support such a finding."

23. In my view this ground of appeal is misconceived for a number of reasons. Although Mrs Voelcker submits this afternoon that the finding by the District Judge which gave rise to the power of arrest may only necessary to refer to the threat of violence, the fact remains that the District Judge had made an injunction under Part IV of the Act and had attached a power of arrest to it. That was something which the judge was in my view entitled to bear in mind. The District Judge's order had not been appealed and as I have already said at least once, the judge found the injunction to have been validly made.
24. Secondly, and perhaps for our purposes more obviously, in my view there is the fact that the judge had the advantage inevitably denied to this court of seeing and hearing the witnesses. He was plainly entitled to form an impression of them and of their evidence and was fully entitled, in my judgment, to make the findings which he did in relation to background matters. He had to assess credibility; he did so; he found that Miss M was "basically honest", and he was less impressed with the appellant. We have been provided with a transcript of the appellant's evidence together with that of a witness called on his behalf, one Miss Angeline Temple, to whose evidence I will refer in a moment. The allegation that the appellant had been violent to Miss M was one of the first questions put to the appellant in cross-examination by Mr Brown for Miss M. At page 21 of our bundle there is a passage of cross-examination:

"Q. Mr. Jackson-Brown, before we deal with the specific allegations that we have heard about in the notice to show, the document saying what allegations [Miss M] relies upon, I just want to ask you a few questions relating to your background and your relationship with [Miss M]?

A. Yes.

Q. First of all, do you accept during your relationship between 2005 and 2006 that you were at any stage violent towards [Miss M]?

A. No.

Q. So when she describes you in her statement as being 'unpredictable' and 'violent' you say that she is lying?

A. I am saying she is incorrect.

Q. So you would not go so far as to say she was lying?

A. If it need be, yes.

Q. When you separate in early 2007 is it right that you became involved with Miss M in heated discussions and arguments about the care and custody of [DL]?

A. To a certain extent possibly, yes.

Q. I am going to suggest to you that when [DL] was taken into care on the 23rd March 2007, the same date as the injunction was granted, such was your anger in effect you mounted a campaign of terror against [Miss M] Is that not right?

A. That is certainly not right. That is totally incorrect. I mean, what ----

JUDGE DURROCH: Wait for the question. Otherwise I cannot make a note of it. 'I did not mount a campaign of terror.' Is that right?

MR BROWN: Would it be right to say that you were certainly upset by [DL] Lee being taken into care?

A. My child being taken into care upset me greatly, yes, emotionally.

Q. The person that you blamed for [DL] being taken into care was [Miss M]?

A. Not just [Miss M], no. [Miss M] and Social Services. Miss Vinel.

Q. I am going to re-put the question in the light of what you have said. Is it not right that you were angry with [Miss M] about what had happened to [DL]?

A. If I am angry ----

JUDGE DURROCH: I think you know what anger means?

A. All right, no.

MR. BROWN: You were not angry at all?

A. A little, yes. More upset. More shocked than anything else.

Q. Coming on to the specific allegations and what you say in your statement.

A. Yes."

25. Counsel for the appellant did not object to this line of questioning nor could she properly have done so. Quite apart from the finding by the District Judge that the appellant had used or threatened violence against Miss M, the judge was in my view fully entitled to form a view on credibility and as part of that exercise take a view that he did not believe the appellant's denial to any previous violence. The fact that these allegations may or may not be ventilated again in the care proceedings relevant to parties' daughter seems to me wholly irrelevant. Therefore, it follows that in my judgment the proposition contained in paragraph 1 of the grounds of appeal that the judge's findings in paragraph 4 and 5 of his judgment amount to "serious irregularities" and were made on clearly insufficient evidence simply does not bear examination. Paragraph 1 of the grounds of appeal in my view simply has no substance. The judge as part of his fact finding exercise had to form an impression. He did so on the evidence available to him. We do not have the evidence of Miss M, but we can safely assume, I think, that she said to the judge that she was frightened of the appellant, and indeed in her police statement there is reference to previous violence.
26. In relation to allegation B, Miss Voelcker asserts that the judge's finding was wrong both as a matter of law and in fact. He is criticised, in her words, for failing "to resolve conflicts and deficiencies in the evidence central to the making of the finding". The allegation is that he failed to specify the date on which allegation B took place. He failed to resolve what was said to be the conflict between the police records and the statements of incidents which were within Miss M's affidavit and the notice to show cause. It is also alleged that he failed to deal with what is described as "the appellant's alibi" and the discrepancy in the dates. The failure to identify the date Miss Voelcker particularly attacks as "a serious irregularity" which in the appellant's notice she says breaches his rights under Article 6 as well as failing to comply with the strict requirements for committal hearings. The judge therefore, it is said, had been wrong in law to say that it would not matter if the date was wrong. Paragraph 2 also contains the argument about Beavans Road as opposed to Beavans Court with which I have already dealt, and on which I do not propose to say any more.
27. In my judgment the criticisms contained in paragraph 2 of the grounds of appeal, whether considered individually or collectively do not impugn the propriety of the judge's findings.
28. The question of the alibi is one on which Miss Voelcker places some reliance. However, in relation to paragraph B the allegation in the notice to show cause plainly asserts that the appellant came to the property on 26 March 2007 at 6.45pm and was within 100 metres of the property on that date. There is no reference to any other misbehaviour on that date or indeed any reference in the notice to show cause to the misbehaviour which Miss M related against the appellant in her witness statement to the police on the following day.
29. The alibi spoken to by Miss Temple relates of course to 27 March which is the following day on which incidents C and E were alleged to have taken place, neither of which the judge of course found to be established. The evidence as to the alibi was to be given by Angeline Temple, to whom I have already made reference. We have a transcript of her evidence. I feel bound to say, speaking for myself again as a non-criminal lawyer, that even if her evidence had related to 26 as opposed to 27 March, she cannot by any stretch of the imagination by described as an objective independent witness. She it was who agreed in terms in cross-examination with Mr Brown that she hated Miss M and she had also, as I indicated earlier, been having a sexual relationship with Miss M's ex-partner. Furthermore, her evidence only related to the period after 7.00pm, and in cross-examination she accepted she could not rule out the possibility that the appellant had been round to 23 Beavans Court before 7.00pm on that day. It will be remembered that, according to the notice to show cause, the incident of 26 March was alleged to have begun at about 6.45pm
30. In my judgment, what matters in all this is not the detail but the judge's essential finding applying the criminal standard, that within a few days of the order being made Miss M had indeed seen the appellant within the 100-metre exclusion zone and that on that occasion he had called her "a fucking slag". The judge gave himself the Turnbull direction and was satisfied that even if the date and time might be wrong, and even if Miss M had mistaken the colour of the appellant's jacket, he had nonetheless been present outside her house on one occasion in breach of the injunction and on that occasion he had indeed called her "a fucking slag".
31. In Mr Brown's skeleton argument, which is before us today, on which of course Mrs Voelcker takes issue, there is evidence adduced from his cross-examination of the appellant that the latter may well indeed have cycled his bicycle within the exclusion zone on that particular day. In my judgment therefore, as a matter of common sense and good practice, the judge was perfectly entitled to find that on one of these days shortly after the injunction had been made the appellant had indeed come to Miss M's property and had called her "a fucking slag" and that both actions were in breach of the injunction.
32. The other allegation on which the judge found proved related to 10 April. I have of course already set out the judge's findings in relation to that day. The judge accepts that it was a chance meeting, and in my judgment what he had to resolve was a simple issue of fact. Miss Voelcker points to the police record, which demonstrates that there were indeed other people present in the social security office where the parties met by chance and the judge was satisfied that it was a chance meeting. But the judge was satisfied to the criminal burden of proof on his assessment of the parties that the words had indeed been spoken. In my view that was a finding plainly open to him on the evidence that he had heard. It is as simple as that. It was a simple straightforward finding of fact. Nothing in the police log, in my judgment, contradicts it.
33. There are, in my view in this case, very simple propositions to be decided: was the judge on the evidence available to him and on his assessment of credibility entitled to make the two findings that he did? Of course it can always be argued that a circuit judge in these circumstances should have perhaps dotted the occasional "i" or crossed the additional "t", but in my judgment here what one is looking at is essential justice and essential common sense. The judge went out of his way to be extremely careful in relation to all the incidents, and as I have already indicated found that the more serious incidents were not established on the application of the criminal standard. In my judgment in relation to the two allegations which he found proved, these are matters which are plainly within his power to find. He clearly applied the correct standard of proof to them; he had made appropriate assessments of credibility, and in my judgment those two findings stand. It follows that no substantive criticism can be made of them.
34. Before concluding I simply note that Miss Voelcker placed some reliance on the recent decision of this court in Hammerton v Hammerton. That was of course an entirely different matter in which the circuit judge had heard simultaneously applications for contact and committal, the application for contact being made a litigant in person and the application for committal being made by a woman who was represented. We took the view that in that process the judge had seriously intermingled the two applications and had not done justice to the applicant.
35. In my view, that is 100 miles from this case. Here the judge went out of his way to deal with the matter carefully on the criminal standard in relation to the notice to show cause which was placed before him. As I indicated earlier, the fact that there may an attempt to use the same findings in care proceedings is in my view neither here nor there in relation to the task which the judge set himself.
36. It follows in my view that there is no merit in this appeal and I would dismiss it.

Lord Justice Keene:

37. I agree.

Lord Justice Thomas:

38. I also agree.

Order: Appeal dismissed.