Burke v State of Queensland [2023] QCA 10

SUPREME COURT OF QUEENSLAND CITATION: Burke v State of Queensland [2023] QCA 10 PARTIES: DOMINIC BURKE (appellant) v STATE OF QUEENSLAND (respondent) FILE NO/S: Appeal No 7681 of 2022 DC No 41 of 2019 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Toowoomba – [2022] QDC 128 (Burnett DCJ) DELIVERED ON: 10 February 2023 DELIVERED AT: Brisbane HEARING DATE: 9 November 2022 JUDGES: Morrison and Dalton JJA and Henry J ORDER: Appeal dismissed with costs. CATCHWORDS: TORT – INTERFERENCE WITH THE PERSON – TRESPASS TO THE PERSON – OTHER PARTICULAR CASES – where the police administered a roadside breath test on the appellant – where the appellant was then brought to a watchhouse for further testing – where the appellant refused to provide a further breath specimen – where there was a physical altercation between the appellant and police which was caught on CCTV footage – where the appellant was restrained by police – whether the primary judge erred in finding that there was no trespass to the appellant TORT – NEGLIGENCE – OTHER PARTICULAR CLAIMANTS, DEFENDANTS AND CIRCUMSTANCES – POLICE – where there was a physical altercation between the appellant and police at a watchhouse – where the appellant was restrained by police – whether the primary judge erred in finding that the police were not negligent in restraining the appellant TORT – INTERFERENCE WITH THE PERSON – FALSE IMPRISONMENT – LAWFUL JUSTIFICATION – ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS – where the appellant was detained for seven hours after refusing to provide a breath specimen – where the appellant was then released on police bail – where the appellant was again detained for, among other offences, -- 1 of 10 -- 2 breaches of his bail – where the appellant was later refused bail by both a Magistrate and the Supreme Court – whether the primary judge erred in finding that the appellant had not been falsely imprisoned TORT – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – PARTICULAR CASES – where the appellant was prosecuted for charges of serious assault of a police officer causing bodily harm and serious assault of a police officer – where the charges of serious assault and serious assault causing bodily harm were later withdrawn and charges of obstruction were substituted – where the substituted charges were not prosecuted because they were brought out of time – whether the primary judge erred in finding that there was no malicious prosecution of the appellant TORT – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – whether the primary judge erred in finding that the respondent was not liable to the appellant for misfeasance in public office PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MISCELLANEOUS PROCEDURAL MATTERS – where the appellant submitted that the respondent failed to call a witness he wished to cross-examine – where additional CCTV footage was tendered at trial – whether the trial was conducted unfairly Bail Act 1980 (Qld), s 16 Police Powers and Responsibilities Act 2000 (Qld), s 615 COUNSEL: The appellant appeared on his own behalf D M Favell for the respondent SOLICITORS: The appellant appeared on his own behalf Crown Law for the respondent [1] THE COURT: Mr Burke appeals against orders made in the District Court dismissing his civil claim for trespass to the person, negligence, false imprisonment, malicious prosecution and misfeasance in public office. Factual background [2] The factual matters underpinning the appellant’s claim are that he was intercepted by Toowoomba police while driving on 4 April 2016. It was just before midnight. A roadside breath test was administered and afterwards the appellant was taken to the Toowoomba Police Station where he refused to supply a further sample of his breath; he was amenable to providing a blood sample. Police refused his request for a blood sample and he was arrested, charged with the offence of failing to provide a specimen of breath. Where offenders were suspected of being drunk, but would not provide a sample, police did not grant bail immediately. The practice was to detain them for a minimum period of four hours so that, when released, they would not re-offend. -- 2 of 10 -- 3 [3] The appellant was taken to the watchhouse and a physical altercation occurred there. In the course of the altercation the appellant became unconscious for a short period of time. An ambulance was called and he was taken to the Toowoomba Base Hospital where he was found to have an abnormally high heart rate and blood pressure, as well as dilated pupils. He told the trial judge that he had no long-term consequences and “just a minor headache at the time”. [4] At 6.30 the next morning the appellant was discharged from hospital and returned to Toowoomba watchhouse. He was charged with failure to provide a specimen of breath; serious assault on a police officer causing bodily harm, and serious assault on a police officer. He was given police bail. [5] On 6 May 2016 the appellant was arrested and charged with five offences: two breaches of bail, public nuisance, obstructing police and use of a carriage service to harass (the Toowoomba Police Station). This time police did not give the appellant bail. Nor did the magistrate. He made an application to the Supreme Court and on 21 September 2016 was refused bail again, so that he remained in custody until 28 October 2016, when he pleaded guilty to all eight above-described charges in the Toowoomba Magistrates Court. He was sentenced to 12 months imprisonment cumulative upon an activated suspended sentence. He had already served 176 days in pre-sentence custody. That was declared and he was immediately released upon parole. [6] The appellant appealed against the magistrate’s sentences. On 8 September 2017 Richards DCJ stayed his appeal and remitted the matter back to the Magistrates Court where the magistrate set aside the guilty pleas in respect of all charges (except for the carriage service offence). Judge Richards saw at least some of the CCTV from the watchhouse on the early morning of 5 April 2016. She was of the opinion that what she saw did not substantiate the charges of serious assault on a police officer causing bodily harm and serious assault on a police officer. [7] After that the police determined it was not in the public interest to pursue the breach of bail offences; the charges of serious assault against police, and serious assault against police causing bodily harm were each withdrawn and charges of obstruction were substituted. These substituted charges were then not prosecuted, they were brought out of time. The appellant went to trial in respect of failure to provide a specimen of breath charge; was found guilty, a conviction was recorded but no further punishment was imposed. The appellant was also convicted after a trial in respect of the obstruction offence and the public nuisance offence from 6 May 2016. No further punishment was imposed. On appeal he was acquitted of the obstruction offence from 6 May 2016. Trespass to the person [8] The appellant’s case below as to trespass to the person was based upon the physical interaction which occurred at the watchhouse desk at 12.54 am on 5 April 2016. The events are caught on CCTV which we have watched. The appellant began speaking to the watchhouse sergeant and complaining that he had been refused a blood test. The police officer who had refused the blood test and accompanied him to the watchhouse (SC Winnett) then explains, “That’s nothing to do with the sergeant here, he’s the watchhouse keeper”. The appellant then tells SC Winnett to keep his “friggin’ nose out of it” in an aggressive way. SC Winnett remained standing still with his hands behind his back some distance from the appellant. He commenced -- 3 of 10 -- 4 smiling, or smirking, as the appellant would have it. The appellant delivered another insult or two to SC Winnett and the desk sergeant tried to get his attention. However, the appellant then accused SC Winnett of smirking at him and of being “a fuckin’ dog”. The appellant then moved aggressively towards SC Winnett. At that point, but not before, SC Winnett moved towards the appellant and physically restrained him. Constable Burrell was in the vicinity and attempted to assist. [9] The appellant continued to say abusive things to the police and to physically struggle. It was common ground at the trial before the primary judge that the CCTV shows the appellant raising his elbow and moving it towards SC Winnett’s face. The appellant says he was just trying to break SC Winnett’s restraint; he was not lawfully entitled to do so. The appellant at times denied that his elbow came into contact with SC Winnett’s face and at other times conceded that it might have just “grazed” (t 1-34, t 1-53, AB pp 741, 760) his face. SC Winnett said that the elbow did come into contact with his head and the CCTV footage shows that after the appellant moved his elbow towards SC Winnett’s head, SC Winnett and the appellant fell to the ground. SC Winnett said that he suffered a bruise to his hip from that fall and there were photographs of it tendered below. As to this, the appellant said, “It wasn’t my fault that he fell over” – t 1-24, AB p 731. [10] The appellant continued to deny throughout his trial that he kicked Constable Burrell in the shin, while she was standing at the watchhouse desk. That was the factual basis for the charge of serious assault on police. The appellant is right about this. Constable Burrell admitted in her evidence that the CCTV footage did not show that she had been kicked on the shin at the time and place she had alleged. She said she had a recollection of that having happened, but had never seen the CCTV footage until the trial. The CCTV footage does show that, at a later point, the appellant uses the full length of his leg to swing back behind his body and kick Constable Burrell’s legs. She falls to the floor. [11] SC Winnett said that he was smiling as the appellant abused him prior to the physical violence described above. He said that he was smiling in a “laughing it off” way. However that may be, the CCTV clearly shows that SC Winnett did not move until after the appellant moved towards him. Of that, SC Winnett said that he restrained the appellant because he had a fear that the appellant was going to assault him. When cross-examined the appellant’s evidence was: “… the way you conducted yourself, your aggressive behaviour towards Officer Winnett giving you a chance to comment was such that it was an appropriate response for him to go hands on with you?--- Well, it’s a fifty-fifty thing, I suppose. He can go hands on or he can’t not. I wasn’t going to throw a punch at him, if that’s what you mean.” – t 1-33, AB p 740. [12] The primary judge found that any physical contact between police and the appellant was lawful having regard to s 615 of the Police Powers and Responsibilities Act 2000 (Qld). That section provides that it is lawful for a police officer to use reasonably necessary force to exercise a power under the Act. We have looked at the CCTV evidence. It supports the evidence of the police given before the trial judge. We cannot see any appellable error in relation to the trial judge finding that there was no trespass, assault or battery of the appellant. Nor can we see that there is anything erroneous about the trial judge’s conclusion that neither SC Winnett nor Constable -- 4 of 10 -- 5 Burrell acted in a way which constituted a breach of duty at common law. That is, we cannot see any basis to interfere with the trial judge’s finding that there was no negligence on the part of the respondent. False imprisonment [13] The appellant claims that the trial judge erred in failing to find that he was falsely imprisoned. The trial judge dealt with what he called three distinct periods of imprisonment. As to the first he said: “The first period is the seven hours between when the plaintiff was detained from about 12:45am on 5 April 2016 and released at approximately 7am that morning. Between approximately 12:45am and 7am on 5 May 2016, the plaintiff was in custody in relation to the driving offence of failing to supply a specimen of his breath. Notwithstanding other charges and their disposition, ultimately the plaintiff proceeded to trial in respect of the driving offence and was found guilty. In due course, appeals to both the District Court and the Court of Appeal were unsuccessful. It follows that the plaintiff was lawfully in custody for that period as he was detained for that period in respect of that offence, in respect of which he was ultimately found guilty and convicted. The action fails in respect of the first period.” [14] We can see no error in the trial judge’s reasoning. Additionally to what he did say, for most of this time period the appellant was in hospital. Once the appellant had exhibited signs that he needed medical attention, it was appropriate that he be taken to hospital. He was released on police bail very soon after he was released from hospital. [15] The second period of detention followed the appellant being arrested for the second time, on 6 May 2016. Two of the offences for which the appellant was arrested on this occasion were for breaches of bail. As the primary judge noted, this meant that the appellant was in a show cause position: police were obliged to refuse bail unless the plaintiff showed his detention was not justified – Bail Act 1980 (Qld), s 16(3)(d). [16] The appellant was arrested some time after 3.30 pm on Friday, 6 May 2016 and was brought before a court on Tuesday, 10 May 2016. The appellant ought to have been brought before a magistrate as soon as practicable (ie., Monday, 9 May 2016). Apparently a decision was made to delay his appearance for one day as he was due to appear before the magistrate in relation to other matters on Tuesday, 10 May – t 2-40, AB p 833. The trial judge inferred that it was not practicable to bring the appellant before a court more promptly than this. There was no exploration of this matter in the evidence, so that we are not able to make a finding about whether or not this day’s delay was justified in the circumstances. However, we cannot think that this matters to the case made before the primary judge, because on 10 May 2016 Magistrate Lee refused him bail. So did Jackson J in the Supreme Court on 21 September 2016. In these circumstances, the police keeping the appellant in custody between 6 and 10 May 2016, could not amount to false imprisonment. [17] The third period of detention was from 10 May 2016 until 28 October 2016, when the appellant pled guilty before the Toowoomba magistrate and was released on parole. His detention was justified by the decisions first of Magistrate Lee, and then of Justice -- 5 of 10 -- 6 Jackson. The primary judge did not err in finding that the appellant had failed to demonstrate that he had been falsely imprisoned during this period. Malicious prosecution [18] The appellant contended before the judge below that he was prosecuted for the charges of serious assault of a police officer causing bodily harm, and serious assault of a police officer, in circumstances which amounted to the tort of malicious prosecution. The two charges were based on the factual circumstances which followed SC Winnett’s restraint of the appellant at the desk of the watchhouse sergeant on 5 April 2016. [19] There was an acting sergeant in charge of the Toowoomba Police Station in the early hours of 5 April 2016, Acting Sergeant McDonald. Constable Burrell and SC Winnett spoke to her after the physical interaction with the appellant. After this, Acting Sergeant McDonald contacted officers in the Toowoomba Criminal Investigation Branch and asked them to prepare charges in relation to the assaults. They refused to do so, and told her to do it herself. She called in another crew “off the road to come in to do the charging” – t 2-72, AB p 865. A very junior constable, Cooper, was allocated the job of compiling the complaint arising from the physical interaction at the watchhouse desk. It was the first, or one of the first, formal complaints she had prepared (t 2-41, AB p 834) and in part it was regarded a training exercise for her. Nonetheless, she was assisted in compiling the complaint by a senior constable – t 2-73, AB p 866. Acting Sergeant McDonald was prepared to allow this to occur because she had already talked to SC Winnett and Constable Burrell and from what they had told her, she thought there was “enough evidence for that charge” – t 2-73, AB p 866. After the charge had been prepared, Acting Sergeant McDonald signed off on it. [20] It cannot be thought that Constable Cooper did a good job in preparing the charges. She had no written statements or any other written version of events from SC Winnett and Constable Burrell. She had only “verbal versions” – tt 2-43-45. She prepared a QP9 approximately six months after the conversations she had on that early morning – t 2-46. However, she thought that she prepared the substance of what was contained in the QP9 from a Word document typed before the termination of her shift on 5 April 2016 – t 2-47. She never showed SC Winnett or Constable Burrell what she had typed in the Word document, so that they could confirm it accurately recorded what she was told. She requested statements from them, but this is something that they were to attend to in the fullness of time, not before charges were laid. [21] The CCTV footage was not available to the police constable who prepared the complaint. She did request the footage, but it appears that she never looked at it. The footage was also not available to Acting Sergeant McDonald. Apparently there was a bureaucratic process which involved the officer in charge of the watchhouse being required to authorise access to the footage. Unfortunately, that person was not working the relevant shift on 5 April 2016. The evidence did not reveal when the CCTV footage was obtained. Constable Cooper said she had never seen it. Constable Burrell had never seen it prior to the trial before the primary judge. [22] As discussed, Constable Cooper’s evidence was that the Word document she typed up before the end of her shift on 5 April 2016 formed the basis for what was recorded -- 6 of 10 -- 7 in the QP9. The trial judge set out the description of the facts said to support the charges in the QP9: “Police had then arrested [the plaintiff] and conveyed him to Toowoomba watchhouse where police have started to lodge him and his property as per procedure. [The plaintiff] became verbally abusive towards the arresting officer, SConst Brett Winnett, and turned to face S/C Winnett, and stepped forward towards him in an aggressive manner. S/C Winnett has attempted to restrain [the plaintiff] as he was increasingly becoming aggressive. At this time [the plaintiff] has lashed out and used his right elbow and struck S/C Winnett to the right cheek. Police have attempted to restrain [the plaintiff] further against the charging counter. [The plaintiff] has then struck out at police again, in kicking Constable Stephanie Burrell in the leg. As a result, police and [the plaintiff] have fallen to the ground. [The plaintiff] has continued to resist police whilst on the ground and a struggle ensued. [The plaintiff] continually thrashed his arms and legs about in attempts to attack police. S/C Winnett has suffered a large contusion on his left hip due to [the plaintiff] striking out and causing himself and police to fall to the ground. Police after a short time were able to restrain [the plaintiff] on the floor of the watchhouse in front of the charge counter. Police have then rolled [the plaintiff] onto his side, so as he was no longer facing the ground. [The plaintiff] has then begun to have what appeared to be a seizure. Medical assistance was sought and [the plaintiff] was then transported to the Toowoomba Base Hospital by QAS.” [23] As the primary judge comments, “The written word conveys the impression of a much more significant event than that which was revealed by the CCTV, principally by reference to the injuries sustained” – [63] below. He also explains that, “… as Judge Richards determined upon watching the footage, the charge of serious assault occasioning bodily harm was not made out because the bodily harm which was alleged to be the bruise to the hip caused by the fall to the ground was not a direct consequence of the elbow to the chin, that being the assault complained of” – [64]. Further, it seems to us, having watched the CCTV, that Constable Burrell was not kicked in the leg in the vicinity of the charging counter. However, the CCTV does show the appellant swinging his legs about once he was on the ground, and at one stage swinging his leg so as to hit Constable Burrell’s legs and cause her to fall over. [24] As the primary judge notes, Judge Richards remitted the matter to the Magistrates Court; the appellant’s pleas were set aside, and charges of assault or obstruct a police officer were substituted for the charges of serious assault on a police officer and serious assault on a police officer occasioning bodily harm. The primary judge went on to say: “[68] In my view there was sufficient information to render it appropriate for Constable Cooper to prefer charges, that is to put the criminal law in motion. The recollections of Senior Constable Winnett and Costable Burrell were largely accurate although it is plain from the CCTV that some aspects of their recollection were some minor discrepancies on some detail. That said however, the discrepancies were not of great moment and in my view fall within the tolerance to be expected in the -- 7 of 10 -- 8 context of a witness to an event being called upon later to recall those events. Having seen each of those officers give evidence, I do not find that their evidence concerning events was dishonest or unreliable. As I have observed, any apparent disparity between their evidence and what can be seen on the CCTV falls within reasonable tolerance allowing for individual perception and recollection of events as they unfolded, given their individual participation. Plainly the focus of attention of a witness at the time of their participation in these events differed as each had a differing involvement as events unfolded. I reject the plaintiff’s assertions that the CCTV footage clearly contradicts the officers’ recollections. In some respects the footage is far from definitive, and whilst for instance, a kick cannot be clearly seen in the course of the footage, it is plain that the plaintiff was flailing about as he struggled and fell onto the floor. Whether or not a flailing leg constitutes a kick on the part of the plaintiff or was interpreted as a kick on the part of the recipient is of no moment in my view. The critical issue is that there was contact between the plaintiff’s leg and that of an officer. In the circumstances it was reasonably open for the attacked officer to interpret that contact as being malicious as she did. [69] It follows that I accept the recollection of the officers, particularly Senior Constable Winnett and Constable Burrell, was honestly provided to Constable Cooper. Upon the statement provided by them to Constable Cooper, it was reasonable for Constable Cooper to proceed with the charges she alleged against the plaintiff. Those recollections constituted a reasonable and probable cause in respect of those charges and the prosecutor properly interpreted them as supporting the charges.” [25] Once Constable Cooper had, under supervision, collated material for the charges her work was checked by Acting Sergeant McDonald and sent to prosecutions. [26] A very experienced police prosecutor dealt with the charges which were presented to the magistrate on 28 October 2016. At this point the appellant had a solicitor acting for him. The prosecutor knew that solicitor, and considered him to be “a very capable legal representative” – t 2-57, AB p 850. The appellant’s solicitor wrote to police prosecutions on 9 September 2016 saying: “I have reviewed the matter and taken instructions from the defendant. … Having viewed the footage and considered the statements of the officers, it is clear the defendant’s assaults on the officers, one by elbowing and the other by a kick to the shin, were committed in the course of the struggle with police while they were trying to restrain him.” [27] The police prosecutor said that he therefore assumed there were no factual disputes about the basis of the police case and that he therefore would have looked only -- 8 of 10 -- 9 superficially at the police brief. He said had the appellant been unrepresented, he would have taken steps to appraise himself of the facts of the matter more fully to make sure everything was in order. [28] The primary judge accepted that Constable Cooper, and those who supervised her and checked her work, acted honestly and were selected for the tasks because they happened to be rostered on duty at the relevant time; that is they had no direct interest in, or connection with, the subject matter of the charges. The primary judge thus found that there was reasonable and probable cause for the commencement of the prosecution and that the officers who initiated and maintained it acted honestly and without malice. This was sufficient to dispose of the malicious prosecution claim by the appellant and we cannot see that the primary judge made any error in coming to his conclusion. There was no evidence that any of these people acted other than in good faith and in the ordinary course of their employment. There was no evidence of malice. [29] The appellant advances no rational ground to challenge those findings. His views are shaped by long-term antagonism towards the police and paranoid and persecutory ideas that they conspire against the citizenry in general, and him in particular. Misfeasance in public office [30] Lastly, the primary judge dealt with the claim that the State was liable to the appellant for misfeasance in public office. Having regard to his findings as to the police officers having acted honestly, reasonably and lawfully, there was no factual basis proved to found this cause of action. The appellant did not prove an invalid or unauthorised act, and he did not prove that any act was done in bad faith. Once again, we cannot see that the primary judge erred in coming to this determination. General complaints on appeal [31] The appellant submitted that the primary judge was biased but produced no evidence of this. He said that he was not able to ask questions at the trial. This is not demonstrated by the transcript. There are certainly times when the primary judge insisted that the appellant ask questions about relevant matters, and in a way which was likely to produce admissible evidence, but these are normal judicial interventions, particularly where someone acts for themselves, in order to ensure that the trial proceeds according to law. In fact, a reading of the transcript shows that the primary judge treated the appellant with patience and courtesy. He assisted him at times in framing his questions to witnesses. Several times the primary judge intervened in cross-examination of the appellant to ensure that cross-examination was fair to him. Further, the primary judge took objections to evidence led by counsel for the respondent when the appellant did not, and could not be expected to know that the evidence was objectionable. We might add that the transcript reveals the defence counsel acted very fairly towards the appellant on the trial. [32] The appellant made submissions before us that the judge below had promised that he would be able to cross-examine a particular witness. He did not know the witness’s name, but he had the idea that the Crown would call a witness who would give evidence that he or she had made the decision to downgrade the assault charges, and then to offer no evidence on the (downgraded) obstruct charges. The appellant was not able to refer us to any part of the transcript which supported this idea. However, counsel for the respondent on appeal directed as to t 2-19, AB p 812. The appellant -- 9 of 10 -- 10 asked Constable Burrell, “Why do you think a head prosecutor entirely dropped this case?” The primary judge intervened saying, “No, well, it’s not a matter for her to express her opinion about. I’ve told you yesterday Ms Cooper will be here. She made the prosecutorial decisions. You cross-examine her about those matters.” This intervention of the primary judge was quite justified. However, it apparently engendered in the appellant an expectation that the person responsible for downgrading, and then failing to prosecute, charges against him would be called as a witness by the State of Queensland. In fact, the State of Queensland did not call such a witness. We cannot see that the primary judge can be criticised on this basis. [33] The appellant complained that the respondent failed to call any witnesses to explain why the charges of serious assault against police, and serious assault against police causing bodily harm, were withdrawn. The appellant is right in asserting that no such witness was called at trial. However, there was no obligation on the State of Queensland to call such a witness. [34] The appellant submitted that the primary judge ought to have found SC Winnett and Constable Burrell were untruthful witnesses. There are significant difficulties in attempting to overturn credit findings on appeal. Here, where the appellant simply made assertions and rather abusive submissions about both the witnesses and the primary judge, that task became insurmountable. [35] The appellant submitted that this Court should uphold Judge Richards’ decision, and thus reject the primary judge’s decision. In fact, the primary judge accepted the rationale behind Judge Richards having remitted charges to the magistrate. The matters for determination by the primary judge were different to those which Judge Richards determined. In particular, Judge Richards did not assess the conduct or credit of SC Winnett or Constable Burrell, and did not assess the physical interaction at the watchhouse counter in terms of the civil causes of action which were before the primary judge. [36] After SC Winnett gave evidence, additional CCTV footage was tendered in the court. It was of the same incident, but from a different camera, and thus showed a different view of the physical interaction between the appellant and the police. After it was tendered, it was played to the court and there was some discussion of what it showed between the judge, counsel for the State of Queensland and the appellant. After that the trial judge enquired of the appellant whether he wished to make any applications “arising from this”, or whether he was content for the trial to proceed. The appellant said he had no applications and was content for the trial to proceed. [37] The appellant now says that he did not understand he could have made an application to have SC Winnett recalled so that some aspects of the new footage could be put to him. We have watched all the CCTV footage; we cannot see that the exercise of recalling SC Winnett would have been likely to produce any different evidence before the primary judge, or any different result in the trial. [38] The appeal should be dismissed with costs. -- 10 of 10 --