The Queen v Hamilton[2018] QDCPR 29

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Alan Troy Hamilton, is charged on indictment with one count of producing a dangerous drug in excess of 500 grams, one count of possessing a dangerous drug in excess of 500 grams, and one count of possessing a thing used in connection with producing a dangerous drug.

2. [2]
   During a lawful search of the applicant’s property on 2 March 2017, the applicant made admissions about the production of cannabis plants. Significant amounts of cannabis and a hydroponic set up were seized. Body-cam footage was worn by police during the search and photographs were taken of the cannabis and the hydroponic setup.

3. [3]
   At the hearing, it was uncontroversial that due to the admissions, the hydroponic setup (including heat lamps, power cords and filtration pumps) had been destroyed and the cannabis had been sent off for analysis to be weighed. The respondent was unable to confirm whether the cannabis was still in existence, or had been destroyed. Otherwise, the Crown case relied on the admissions made together with the photographs and body-cam footage taken on the day.

4. [4]
   The applicant applies under s 590AA of the Criminal Code 1899 (Qld) (“the Code”) for a ruling that the admissions made by the applicant during the search were unlawfully obtained and ought to be excluded in the exercise of the Bunning v Cross discretion.^[1]  The applicant also contends that the photographs, body-cam footage and “all property seized” should be excluded under this discretion.^[2]

5. [5]
   In applications about the admissibility of evidence to be used at the applicant’s trial on an indictment, the prosecution bears the onus of proof on factual questions and the standard of proof is on the balance of probabilities.^[3] 

Factual Context

6. [6]
   It was uncontroversial that around 8:20pm on 2 March 2017, police officers executed a search warrant at 294 Trees Road, Tallebudgera. Two males including the applicant were present at the residence.

7. [7]
   At this time, Senior Constable George Liasides (“SC Liasides”) told the two men that a search would be conducted of the property in relation to the presence of dangerous drugs. The applicant was given an original copy of the search warrant together with a document entitled Statement to Occupier, which he was told outlined his rights and obligations during the search.

Applicant’s request to speak to someone 

8. [8]
   SC Liasides then told both men of their right to silence as follows:

If it is necessary to question either of you, you have the right to telephone or speak to a friend or relative, to inform that person of where you are, and arrange or attempt to arrange for a friend or relative to be present during questioning.  You also have the right to telephone and speak to a solicitor of your choice. To arrange or attempt to arrange for a solicitor to be present during questioning.  If it is necessary to question either of you, questioning can be delayed for a reasonable time for that purpose.

9. [9]
   SC Liasides then said to the applicant:

If there’s anybody that you need to phone or speak to let me know and that can be arranged.  Would there be anybody that you wanted to speak to?

10. [10]
    The parties contend a slightly different version of the applicant’s response to this question. The Transcript of Police Record of Interview records his response as, “Yeah well, well [INDISTINCT]”. In his written submissions and at hearing, counsel for the applicant contended that he stated, “yeah well of course”. The respondent submitted that the applicant said, “Yeah, there will be of course”.

11. [11]
    I have personally viewed and listened to the footage. On balance, I accept the applicant’s contention that at the time he said “yeah well of course”. This finding is consistent with SC Liaside’s later acknowledgement to the applicant during the search (referred to at paragraph 16 below) that the applicant had told him earlier that he did wish to speak to or contact someone.

12. [12]
    SC Liasides then asked the other male the same question, to which that male responded, “I don’t have anybody to call”. SC Liasides responded “Okay. If that changes just give me a shout”. Having reviewed the footage, I find that this response from SC Liasides was in reply to the other male’s answer and was not directed at the applicant.

Admissions made after the applicant was told his rights and obligations

13. [13]
    SC Liasides proceeded to ask the men, “Alright prior to us searching the dwelling, is there anything that you guys want to declare prior to us, having a search?” The applicant immediately proceeded to make various admissions to the officers about his connection to the drugs and the set up. In particular he directed the officers to the double shed where he had been producing cannabis oil.^[4]  The applicant referred to the double shed in the backyard “where we’re producing ah cannabis oil…For cancer patients…We’ve never sold a single thing out of that ever”.  In response, SC Liasides explained “What I mean is there’s going to be no guns, no homemade explosives no nothing sharp, no needles, nothing else is going to hurt myself or any of the other officers”.  The applicant replied “Absolutely nothing”.   

14. [14]
    The officers commenced searching the entire premises and taking photographs.

15. [15]
    Shortly afterwards SC Liasides said to the applicant, “I’ve had a look at the shed. There’s some electrical cables and some bits and pieces. I’m going to reasonably suspect that there’s a hydroponic setup in there. Yes?” The applicant replied, “Yep”. The officers proceeded to find cannabis plants, the hydroponic setup, and a small clip seal bag. Photographs continued to be taken.

The alleged inducement

16. [16]
    During a pause in the search, SC Liasides said to the applicant, “Mate um I know prior to us conducting a search you indicated that you did want to contact…someone and speak to them”. The applicant replied, “At the moment, the missus if I can get a hold of her…But am I going somewhere tonight?” SC Liasides responded, “Look mate, at this stage, no, there’s no need to take you anywhere”. SC Liasides then told the applicant he had “been good” and that “the more than likely” course of action he would take was to release the applicant on a notice to appear. The applicant said that because he would not be going anywhere, he would not worry about contacting his mother or partner. SC Liasides told the applicant that he would not need to come back to the station, unless “I find a dead body or something like that”. This exchange is said by the applicant to amount to an inducement to the applicant to make admissions.

The post “alleged inducement” admissions

17. [17]
    The applicant proceeded to make further admissions about his motive behind growing cannabis (allegedly for friends suffering from cancer). The applicant and SC Liasides then went for a walk where SC Liasides posed various questions to the applicant regarding the growing and production of the cannabis. The applicant gave detailed responses.

Overview of the issues for determination – admissions

18. [18]
    Against this background, the applicant submits that all admissions made by the applicant during the police search, and all evidence seized or obtained by the police should be excluded.

19. [19]
    The applicant contends that, should I find the admissions were obtained unlawfully, the evidence obtained ought to be excluded in the exercise of my discretion to exclude unlawfully procured evidence on grounds of unfairness and public policy (the Bunning v Cross discretion).  

20. [20]
    The applicant also seeks that the Court exercise its discretion to exclude all of the evidence either seized or obtained by police during the search namely the photographs of the scene and hydroponic setup, the body-camera footage, and potentially the cannabis also on the basis of the Bunning v Cross discretion. 

21. [21]
    In order to address these issues it is convenient to assess the admissibility of the admissions in two stages: before and after SC Liaside’s alleged inducement.^[5] I will then address the Bunning v Cross discretion.  

Analysis – before the alleged inducement

Obligations under the Police Powers and Responsibilities Act 2000

22. [22]
    The applicant’s submission that the admissions made during the execution of the search warrant were unlawfully obtained, is premised on the contention that the officers failed to fulfil their obligations as required under the Police Powers and Responsibilities Act 2000 (Qld) (“the Act”).  Relevantly, s 418 of the Act states:

418Right to communicate with friend, relative or lawyer

1. (1)
   Before a police officer starts to question a relevant person for an indictable offence, the police officer must inform the person he or she may –

1. (a)
   telephone or speak to a friend or relative to inform the person of his or her whereabouts and ask the person to be present during questioning; and

1. (b)
   telephone or speak to a lawyer of the person’s choice and arrange, or attempt to arrange, for the lawyer to be present during the questioning.

1. (2)
   The police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1).

23. [23]
    Section 7 of the Act also relevantly provides:

7Compliance with Act by police officers

1. (1)
   It is Parliament’s intention that police officers should comply with this Act in exercising powers and performing responsibilities under it.
2. (2)
   For ensuring compliance with Parliament’s intention, a police officer who contravenes this Act may be dealt with as provided by law. 

24. [24]
    The first limb of s 418 of the Act therefore requires that prior to questioning for an indictable offence, an officer must inform the relevant person of their right to speak to a friend, relative or lawyer. It is not in dispute that this limb was satisfied by SC Liasides at the outset of the search.^[6]  

25. [25]
    The applicant contends that the second limb of s 418 has not been satisfied due to the failure of the police to follow up on the applicant’s response that “yeah well of course” he wanted to speak to someone. The applicant submits that it follows that the admissions obtained by the answers to the subsequent questions were unlawfully obtained.

26. [26]
    In support of this submission, the applicant referred to the comments of Fryberg J in R v Ajax [2010] QSC 338 that:

On the face of the evidence before me, the police prevented the accused from contacting a solicitor.  They did so by not affording him the opportunity to do so and by confiscating the mobile phone of the accused’s daughter.  The failure to afford him the opportunity would not of itself have constituted unlawful conduct had there been no questioning of the accused.^[7]

27. [27]
    As discussed above, SC Liasides quite properly told the applicant of his rights and then specifically asked him whether there was anybody that he wanted to speak to. The applicant said words to the effect of “yeah well of course”. In my view, the applicant’s positive response required SC Liasides to follow up the applicant immediately and certainly prior to questioning him any further. He did not do this. Instead SC Liasides continued to probe the applicant for further information which I am satisfied constituted questioning.

28. [28]
    In my view, given the applicant’s response as I have found it to have been made, SC Liasides was required to delay the questioning for a reasonable time to allow the applicant to speak to the person of his choosing. I find that SC Liasides has failed to meet this requirement.

29. [29]
    It follows and I find that the admissions made by the applicant up to the alleged inducement were unlawfully obtained (“the unlawful admissions”).

Analysis – after the alleged inducement

30. [30]
    The applicant contends that admissions made following the applicant being notified that he was not likely to be going anywhere, and that he would likely be released on a notice to appear, were the result of an inducement or promise.

31. [31]
    The applicant submits that all subsequent admissions by the applicant were a result of these inducements by SC Liasides, in breach of s 416 of the Act and s 10 of the Criminal Law Amendment Act 1894 (Qld) (‘CLAA’).   The applicant contends that it follows that the admissions were not made voluntarily and should be excluded pursuant to the Bunning v Cross discretion. 

32. [32]
    Section 416 of the Act relevantly provides:

1. 416.
   Questioning generally

A police officer who is questioning a relevant person must not obtain a confession by threat or promise. 

Note –

See also the Criminal Law Amendment Act 1894, section 10 (Confessions).

33. [33]
    Section 10 of the CLAA provides:

10Confessions

No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.  

34. [34]
    As Irwin DCJ observed in R v Small (No. 2) [2009] QDC 320, s 416 of the Act neither adds to nor detracts from s 10 of the CLAA. 

Voluntariness

35. [35]
    It is a well-established and fundamental rule of law that admissions by an accused are inadmissible unless it can be shown they were made voluntarily. As the High Court of Australia has espoused, where the issue of voluntariness is raised, the onus is on the prosecution to prove, on the balance of probabilities, that the requirement of voluntariness has been satisfied.^[8]

36. [36]
    In R v Swaffield (1998) 192 CLR 159 at [121] the High Court later stated the requirement of voluntariness by explaining that “the essential question is whether the confession has been made in the exercise of a free choice on the part of the accused”.  Dixon J foreshadowed the statutory authority under s 10 of the CLAA in McDermott v The King (1948) 76 CLR 501, stating that if a defendant’s confession is the “result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary”.^[9]  Further to this, Dixon J cemented that as “a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement has been made”. 

Did the officers obtain a confession via a promise or inducement under s 416 of the Act?

37. [37]
    In R v Plotzki^[10] the Queensland Court of Appeal outlined the following approach to the question of whether a threat or promise induced a confession:

When the words of a person in authority may be considered as holding out an inducement or are such as could reasonably be considered to do so, the Court will not attempt, by fine analysis or the resolution of nice questions of construction, to minimise the effect of such words.

38. [38]
    The courts have struggled to provide a definitive definition of what amounts to a promise capable of amounting to an inducement. Generally, this decision is made on a case by case basis with respect to the particular facts. In R v Zaveckas [1970] 1 All ER 413, a clear inducement was made when a police officer promised that bail would be granted if the accused person made a statement admitting guilt.  Similarly, a statement made by a police officer that it would be in some way beneficial for the accused to tell the truth was found to be an inducement capable of rendering a subsequent confession involuntary and thus inadmissible.^[11] 

39. [39]
    In R v Richards [1967] 1 All ER 829, a statement by a police officer that “I think it would be better if you made a statement and told me exactly what happened” is capable of amounting to an inducement. 

40. [40]
    In R v Anderson [2010] QDC 3, the applicant successfully argued that an offer by police to arrange a meeting between the defendant and his pregnant fiancée was an inducement to the applicant to co-operate with investigating police.  The defendant was transported from a prison, to a local police station, to meet with his fiancée.  Following this, the defendant made various admissions. 

41. [41]
    Each of the cases discussed above, in my view, involved a clear statement by a police officer offering a deal or encouraging the accused to make some admissions. The circumstances of the present case are in my view easily distinguishable.

42. [42]
    In the case of Anderson, Andrews SC DCJ provided the following useful guidance to determining the issue:

The logical first step is to consider whether there were threats or promises made and then to consider the separate question of whether the prosecution established that any threats or promises found to have been made did not induce the recorded confessions.^[12]

43. [43]
    In the present case, the applicant asked if he would likely be going anywhere, presumably referring to the police station or some form of incarceration, to which SC Liasides offered a genuine and truthful reply. SC Liasides submitted at the hearing that this statement “wasn’t intentional at all to induce him to cooperate…Because he asked me if he was going anywhere, and I answered as truthfully as I could at that stage”.^[13]  I accept that in the circumstances, the usual course would have been to release the applicant and issue him with a notice to appear.  

44. [44]
    I also accept that the applicant exhibited compliant behaviour but reject the applicant’s submission that this was only after this conversation. Right from the outset the applicant was co-operative and compliant with the police officers.

45. [45]
    In my view, the statement by SC Liasides was directly responsive to a question he had been asked by the applicant. He was simply providing information to the applicant. In the circumstances, I find that the statement of SC Liasides did not amount to an inducement to the applicant. It follows that the applicant’s subsequent admissions were made voluntarily.

46. [46]
    At this point the applicant had been formally offered the opportunity to contact someone for the second time. He declined, and as such any admissions made by the applicant from this point on were lawfully obtained.

Discretion to exclude

47. [47]
    The applicant submitted that I ought to exclude all of the evidence relied upon by the Crown as its admission would be unfair because it is based on unlawful admissions. For the reason discussed above, I have determined that not all of the admissions were unlawfully obtained.

48. [48]
    As I have found that the admissions made prior to the alleged inducement were unlawful, it falls to be determined whether those admission ought to be excluded under the Bunning v Cross discretion. 

49. [49]
    In Bunning v Cross [1978] 141 CLR 54, the High Court stated that:

Evidence of relevant facts or things ascertained or produced by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring conviction to those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.^[14] [Emphasis added]

50. [50]
    The relevant principles are not controversial. What is required is the weighing of competing public interests.^[15] One is “the desirable goal of bringing to conviction the wrongdoer.”^[16] Another is “the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law.”^[17]

51. [51]
    Applegarth J identified and summarised the relevant principles in R v Versac.^[18] The discretion “is necessary to protect the processes of the courts of law in administering the criminal justice system.”^[19] This judicial integrity principle holds that courts should not admit the tainted fruits of unlawful conduct, lest the administration of justice be brought into disrepute.^[20]

52. [52]
    The discretion also serves the policy of deterring unlawful conduct by those entrusted with powers of law enforcement.^[21]

53. [53]
    In Duke v R (1989) 180 CLR 508, Brennan J explained the rationale behind considerations of unfairness (at 508) as follows:

The unfairness against which an exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted.  If, by reason of the manner of the investigation, it is unfair to admit evidence of the confession, whether because the reliability of the confession has been made suspect or for any other reason, that evidence should be excluded.  Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification – to name but some improprieties – may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a voluntary confession procured in the course of the investigation must be excluded.  The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case.  [Emphasis added]^[22]

54. [54]
    In R v Munck [2010] QSC 416, Phillipides J summarised the relevant considerations from Bunning v Cross to include:

1. (a)
   whether the lawfulness was a deliberate or reckless disregard of the law,

2. (b)
   where the illegality was a result of a mistake,

3. (c)
   the cogency of the contested evidence,

4. (d)
   how easy would it have been to comply with the law,

5. (e)
   the nature of the offence,

6. (f)
   the relevant legislation.^[23] 

55. [55]
    The weight given to competing factors depends on the circumstances.^[24]

56. [56]
    The Bunning v Cross discretion places the onus on the accused to prove misconduct and justify the exclusion.  Once this is done, the onus is on the party seeking admission to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained. 

Discussion

The admissions

57. [57]
    The applicant submits that there existed a deliberate disregard of the law on the part of SC Liasides, and the other officers who did nothing to provide the applicant the opportunity to contact someone. It is uncontroversial that SC Liasides began questioning the applicant almost immediately after receiving a positive response from him that he wished to contact someone prior to any police questioning.

58. [58]
    In R v Williamson [2009] QSC 434, Byrne SJA had regard to the discretionary principles above, and categorised whether the officer’s failure to comply with a legal requirement was a “lapse of insight by an officer”; whether it was brought about when “exuberance overborne judgment”; or whether it was “…a calculated disregard of the law”.^[25] 

59. [59]
    In the present circumstances, I do not consider that the failure to follow up the applicant and ask him who he wanted to call was due to a flagrant disregard for the law by the police involved. Complying with the statutory requirement would have been straightforward. In my view it was more of a lapse of insight or even an oversight by the officers, occurring as a result of being overly complacent due to the environment in which the search was conducted.

60. [60]
    Having viewed the footage, the scene was a relatively casual one in which all parties (including the applicant) acted as though the applicant had been ‘caught red handed’. The admissions need to be seen in that context. In my view it was obvious that the applicant’s concern was to contact someone if he was going to be taken to the police station. This is consistent with his attitude later during the search when he was followed up and he did not want to call anyone (once he knew he was not going anywhere).

61. [61]
    The offences in this case I accept are at the lower end of the scale of seriousness for these type of offences. They involve the production and possession of a Schedule 2 drug, namely, cannabis, without any commercial element. The cogency of the admissions prior to the alleged inducement are on one view minimal. On the other hand the unlawful admissions resulted in full and frank admissions which contributed in some part to a decision to destroy some of the evidence. They set the ball rolling so to speak. The remaining evidence (being photographs, body-cam footage, potentially the seized cannabis, and admissions made following the alleged inducement) is crucial to the Crown’s case. The police had a search warrant for the entire property, and would have located all of the physical evidence without the assistance of the applicant.

62. [62]
    The production and possession of dangerous drugs is a prevalent issue within Queensland society, and ultimately the community at large must be protected from those who commit such offences, and assist in the continuation of the illegal drug market. However, providing accused individuals’ the opportunity to confer with a legal representative or any other person prior to questioning, and confessing, is a fundamental limitation on police powers. This limitation has been established by Parliament to protect the wider, vulnerable members of the community from abuse of arbitrary exercises of power.

63. [63]
    The failure by police to adhere to statutory requirements limiting their powers should never be encouraged. But, in my view, the present circumstances involve a breach at the lower end of the scale. It was an oversight perhaps due to the casual and non-hostile environment in which the search took place. There is no evidence that the applicant was overborne or unduly pressured to answer questions. At no stage did he show a reluctance to speak to the police or decline to answer questions. He was at all times very cooperative with the police.^[26]

64. [64]
    In my view the earlier unlawful admissions cannot be said to have infected the later lawful admissions. The breach was remedied within a reasonable time when SC Liasides later asked the applicant whether he wished to speak to or contact someone. Consistent with his willingness to cooperate, the applicant continued to make frank and detailed admissions, in circumstances I have found to be lawful. Relevantly, when he was offered the opportunity to speak to someone, he expressly declined.

Conclusion regarding the admissions

65. [65]
    On balance and in the particular circumstances of this case, the factors favouring the admission of the unlawful admissions outweigh the factors supporting their exclusion.

66. [66]
    For completeness, in the event that I am wrong about the alleged inducement not being unlawful, I would have refused the application to exclude the admissions made after such inducement for reasons similar to those articulated above.

The admission of the other evidence

67. [67]
    The applicant submits that as a result of all of the admissions made, a decision was made by SC Liasides, in consultation with Senior Constable Murdoch, for the police to destroy the evidence of the cannabis production located during the search. The hydroponic setup was disassembled, and pots, pipes and the hydroponic setup equipment were destroyed.

68. [68]
    Upon scenes of crime arriving at the residence, SC Liasides explained to the officer,

We’ve got a little hydro setup just in the shed over here, we’ve got some plants around the side, I don’t know how far into it you want to go, I’ve interviewed old mate on camera, he’s made full admissions to the hydro setup, doing everything himself, I don’t really foresee the need for fingerprints but if you’d like to fingerprint anything, just the lights…

69. [69]
    There is no evidence as to any fingerprinting conducted at the scene.

70. [70]
    The applicant further argues that by failing to conduct any testing on the equipment, the applicant is now at a significant disadvantage to defend himself against the charges, which is inherently unfair. It was submitted that testing may have provided further evidence proving or excluding the possible involvement of another person/s in the production, or potentially exculpate the involvement of the applicant entirely.

71. [71]
    I do not consider these are strong enough reasons to exclude this evidence. The photographs and body-cam footage serve as circumstantial evidence in the Crown’s case. The matters referred to by the applicant as reasons to exclude the evidence are issues of weight, not admissibility. The applicant is free to raise these concerns to the jury.

72. [72]
    The photographs and body-cam footage also serve as circumstantial evidence that corroborates what I have found to be the lawful admissions made by the applicant to police. This evidence also corroborates unlawful I have determined ought not be excluded. It will be a question for the jury to infer guilt from this evidence, should the matter proceed to trial.

73. [73]
    The applicant’s submission that forensic testing of the set up may have established evidence of a co-accused is in my view an irrelevant consideration. At a few stages during the police search, the applicant refers to there being a ‘we’ involved in the commission of the alleged drug offences. It remained unclear at hearing whether this ‘we’ referred to the other male occupant present at the search. I do not know if anyone else was charged as a result of the search. The applicant contends that this is potentially evidence of the involvement of another person. Criminal charges commonly proceed without establishing the identity of a co-offender. Establishing the identity of a co-offender does not lessen the culpability of an accused, and is not in my view a relevant consideration for the admissibility of evidence in this case.

74. [74]
    The cogency of this remaining evidence is, in conjunction with the evidence of the admissions, very high.

75. [75]
    I do not consider there is any unfairness to the applicant in admitting this evidence. In my view there is no sound public policy reason to exclude this evidence. I cannot see that excluding this evidence is protecting the community from unlawful and unfair treatment by police.

76. [76]
    Consequently, I find that the remaining evidence should not be excluded.

Order

77. [77]
    It follows that the application is be dismissed.