Her Majesty the Queen v. Westergard [Indexed as: R. v. Westergard]
70 O.R. (3d) 382
[2004] O.J. No. 1500
Docket No. C33232
Court of Appeal for Ontario
Goudge, MacPherson and Cronk JJ.A.
April 15, 2004
*Application for leave to appeal to the Supreme Court of Canada was dismissed February 17, 2005 (Bastarache, LeBel and Deschamps JJ.).
Criminal law -- Murder -- First degree murder -- Elements of offence -- Sexual assault during commission of murder -- Section 231(5) of Criminal Code applying even if sexual assault took place after murder if sexual assault and murder formed continuous transaction -- Offences need not occur simultaneously -- Criminal Code, R.S.C. 1985, c. C-46, s. 231(5). [page383]
The accused was charged with first degree murder pursuant to s. 231(5) of the Criminal Code. The victim had been sexually assaulted, but it was impossible to say whether the sexual assault had preceded or followed her death. The trial judge charged the jury in accordance with the "single transaction" principle. He stated that if the jury was satisfied that the accused was guilty of murder, they then had to consider if he caused the murder "while committing or attempting to commit a sexual assault". He continued that the sexual assault and the murder did not have to occur simultaneously; it was sufficient if the murder and the sexual assault were connected and formed part of the same transaction. The accused was convicted. He appealed, arguing that the trial judge erred by failing to instruct the jury that s. 231(5) of the Code did not apply if the sexual assault took place after the murder.
Held, the appeal should be dismissed.
The victim was killed in her bedroom. There was semen, without sperm (the accused had earlier had a vasectomy), on the box spring in the bedroom. The semen was mixed with the victim's blood. The victim was found nude. She had an anal split. She was viciously beaten and strangled. Without evidence to contradict these facts (the accused did not testify), the conclusion that the sexual assault and the murder were part of a single transaction was inescapable. The accused told the police he was not involved in the crime and did not testify. There was no evidentiary foundation for the defence assertion that the murder preceded, but was unrelated to, the sexual assault. There was no air of reality to the theory that after being murdered, the victim's body was sexually violated in a separate transaction unrelated to her murder. An overly refined or technical approach to s. 231(5) of the Code should be avoided. What is important is not the order of commission of the murder and the sexual assault but the linkage between the two crimes. When the required linkage is found to exist, it is the two crimes committed together, regardless of the order, which represent the ultimate exploitation of the position of power over a victim and arguably mandate a conviction for first degree murder. The trial judge did not err by failing to instruct the jury that s. 231(5) of the Code did not apply if the sexual assault took place after the murder.
APPEAL from a conviction for first degree murder.
R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, 45 D.L.R. (4th) 546, 80 N.R. 272, 38 C.C.C. (3d) 97, 60 C.R. (3d) 346; R. v. Richer (1993), 1993 14676 (AB CA), 82 C.C.C. (3d) 385, 141 A.R. 116 (C.A.), apld R. v. Quesnel (1991), 1991 11938 (MB CA), 71 Man. R. (2d) 1, 4 C.R. (4th) 118 (C.A.), not folld Other cases referred to R. v. Muchikekwanape (2002), 166 Man. R. (2d) 81, [2002] M.J. No. 253, 278 W.A.C. 81, [2002] 9 W.W.R. 293, 166 C.C.C. (3d) 144, 2002 MBCA 78 (C.A.); R. v. Stevens (1984), 1984 3481 (ON CA), 2 O.A.C. 239, 11 C.C.C. (3d) 518 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 231(5)
Michal Fairburn, for respondent. Christopher D. Hicks and Catriona Verner, for appellant. [page384]
MACPHERSON J.A.: --
A. Introduction
[1] Sonia Run was viciously beaten and strangled to death in her home. The appellant, Ernest Westergard, was convicted of first degree murder at the conclusion of a long trial presided over by Justice Ronald G. Thomas.
[2] The appellant appeals on several grounds relating to the availability of a verdict of first degree murder, and the trial judge's instructions to the jury concerning the appellant's statements to the police, after-the-fact conduct evidence and identification evidence.
[3] At the conclusion of the hearing, the panel indicated that the appeal was dismissed, with reasons to follow. These are the reasons.
B. Facts
[4] Sonia Run was killed in her home on September 26, 1994. Her naked and badly beaten body was found on the upstairs bathroom floor. Jonathan Newman, a qualified expert in blood stain analysis, testified that Ms. Run had been killed in the master bedroom and then moved to the bathroom, where she had been washed. The box spring in the master bedroom was exposed during the assault. Given the transference of blood from the box spring to the mattress, it was likely that the mattress was placed back on the box spring immediately after the murder, while the blood was still wet.
[5] Dr. John Deck was qualified as an expert in the area of forensic pathology. He testified that Ms. Run suffered significant trauma to her head, caused by blows of "considerable force". There were also extensive injuries to the front of her neck. There was a "branching kind of split" in her anus. She suffered numerous defensive wounds, including to her hands and forearms. The cause of death was strangulation associated with blunt force injury to the head.
[6] The appellant was employed at the Benchmark Carpet store in Mississauga, which was about a five-minute drive from the Run home. He had been at the Run home several times in the two months before the murder, taking measurements for carpets and attending when they were installed.
[7] On September 26, 1994, the appellant left Benchmark Carpet at about 9:30 a.m. Shortly after 11:00 a.m., he called a La Cache store in Oakville where he had a morning appointment and reported that he was lost. After receiving directions, he arrived at the La Cache store between 11:15 and 11:20 a.m. [page385]
[8] Upon leaving the La Cache store, the appellant went to the Oakville Mall where he paid a bill and bought a tie between 11:30 a.m. and 12:30 p.m.
[9] The Crown's theory was that the appellant drove to the Run home and sexually assaulted and killed Ms. Run between 9:45 and 11:00 a.m. The two key components of the Crown case were forensic evidence linking the appellant to the crime scene and evidence relating to his use, within hours of the murder, of make-up to hide facial injuries he had received.
[10] The forensic evidence against the appellant was formidable. In particular, the appellant's DNA profile was found under the fingernails on both of the victim's hands. Pamela Newall, the head of the Biology Section of the Centre for Forensic Sciences in Toronto, testified about the relationship between the appellant's DNA sample (which he had provided to the police) and the DNA found under the victim's fingernails:
Q. Now dealing then with your conclusions with respect to [the] item that was submitted to the Centre as item C39, the right hand fingernail scrapings from the body of Sonia Run, what are your conclusions?
A. The dominant DNA profile from the right hand fingernail scrapings, C39, from Sonia Run matches the DNA profile from Ernest Westergard at 17 polymorphic PCR loci and comes from a male.
Q. And are you able to tell us what is the frequency of occurrence of that dominant matching profile which matches Ernest Westergard?
A. Based upon data from the Causcasian population of Ontario, the frequency with which this DNA PCR 17 locus profile of Mr. Westergard would be expected to occur is less than one in the population of the world.
Q. And what is the approximate population of the world?
A. The approximate population of the world is six billion.
[11] Other forensic evidence linking the appellant to the crime scene, and Ms. Newall's expert testimony concerning it, were a hair found under the mattress ("one in 60,000"), a blood stain on the water faucet in the bathroom ("one in 14 million"), and a semen stain with a blood component found on the box spring in the bedroom ("a partial match at three loci to Ernest Westergard").
[12] The Crown also led evidence that when the appellant attended the Oakville Mall on September 26 (which he admitted), he went to the Caryl Baker Visage store and purchased make-up supplies and had store staff apply make-up to his face. In addition, numerous witnesses testified that in the days following September 26, the appellant had fairly obvious facial injuries and wore considerable make-up to hide them. [page386]
[13] The Crown called 80 witnesses during the six-week trial. The appellant did not testify; indeed the defence called no evidence. The appellant made two statements to the police in the two weeks after the murder. These statements were introduced at the request of the Crown. The Crown relied on them as potential evidence of a concocted alibi or consciousness of guilt. The appellant relied on them as evidence of a partial alibi and to raise a doubt based on his limited opportunity to commit the crime.
[14] The jury deliberated for nine hours. They asked one question about the difference between first and second degree murder. They returned a verdict of first degree murder.
C. Issues
[15] The issues on appeal are:
(1) Did the trial judge err by failing to instruct the jury that s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46 did not apply if the sexual assault took place after the murder?
(2) Did the trial judge err in his treatment of the appellant's statements to the police?
(3) Did the trial judge err in failing to give an appropriate limiting instruction in relation to the after-the-fact conduct evidence?
(4) Did the trial judge err in his instruction in relation to the identification evidence of the staff at the Caryl Baker Visage store?
D. Analysis
(1) First degree murder
[16] The appellant was charged with first degree murder pursuant to s. 231(5) of the Criminal Code:
231(5) . . . murder is first degree murder in respect of a person when the death is caused by that person while committing . . . an offence under one of the following sections:
(b) section 271 (sexual assault)[.]
[17] The trial judge charged the jury in accordance with the "single transaction" principle. He stated that if the jury was satisfied that the appellant was guilty of murder, they then had to consider if he caused the murder "while committing or attempting to commit a sexual assault". He continued: [page387]
While committing or attempting to commit, does not require that the sexual assault and the murder occur simultaneously. It is sufficient if the murder and the sexual assault are connected and form part of the same transaction. In other words, it is sufficient if the act causing the death and the acts constituting the assault are all part of one continuous sequence of events forming a single transaction.
[18] Dr. John Deck was the only witness who testified about the temporal relationship between the sexual assault on, and the time of death of, Ms. Run:
Q. Sir, is this injury that you have described to Mrs. Run's anus, is that consistent with an attempted act of anal intercourse or an actual act of anal intercourse?
A. Yes.
Q. And you say that could have happened before death or after death?
A. Yes.
Q. And are you able to say . . . .
A. I can't make the distinction.
Q. And are you able to say, either before or after death, how recent to death this injury was caused?
A. Well it's fresh. I mean, it's not any significant time before death. It's fresh like all the other injuries so I can say it didn't occur some time before, but as I say, I can't say whether it was around the time of death but before death had actually occurred, or after death. If tissues are torn after death, there may be a little bit of blood appears at the site. Blood vessels throughout the body still have blood in them and if they're torn, there may be some blood present. Now there's minimal blood here, externally, and none internally. So the possibility that this occurred after the heart had stopped beating is something I cannot exclude. It may well have done -- been at that time.
[19] The appellant contends that the trial judge erred in two respects in his charge to the jury on first degree murder: (1) he did not instruct the jury that if the sexual assault occurred post-mortem, the appellant could not be found guilty of first degree murder; and (2) he failed to relate the evidence to the law by not telling the jury that the testimony of Dr. Deck could raise a doubt about first degree murder because it left open the question of the sequence of the sexual assault and the murder.
[20] The "single transaction" principle for the interpretation of s. 231(5) of the Code was first enunciated by Martin J.A. in R. v. Stevens (1984), 1984 3481 (ON CA), 11 C.C.C. (3d) 518, 2 O.A.C. 239 (C.A.), at p. 541 C.C.C.:
Thus, it appears clear that where death is caused after the underlying offence is complete and the act causing death is committed for the purpose of [page388] facilitating the flight of the offender, the murder is not ss. 213 and 214(5) (b) [now s. 231(1) and (5)] first degree murder.
I do not wish, however, to be taken as holding that where the act causing death and the acts constituting the rape, attempted rape, indecent assault or an attempt to commit indecent assault, as the case may be, all form part of one continuous sequence of events forming a single transaction, that death would not be caused during the commission of the offence, even though the underlying offence in s. 213 in a sense could be said to be then complete.
(Emphasis added)
[21] Justice Martin's interpretation of s. 231(5) of the Code was approved by the Supreme Court of Canada in R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, 38 C.C.C. (3d) 97. In that case, the accused indecently assaulted a seven-year-old boy. He then got dressed. At that point the boy told the accused that he intended to tell his mother about the incident. The accused said that he would kill him if he told his mother. The accused made the boy lie on his back. He waited for about two minutes with his hand on the boy's chest. He then strangled and beat the boy to death.
[22] The accused admitted these facts at his trial and was convicted of first degree murder. The Quebec Court of Appeal reversed. However, the Supreme Court of Canada allowed the appeal and restored the conviction for first degree murder. Justice Wilson specifically adopted the passage from Stevens set out above and continued, at p. 633 S.C.R., p. 108 C.C.C.:
The offences listed in s. 214(5) are all offences involving the unlawful domination of people by other people. Thus an organizing principle for s. 214(5) can be found. This principle is that where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime. Parliament has chosen to treat these murders as murders in the first degree.
Refining then on the concept of the "single transaction" referred to by Martin J.A. in Stevens, supra, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a "single transaction". This approach, in my view, best gives effect to the philosophy underlying s. 214(5).
[23] Stevens and Paré are cases where the aggravating offence listed in s. 231(5) was committed first and the murder followed. In the present case, the appellant contends that Dr. Deck's evidence gives rise to the possibility of a reverse sequence -- Ms. Run was murdered and then the perpetrator engaged in sexual activity with her dead body. This subsequent conduct would not amount to the aggravating offence of sexual assault because a dead body cannot be assaulted. [page389]
[24] In support of this submission, the appellant relies on R. v. Quesnel (1991), 1991 11938 (MB CA), 4 C.R. (4th) 118, 71 Man. R. (2d) 1 (C.A.). In Quesnel, the accused gave a statement to the police in which he admitted breaking into a woman's apartment, choking her and stabbing her several times with a knife. He then inserted a pen in her vagina and masturbated on a towel beside her. The Manitoba Court of Appeal set aside the conviction for first degree murder and substituted a verdict of second degree murder. Justice Twaddle reasoned, at p. 123 C.R.:
Depending upon the jury's view of the sequence of events it is possible, even likely, in the present case that the acts which caused the death precede the sexual assault. If that was so, it cannot be said that there was an illegal domination of the victim prior to the acts which caused her death. There being no underlying sexual assault, the murder cannot be said to be the culminating act of domination. The single transaction concept in reverse does not, in my opinion, bring the murder within the ambit of s. 231(5) as a "death caused by a person while committing" a sexual assault. In consequence, a properly instructed jury might reasonably acquit the accused of first degree murder.
[25] The appellant relies heavily on Quesnel and contends that it was incumbent on the trial judge to instruct the jury that if they had a reasonable doubt about the sequence of events inside the Run home -- in particular, whether the sexual act or acts were performed on the victim after she was dead -- they could not find the appellant guilty of first degree murder.
[26] For several reasons, I do not agree with the appellant's submissions on this issue.
[27] First, in the pre-charge conference the trial judge explicitly raised the issue of the interpretation of s. 231(5) of the Code. He informed counsel of his proposed charge on this issue and obtained their concurrence with it:
THE COURT: The Crown has to prove beyond a reasonable doubt that the accused committed or attempted to commit a sexual assault against Sonia Run. It is the underlying offence which turns murder into first degree. If the jury are satisfied beyond a reasonable doubt that he committed or attempted to commit a sexual assault. As I understand the law, while committing, which is found in s. 231(5), does not require that the underlying offence, meaning sexual assault, and the murder occur simultaneously. It is sufficient if the murder and the sexual assault are connected and form part of the same transaction. That is the way I propose to put it to the jury. I don't think anybody can object to that. If you do, now is the time.
[DEFENCE COUNSEL]: No, we're fine.
[28] It is understandable that trial counsel regarded the proposed charge as "fine". The defence position did not turn on [page390] seconds or minutes or on the specific sequence of events. Rather, the defence position was to challenge whether there was a sexual assault at all. As expressed by defence counsel near the end of her closing address to the jury:
Are you able to conclude beyond a reasonable doubt that during the course of this attack Sonia Run was either sexually assaulted or an attempt was made to sexually assault her? And when you think about that issue, bear in mind, as you must, there is nothing about the examination of the vaginal area, or the internal examination of the anus, or the swabs that were tested by Jonathan Newman to support such a position. Don't, members of the jury, stretch the science more than it is capable of.
[29] Second, unlike Paré and Quesnel, there is no air of reality to the appellant's position on this issue. In both of those cases, there was direct evidence from the accused about the sequence of events. Here, in his statements to the police, the appellant denied any knowledge of, or participation in, the crime. He did not testify.
[30] Moreover, there was ample evidence of a sexual assault. Ms. Run was killed in her bedroom. There was semen, without sperm (the appellant had earlier had a vasectomy), on the box spring in the bedroom. The semen was mixed with the victim's blood. Ms. Run was found nude. She had an anal split. She was viciously beaten and strangled. Without evidence to contradict these facts, the conclusion that the sexual assault and the murder were part of a single transaction is inescapable. There simply is no air of reality to the theory that after being murdered, Ms. Run's body was sexually violated in a separate transaction unrelated to her murder.
[31] Third, with respect, I do not agree with the decision in Quesnel. In my view, it is inconsistent with Paré and with several recent appellate decisions, including one from the Manitoba Court of Appeal, which I prefer.
[32] Put succinctly, Quesnel articulates a view of s. 231(5) that is both too narrow and too artificial. In Paré, Wilson J. cautioned against an overly refined or technical approach to s. 214(5) (now s. 231(5)) of the Code. In that case, defence counsel contended that the words "while committing" in that provision meant that the aggravating offence (indecent assault) and the murder had to be committed simultaneously. Justice Wilson rejected this argument and adopted the 'single transaction' approach from Stevens. She said, at p. 631 S.C.R., p. 107 C.C.C.:
A second difficulty with the exactly simultaneous approach is that it leads to distinctions that are arbitrary and irrational. In the present case, had the respondent strangled his victim two minutes earlier than he did, his guilt of first degree murder would be beyond dispute. The exactly simultaneous [page391] approach would have us conclude that the two minutes he spent contemplating his next move had the effect of reducing his offence to one of second degree murder. This would be a strange result. The crime is no less serious in the latter case than in the former; indeed, if anything, the latter crime is more serious since it involves some element of deliberation. An interpretation of s. 214(5) that runs contrary to common sense is not to be adopted if a reasonable alternative is available.
[33] In R. v. Richer (1993), 1993 14676 (AB CA), 82 C.C.C. (3d) 385, 141 A.R. 116, (C.A.) at p. 394 C.C.C., Fraser C.J.A. made observations quite similar to Wilson J.'s comments in Paré:
Were it necessary to determine whether sexual activity with a murder victim following the moment of death could ever constitute first degree murder, I would be inclined to the view taken by the Saskatchewan Court of Appeal in R. v. Ganton (1992), 1992 8246 (SK CA), 77 C.C.C. (3d) 259, 32 W.A.C. 126, 105 Sask. R. 126. Wakeling J.A. concluded that a murder in these circumstances could fall within the parameters of s. 231(5) (b) providing the Crown had established the necessary linkage between the two acts. I tend to share his view. That is because I have difficulty with the proposition that a murderer intent on silencing his victim or rendering her compliant for sexual activity should be able to argue that murder in these circumstances is not first degree murder simply because his victim died by his hand before he could complete, or for that matter, begin the sexual assault.
This entire debate on whether the precise moment of the victim's death preceded or followed the precise moment of sexual assault is highly artificial. This "chicken and egg" approach to which came first, the murder or the sexual assault, obscures the essence of the rationale for Parliament's decision to classify a murder committed during a sexual assault as first degree. That rationale does not involve punishing a person for committing two separate crimes in a specific order -- first sexual assault, then murder -- but rather punishing a person because he has committed both in circumstances in which a temporal and causal connection exists between the two. What is important is not the order of commission but the linkage between the two crimes. When the required linkage is found to exist, it is the two crimes -- sexual assault and murder -- committed together, regardless of the order, which represent the ultimate exploitation of the position of power over a victim and arguably mandate a conviction for first degree murder.
[34] I agree with Fraser C.J.A.'s analysis. I am also attracted to the comment of Steel J.A. in R. v. Muchikekwanape (2002), 2002 MBCA 78, 166 C.C.C. (3d) 144, [2002] 9 W.W.R. 293 (Man. C.A.), at pp. 172-73 C.C.C. -- "The continuous transaction concept adopted by the Supreme Court in Paré . . . prevents the law from being brought into disrepute by requiring a debate of the precise second of the victim's death."
[35] For these reasons, I conclude that the trial judge did not err by failing to instruct the jury that s. 231(5) of the Code did not apply if the sexual assault took place after the murder. His instruction on first degree murder was sound and in full compliance with the decision of the Supreme Court of Canada in Paré. [page392]
(2) The appellant's statements to the police
[36] The appellant contends that the trial judge erred in two respects in his treatment of the appellant's two statements to the police, which were introduced as evidence: (1) he failed to instruct the jury in accordance with R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397; and (2) he failed to adequately instruct the jury about when they could use the appellant's statements as positive evidence of guilt.
[37] I disagree. The giving of a W. (D.) instruction is within the discretion of the trial judge. The appellant did not testify. The defence called no evidence. Defence counsel did not request a W. (D.) instruction with respect to the appellant's statements, nor object to the trial judge's charge on reasonable doubt.
[38] In W. (D.), Cory J. said that the failure to give a W. (D.) instruction is not fatal. The fundamental question is whether "the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply" (p. 758 S.C.R., p. 409 C.C.C.).
[39] The trial judge gave careful and accurate instructions about the presumption of innocence and the burden of proof. The jury was well-equipped to perform its duties.
[40] Nor do I think that the trial judge erred in his instruction concerning the use the jury could make of the appellant's statements. The trial judge told the jury that they could believe all, some or none of the statements. He continued:
It is critical that you appreciate that such remark or utterance may be evidence for or against its maker, the accused. Accordingly, should there be anything in the remark, utterance or statement which you feel in any way assists the accused, you must give it your careful attention. Similar care ought to be given to those portions which you find to tell against the accused. They are not to be viewed in isolation, but rather assessed in light of the circumstances under which the words were spoken and in light of the evidence adduced in this case.
It will be for you, as with any items of evidence, to determine what weight ought to be assigned to them. In so determining the weight, you are entitled to consider of course, the accused's emotional condition and state of mind at the time of making of such remarks and/or utterances as are attributed to him. You will want to examine all of the circumstances in determining what weight to attach to his remarks, utterances or statements attributed to the accused person.
I regard this as a succinct, balanced and sensible instruction.
(3) After-the-fact conduct evidence
[41] The appellant contends that the trial judge gave an insufficient limiting instruction in relation to the after-the-fact conduct [page393] evidence relied on by the Crown -- the application of make-up to hide facial injuries, the disposal of items in garbage receptacles on two occasions, and the alteration of an invoice at the store where the appellant worked.
[42] I disagree. The trial judge gave a limiting instruction in this area. Importantly, his charge reflected almost entirely the position defence counsel took on this issue during the pre-charge conference. The appellant cannot now object to the charge that he sought.
[43] In any event, the trial judge's charge on after-the-fact conduct evidence was appropriate. He specifically instructed the jury that "if there is some innocent explanation for the conduct, you can use the evidence to infer guilt only after you have rejected the innocent explanation." He then carefully reviewed the explanations advanced by the defence to explain the appellant's conduct.
(4) Identification evidence
[44] The appellant submits that the trial judge erred in failing to instruct the jury to disregard the evidence of the aestheticians who testified that they applied make-up to the appellant on the day of the murder. I disagree. The aestheticians' evidence was far removed from a "non-identification" scenario.
[45] The appellant also contends that the trial judge's instruction about the frailties of identification evidence was insufficient. I disagree. The trial judge's instruction in this domain was comprehensive and in full compliance with the leading authorities.
E. Disposition
[46] I do not want to leave this appeal without making a final observation. Having read a considerable portion of the transcript of this long trial, I was struck by the exemplary performance of the trial judge throughout the trial. His treatment of the jury, counsel and witnesses was consistently informative and courteous. He presided with firmness, but without ever being abrupt or contentious. He genuinely sought the assistance of counsel and was alive to the difficult role of counsel in a murder case. The end result of the trial judge's skill and conduct was the desired result -- a palpably fair trial.
[47] I would dismiss the appeal.
Appeal dismissed. [page394]