yesterday that the trial judge misdirected the jury on three occasions.

Alan Rudolph Tait was jailed for nine years last November for the repeated rape of a 38-year-old woman on the Railway Trail in Sandys.

Puisne Judge Philip Storr said he would have sentenced Tait to ten years in prison if it had not been for the fact that he had worn a condom throughout the attack.

But yesterday, the 26-year-old's defence attorney appealed for the conviction to be quashed, claiming Judge Storr had misdirected the jury in his summing up.

And on behalf of her client, barrister Patricia Harvey-Burch said she would be completely against a suggestion by Appeal Panel President James Astwood that a re-trial could be an option on the grounds that it would give the prosecution "two bites at the cherry''.

Tait, of Cook's Hill Road, Sandys, was found guilty of raping the woman, who was not named for legal reasons, in March of last year.

He was alleged to have flagged the woman down as she rode on her moped and asked her for a lift.

The trial heard how she was then forced to ride to the Railway Trail where she was repeatedly assaulted.

Tait claimed he had believed the sex was consensual.

But as a result of the ordeal, the victim said she had suffered emotional trauma and found herself crying constantly and unable to sleep at night.

But yesterday, Ms Harvey-Burch said had Judge Storr not misdirected the jury, her client may have walked free from the court.

Her three main complaints were that at one point of the summing up, Judge Storr told the jury that the emphasis was on the Crown to prove that Tait had honestly believed the sex was consensual.

However, earlier in the judge's summation, he had very pointedly stated that it was for the Prosecution to prove its case and not for the defendant to prove his innocence.

The judge had also told the jury that comments made by the victim in her evidence statement would corroborate her claim -- when in fact victims cannot corroborate themselves.

And thirdly, he said that the jury should accept what the victim had said in her evidence, despite the fact that the defendant had disagreed with her comments.

Appearing in the Appeal Court yesterday for the Prosecution was Vinette Graham-Allen.

She agreed that each of the three instances could be interpreted as a misdirection, but said cumulatively, the misdirections did not have such a fatal impact as to render the conviction unsafe.

And although she agreed that comments made by Judge Storr about proving Tait's honest belief did not make sense, she said he had made it clear earlier in his summation that the burden of proof was on the prosecution.

Ms Graham-Allen said: "I would submit that this is an appropriate case to be ordered to re-trial.'' But defending, Ms Harvey-Burch, who had earlier in the day withdrawn an application to appeal the sentence, said she wanted the conviction quashed or nothing.

She added: "I would say this would be a complete travesty to allow this to go to re-trial. The Crown would get two bites at the cherry.

"There were so many errors. Their cumulative effect is such that they cannot be cured. There is no question of misdirection.

"The evidence was not so overwhelming that a properly directed jury could only have convicted on serious sexual assault.'' The case was adjourned and a decision is expected from the appeal panel soon.