The Court of Appeal has freed a man jailed for nine years for serious sexual assault on the grounds that the judge's directions to the jury were a "substantial miscarriage of justice''.

Within an hour of Justice Sir Derek Cons telling Allen Rudolph Tait "we allow your appeal and overturn your conviction and sentence and on this occasion we make no order for retrial'' he was in his lawyer's office.

Court of Appeal President Sir James Astwood, Sir Philip Clough and Sir Derek found that Assistant Justice Philip Storr erred in his summation and directions to the jury, depriving Mr. Tait of a fair trial.

When contacted yesterday, Mr. Tait said of his 20 months in custody: "It was an experience. I'm just glad that justice has been served. I want to thank my super lawyer, Patricia Harvey. She's the best lawyer there is. I'm just happy.'' Throughout the trial and appeal Mr. Tait maintained his innocence, saying the sex he had with the woman was consensual.

The appeal turned on whether or not evidence who the man was with Mr. Tait when the alleged victim met him on March 27.

The complainant told the court a man, "Sticks'' was with Mr. Tait when she gave him a ride into Sandys Parish from Southampton. The prosecution did not call "Sticks''.

Mr. Tait said he was with Antione Brangman, with whom he had been drinking all day. Mr. Brangman was not called as a witness.

Mr. Justice Storr told the jury the complainant's evidence was "uncontradicted'' and that the law directs them to accept such evidence as fact.

Sir Derek wrote: "With respect to the judge he felt there were two errors.

One was of fact. The complainant's evidence was not un-controverted.

"The evidence of the appellant was to quite the opposite effect,'' he continued. "The other was an error of law.

"There is no rule that if what a witness says is not contradicted by other evidence then the jury must accept what the witness has said as true. A jury exercises its own judgment on all questions of fact.

"It may, but does not necessarily (have to) accept un-controverted evidence,'' Sir Derek wrote.

In this case the Court felt the jury "was left in the position that, no matter to what other conclusion they might otherwise have come, on this point the jury had to conclude that the appellant was untruthful. That cannot be accepted''.

In the appeal, newly arrived Senior Crown Counsel Vinette Graham-Allen, suggested that Mr. Justice Storr's directions "had not occasioned a substantial miscarriage of justice'' either collectively or individually.

"We cannot ignore that,'' Sir Derek wrote. "(Directions on evidence on who the witness was) was a serious misdirection, usurping, as it did, the function of the jury.

"In our view the appellant was deprived of his right to a fair trial, and that is, beyond question, a substantial miscarriage of justice. The conviction and sentence must be set aside.'' Concerning its right to order a retrial, the Court of Appeal "decline to make such an order'' because the Crown would be given a second chance to improve the case against Mr. Tait.

"In the present case there was no fatal deficiency,'' Sir Derek added. "But if further evidence is indeed available, then an order for retrial would enable the prosecution to bring a stronger case than it did before.

"Added to that is that it is now a long time since the Appellant was first arrested and charged. We decline to make such an order.'' Concerning the differing version of events, Sir Derek wrote: "It is unlikely then that Brangman's evidence could have helped resolve the dispute between the complainant and the appellant, but the evidence from Sticks might have done.

"It is an important question, for the jury might well have thought that the true nature of how the complainant and Appellant came together that night was a reliable point to the nature of what happened between them later.

"But Sticks was not called and there the matter should have rested,'' he added. "Nevertheless the judge directed the jury's attention to it...'' With that, after being in custody since his arrest in March 1999, Mr. Tait walked from the Court of Appeal a free man.