Moments before a jury was sent out to consider its verdict on a man charged with wounding with intent they were told they could also consider as an additional option a charge of simple wounding.

The last minute decision by a judge to put the extra choice to the jury ? without first telling prosecution and defence lawyers ? meant there was no time for legal counsel on either side to offer advice to the jury.

However, while the circumstances were highly unusual and not desirable in the eyes of three Court of Appeal judges, they have ruled it is not enough to warrant the trial be revisited.

Puisne Judge Carlisle Greaves should have forewarned lawyers he was about to give a jury the additional choice of considering a lesser charge of simple wounding against Brandon Barnes Brockett who, up until that point, faced only the more serious accusation of wounding with intent, according to appeal judges.

Mr. Justice Greaves added the additional alternative at the end of the 2005 trial of Mr. Brockett but it meant neither the prosecution counsel nor the defence lawyer had an opportunity to address the jury on this further option in the Supreme Court before they retired to consider a verdict.

Mr. Brockett had originally been charged with attempted murder and wounding with intent following a stabbing incident at the Malabar club in Dockyard in 2002.

The attempted murder charge was dismissed during the trial by Mr. Justice Greaves leaving only the wounding with intent charge, but in his summation to the jury he said they could consider a lesser offence of unlawful wounding as an alternative if they found there was no deliberate intent by Mr. Brockett to wound the victim.

The jury eventually returned a not guilty verdict and Mr. Brockett walked free.

Court of Appeal President Mr. Justice Edward Zacca and fellow appeal judges Sir Austin Ward and Sir Charles Mantell, who reviewed the case, said: ?We think it advisable where there is no (prior) count for the lesser offence for the consideration of the jury, that he (the judge) should so inform counsel, prior to their addressing the jury, so as to give them an opportunity, if they so wish, to address the jury on the lesser offence.?

And a further point of appeal was raised by the Department of Public Prosecutions over the way the jury was asked to return its verdict.

Having been given the opportunity to consider both the wounding with intent charge and the lesser charge of wounding, the jury was asked if it had a verdict, to which the foreperson replied ?yes? and ?not guilty? without being asked to specify if that related to the wounding with intent or the lesser charge of wounding.

The judges said they were ?somewhat surprised? to find it necessary to give guidance to judges and counsel as to the proper procedure for the taking of a verdict, and said a clear verdict should have been elicited on both indictments.

However, even though this procedure had not been followed, the Appeal judges said: ?We find that the reasonable interpretation of the verdict is that the jury found the accused not guilty of both offences.?

The appeal brought by the DPP on both the late inclusion of a lesser indictment at the behest of Mr. Justice Greaves and the manner in which the verdict from the jury was taken, was dismissed by the Court of Appeal.