woman to have anal sex with him was yesterday dismissed by the Court of Appeal.

Ruthburn Adverse Phillips, 42, was found guilty of buggery by a Supreme Court jury last April and sentenced to three years in prison by Puisne Judge the Hon. Mrs. Justice Wade.

Because of the guilty verdict, Phillips did not face alternate charges of attempted rape and indecent assault.

During the trial, the court was told that the woman, recently divorced from her Bermudian husband, went willingly with Phillips to a secluded beach in Warwick on December 12, 1990.

The two sat on a rock chatting for a few minutes after which the woman said Phillips kissed her and she tried to fight him off.

Phillips testified that the woman consented to have sex with him and that all he wanted to do on the beach was to enjoy the view.

Yesterday, Mr. Philip Perinchief, for Phillips, made the appeal on six grounds that Mrs. Justice Wade erred in her jury summation: In dismissing Phillips' defence of mistake in stating that because of the admission that he had sex with the woman, the defence does not apply; In offering a prejudiced and biased exposition of the facts to the jury; By accepting that evidence given by hospital pathologist Dr. Keith Cunningham was a means of corroborating the complainant's view of the facts but dismissed that it might have relevance for Phillips; In not allowing an application against a misjoinder of counts one and two which were contrary and highly prejudicial; and In dismissing in a cursory manner and attaching unfortunate and unfair comments to the defence.

Mr. Perinchief said that Dr. Cunningham testified that the woman had an "unusual anal tract'' and that "in his 30 years of practice he had never seen one so large''. He said that his client mistakenly entered the tract believing he was entering her vagina and still believes so today.

"Defence, no matter how weak, should fairly be put to the jury,'' he said.

"It's not a question of it not being put, but worse, put unfairly. The comments and treatment of the defence of mistake have rendered fatal to the defence.

"The cumulative effect of such an exposition so rendered it almost laughable by the time it was in the minds of the jury.'' Mr. Perinchief said that with respect to the issue of corroboration, Dr.

Cunningham's evidence indicated that the woman's vagina was never entered.

"It bears out the defence of mistake although it is a corroboration of the complainant's evidence,'' he said.

And he said that he found it difficult to see how the charge of attempted rape could be an alternative to the charge of buggery or vice-versa.

Mr. Perinchief argued that the issue of mistaken entry was presented to the jury by Mrs. Justice Wade in her summations as a periphery rather than a central defence. He said that the jury was left with the idea that the defence was at best, a "red herring''.

"Her comments in fact were pointing toward influencing the jury to find in a certain way,'' he said. "I respectfully submit that the learned trial judge went too far.'' Crown Counsel Mr. Brian Calhoun was not required to present his submissions to the court.