Gernell Darrell should not have been convicted of murdering a homeless man because the judge should have explained that he may have had a defence of provocation, his lawyer argued at the Court of Appeal yesterday.

But Director of Public Prosecutions Khamisi Tokunbo, arguing for the murder conviction to be upheld, said Darrell had been the aggressor at all times and there was not a shred of evidence that he had been provoked.

Darrell, 23, was convicted at Supreme Court in January of murdering George Kelly by stabbing him once through the heart at the taxi rank in Church Street, Hamilton, in May 2001.

Minutes before the fatal attack, Mr. Kelly had stabbed Darrell in the chest with a screwdriver at the bus station when the pair got into an argument after Darrell accused the deceased of beating up his (Kelly's) girlfriend.

Mr. Kelly ran off to the taxi rank after the initial fight, and the jury accepted that Darrell pursued him there and stabbed him once.

Mr. Kelly then fled the taxi rank and his body was found the following morning by the car park at the Silver Spoon restaurant on Victoria Street.

Darrell's lawyer Mark Pettingill argued yesterday that the two incidents at the bus station and the taxi rank were part of a single disturbance and that Darrell could have lashed out in self-defence because he feared he was about to be attacked again.

But Mr. Tokunbo, who said Darrell's entire defence at the trial had been a "smokescreen," said the appellant had tried every defence at Supreme Court except provocation, and there was no evidence to support the claim he been provoked at any time.

Mr. Pettingill, who is pushing to have the murder conviction quashed, argued that trial judge Assistant Justice Charles-Etta Simmons, had not explained to the jury that Darrell may have had a defence of taking a pre-emptive strike.

"It is not a straightforward case, it is a difficult case," said Mr. Pettingill.

"It is certainly not a straightforward case of a man is injured, he pursues the other man, and as soon as he gets a hold of the other man, he stabs him once to get him back.

"There is confusion and one has to look at the whole situation. This was a continuous event closely linked together. He has been stabbed. There is a further confrontation, and he (Darrell) must have reasonable grounds that he could be stabbed again, and he preemptively stabs him.

"The small straw that it is, wasn't before a jury. The judge totally took that away from the jury. Maybe the jury might not have liked it and wouldn't accept that it was a continuation and wouldn't reasonably accept that he was going to be stabbed."

Mr. Justice Edward Zacca, sitting with Appeal Court President Sir James Astwood, and Mr Justice Lindsay Worrell, asked why Darrell went after Mr. Kelly when he had already been stabbed by him.

Mr. Pettingill suggested it was to ask him why he had been stabbed. Or it could have been "Dutch courage" or "foolishness", he added.

Mr. Pettingill also suggested there should be a retrial because the judge allowed statements which were taken before Darrell, of Swansbay Hill, Pembroke, had a lawyer, and which the Crown used as evidence that he was lying.

In later sworn statements, however, Darrell admitted several times that he stabbed Mr. Kelly at the bus station.

Mr. Tokunbo said: "In the whole lot of smoke that went up in the smokescreen of the defence, the only smoke that didn't go up was provocation.

"There was virtually nothing that came out on behalf of the defence in cross-examination. I said in the trial it was a low blow by the defence to suggest that a friend of the appellant was the murderer.

"The defence has violently mis-characterised the evidence. There is no evidence of hostility at the taxi rank. Not only at the taxi rank, but at the bus station, the defendant was aggressor.

"The deceased retreated and pleaded to be left alone. The appellant was persistent and followed him twice. There is no evidence of provocation."

Darrell had said in his statements that he stabbed Mr. Kelly at the bus terminal, so any claim of self-defence he may have had, would have to be at the bus station and not the taxi, where the fatal stabbing took place, said Mr. Tokunbo.

There was no substantial risk of miscarriage of justice through a denied self-defence or provocation defence, said Mr. Tokunbo.

The Appeal Court will deliver a written response later and Darrell, who is serving life, was remanded again in custody.