of assault with intent to rape, the Court of Appeal was told yesterday.

The Hon. Mr. Justice Ward should not have said a broken earring could be used to corroborate the complainant's story, lawyer Mr. Timothy Marshall told the court.

And the case against Henry Charles Fubler was weak enough that the error could have made the difference in the jury finding Fubler guilty, he said.

In January, Mr. Justice Ward sentenced the 59-year-old Pembroke taxi driver to two and a half years in prison for attempted "date rape''.

The woman said Fubler attacked her in a Smith's Parish lay-by off Harrington Sound Road after the two had dinner at a restaurant in Southampton. Fubler denied assaulting the shopowner and said any sexual contact between the pair on December 23, 1991, was consensual.

Mr. Marshall told the Court of Appeal that he and Crown Counsel Mr. Stephen Harrison were partly to blame for the judge's error, since they agreed in their arguments the broken earring found in Fubler's car could be used to corroborate the woman's story.

"But at the end of the day, the duty of the judge is to advise the jury on the law of corroboration, and to get it right,'' he said.

The three-judge panel headed by Mr. Justice Harvey da Costa reserved its decision.

The earring could not serve as corroboration under the law, because it was not independent of the story told by the complainant, Mr. Marshall said.

After Mr. Justice Ward gave the jury the standard warning that it was dangerous to convict a man of sexual assault without evidence that corroborated the complainant's story, he said the earring could serve as corroboration.

"Perhaps the result may have been different if all the jury had to concern themselves with was that what this case amounted to was her word against his.'' Mr. Harrison argued that what Mr. Justice Ward told the jury was correct. The earring could serve as corroboration in this case.

"Where the issue is consent, and sexual contact is not in dispute, the area that requires corroboration is that of assault -- or the other side of consent,'' Mr. Harrison said.

The broken earring suggested "there was violence that took place in that car sufficient to damage the jewellery''.

The judge even told the jury there were other ways the earring could have been broken than by Fubler's violence, he said.

Even if the Court of Appeal believed Mr. Justice Ward erred, "there is no substantial miscarriage of justice,'' Mr. Harrison argued.

Under the Sexual Offences Amendment Act 1993, which took effect on June 1, a judge is no longer to instruct a jury it would be dangerous to convict without evidence that corroborates the complainant's story, Mr. Harrison said.

If the Court of Appeal was to quash the conviction and order a new trial, the presiding judge would give no such warning to the jury, he said. "You may ask yourselves what is the point in sending the matter back.''