Judges from the Court of Appeal have explained their reasons for quashing the convictions of a couple accused of killing their infant.

And they advised lawyers to get it in writing when a defendant chooses not to give evidence. Maatkari Tamerry, 39, and Dr. Amenemhet Waset Amen-Ra Tamerry, 51, had their manslaughter conviction quashed in March, with the Court of Appeal ruling that they should not face re-trial over the death of A-Maya from malnutrition and dehydration.

The couple were found guilty in 2004 of manslaughter, after prosecutors told a jury that ten-month-old A-Maya died in March 2001 due to neglect at their hands.

Mrs. Tamerry served a one-year sentence, from which she was released in March 2005 while her husband was nearing the end of his five year sentence when the Appeals judges made their ruling.

During the original trial they were defended by Mark Pettingill and the court heard how, before her death, their baby was severely underweight, blind, and suffering from a slew of malnutrition-related illnesses.

Then-Director of Public Prosecutions Kulandra Ratneser said during the 2004 case that the child did not receive any medical attention for seven months before her death. And Mrs. Tamerry said she had not seen anything wrong with the baby until two days before she died.

Her husband did not give evidence during the trial, but their defence lawyer Mark Pettingill argued they were loving parents, and A-Maya’s death was “a tragedy and not a crime”.

Yesterday the judges explained in a written judgment that they quashed the convictions because the jury was not made aware of a report which outlined Mrs. Tamerry’s history of post-natal psychiatric problems, the couple should have had separate counsel instead of both being represented by Mr. Pettingill, and Mr. Pettingill did not heed Dr. Tamerry’s instruction that he wished to give evidence.

In an affidavit Mr. Pettingill denied having possession of a medical report which outlined Mrs. Tamerry’s mental issues and said he advised Dr. Tamerry not to give evidence because his client had made a number of statements and instructions which “I thought would be fundamentally detrimental to his defence”.

In the written submission Court of Appeal President Justice Edward Zacca said yesterday: “We do not think it necessary for the court to come to a decision as to whether Mr. Pettingill was aware of the report. The fact is that this report was in existence and available prior to the trial. This would have presented Mrs. Tamerry with a defence which the jury would have had to consider. It is not for this court to speculate as to whether the verdict of the jury would have been different.”

He continued: “It is clear to us that separate representation would have been required. If such a defence had been put forward, it is reasonable to expect that a different counsel for Dr. Tamerry would have advised him to give evidence on oath in his defence.

“The defence of each would have been different.” And he said: “The issue as to whether Dr. Tamerry was denied the opportunity to give evidence in his defence was before this court. It seems to us that whether the advice of Mr. Pettingill was accepted or not by Dr. Tamerry, the evidence in this case was such that it was appropriate for Dr. Tamerry to take the witness stand in his defence.

“We wish to recommend that where the accused in a case has decided not to give evidence, whether on advice of his counsel, or on his own decision, counsel should have it in writing and signed by the accused.”

The judges also explained that though the Crown had a strong case against the couple they had decided against retrials because they had already server all , if not most, of the original sentence handed down to them.