A man who was sentenced to 11 years for the serious sexual assault of a 29-year-old woman appealed his conviction yesterday on the grounds that Police "tricked" him into smoking a cigarette that ultimately led to DNA evidence.

Defence attorney Elizabeth Christopher claimed in the Court of Appeal that defendant Scott Martin had not requested a cigarette after being arrested by Police, but instead was offered one by officers with the sole purpose of obtaining DNA.

She said her client would never have taken a cigarette if he had thought it was to be used in evidence against him, and she said the way the evidence was obtained made it very difficult for her client to defend himself.

But she also questioned the quality of the DNA, saying that the evidence had not been collected in sterile conditions.

She said, while under arrest, Martin had been given a drink of water from an average cup at Police Headquarters, which she claimed could easily have had traces of somebody else's DNA on it. Ms Christopher said there was nothing to prove that the single DNA source found on the cigarette butt, which matched DNA found on a baseball cap left at the scene of the crime, had not been transferred from the cup.

And she said as no DNA samples had been taken directly from her client, there was no evidence to prove that the two matching DNA samples had indeed come from the defendant. Martin, 35, from Warwick, was found guilty of the sex assault against the English accountant, who cannot be named for legal reasons, in June of this year. Supreme Court heard how the woman had been out with friends and was on her way home to Southampton in October of last year, when she was thrown out of a cab by a taxi driver at about 3 a.m. because she was eating. It was agreed in court that Martin had approached the woman and the cab driver as they rowed over the fare near to the P.H.C. Club on Middle Road in Warwick.

The prosecution claimed the taxi driver then drove away and Martin offered to take the tearful woman home on the back of his bike.

The woman told the court how she had explained to the rider that she lived near the Riviera Estate in Southampton, but became concerned when he ignored her directions and began to ride along Riddell's Bay Road in Warwick. Worried for her safety, she jumped off the bike and began to walk the rest of the way home when she was suddenly grabbed from behind and pulled backwards into Heron's Nest Drive, off Middle Road.

There the attacker threw her to the ground and attempted to rape her, ripping off her clothes and leaving her body battered and bruised.

The woman managed to fight the man off and he ran from the scene after failing to rape her. her. Minutes later the woman was found in a heap at the side of the road by an off duty Police officer.

It was claimed in court that Martin had been sleeping rough for some time and had left clothes and belongings with different people across the Island.

How his baseball cap had come to be at the scene, Ms Christopher said they did not know. She said yesterday: "They only got one hair with DNA from the cap to match the DNA on the cigarette. "There were other hairs, but we don't know who else wore that cap."

Yesterday, Ms Christopher also claimed the presiding judge of the trial, Assistant Justice Charles-Etta Simmons, had misdirected the jury on the matter of identification. Ms Christopher also appealed the sentence, asking for an eight-year term, instead, saying the attacker had not punched the victim when she resisted his advances.

But President of the bench Sir James Astwood said the case did not rely on identification alone because of the DNA, and described the attack as "atrocious".

He said to Ms Christopher: "If he's guilty, this is an atrocious case. A taxi driver dumping a lady on the road - would you like that to happen to you or your mother - because she was eating a hot dog in the cab.

"Then somebody taking advantage of her because she was slightly inebriated. Look at the scratches all over her body. That would suggest to me that she was not as inebriated as you suggested (in the trial). She fought back and he did not overcome her. Injuries like this do not come from the ground. He had his hands around her neck."

For the Prosecution, lawyer Vinette Graham-Allen said Police officers had stated that Martin had requested a cigarette.

She turned to Martin's statement, in which he described how officers had not let him have cigarettes for a night and a day before he was eventually given a packet. Ms Graham-Allen said if Martin had not wanted a cigarette, the officers could not have forced him to have one.

And she said it was only after Martin had smoked them, that the officers thought about the possibilities of DNA and so decided to keep the butts for testing. Ms Graham-Allen said: "The judge told them that they must be satisfied there was no contamination of the cigarette butt. She also pointed out in summing up that the victim stated that she did not see the attacker's face at Heron's Nest Drive." The lawyer said Assistant Justice Simmons had left it to the jury to decide.

But Appeal Court Judge Philip Clough questioned whether the trial judge had done enough in directing the jury on the matter of identification.

He said: "Is that the best way to go about it? Was she right to leave it to the jury like that?"

The Appeal Court judges are expected to give a decision within the next few weeks.