Appeals Court judges yesterday freed a 52-year-old man jailed for sexually and physically assaulting his wife.

The man, who cannot be named for legal reasons, was the first person to be jailed in Bermuda for a serious sexual assault on his wife.

But yesterday, he was set free by the Court of Appeal which allowed an appeal against sentence and said the man could be released from prison immediately.

The appeal was heard earlier this week when the wife begged the court to free her husband who was jailed for two and a half years in July for the serious sexual assault and physical assault.

Counsel for the man lodged an affadavit from his wife saying she had forgiven him.

Miss Elizabeth Christopher, who lodged an appeal against conviction and sentence, told the earlier appeal hearing: "The sentence was harsh and excessive and should probably have been two years.

"I think the court has to bear in mind that the parties were married and lived together. Given the wife's forgiveness, I would ask the court to suspend a two-year sentence in its entirety.'' Yesterday, in its ruling, the Court of Appeal dismissed the appeal against conviction -- meaning the man is still guilty of the offences.

But the ruling added: "There is merit in the application for leave to appeal against sentence.

"We grant leave and allow the appeal against sentence and impose such a period of imprisonment which would allow the appellant to be released from prison immediately.'' The man was jailed last July after being found guilty by a majority verdict following the original Supreme Court trial.

A jury found that on August 18 last year the man pulled his wife to the bathroom floor, sexually assaulted her and tried to choke her.

The woman claimed she had not consented to sex and that she asked her husband to stop and tried to push him off her.

The victim's nephew told the Supreme Court he kicked down the bathroom door when he heard gasping for air. He added he saw the man lying naked on the woman with his hands around her neck.

During the appeal hearing, Miss Christopher told the court that the original trial judge had erred by not discharging the jury after they heard an "emotional outburst'' from the victim as she gave evidence.

The victim said: "He was doing it before and I didn't know what to do.'' But Crown Counsel Mr. Khamisi Tokunbo said the outburst came at the start of the trial, which lasted nearly three weeks, and the jury would be unlikely to attach much significance to it by the end of the evidence.

Mr. Tokunbo added: "There was no substantial miscarriage of justice -- the jury would have come to the same result in any case.'' He added: "A woman does not have to have any physical relations or intercourse if she chooses.'' The Court of Appeal will give its reasons for the ruling at a later date.