A HAMPSHIRE photographer found guilty of assaulting Heather Mills as he tried to take her picture today had his conviction quashed after a court heard she was too stressed to attend his appeal hearing.

Jay Kaycappa was sentenced to a 140-hour community order for grabbing the ex-wife of Sir Paul McCartney by her shoulder and taking her photograph in a subway.

He was convicted of assaulting Ms Mills on July 5 2006 and her friend Mark Payne the following evening after a three-day trial at Brighton Magistrates' Court last August.

Magistrates heard the incident took place as Ms Mills cycled to Brighton from her seafront home on the exclusive Western Esplanade in Hove, East Sussex, accompanied by her personal trainer Ben Amigoni, Mr Payne and his partner Michael Shilub.

The former model and anti-landmines campaigner told the court she ducked into the subway to avoid the paparazzi but was alarmed when she spotted a photographer at the subway's exit.

Magistrates handed down a 12-month community order to Mr Kaycappa consisting of 140 hours unpaid work concurrent on each of the two counts of assault.

Father-of-three Mr Kaycappa, 32, of The Hurdles, Fareham, was also ordered to pay Ms Mills £100 and Mr Payne £50, plus costs of £1,000.

A three-day appeal against his sentence and conviction was due to start at Lewes Crown Court tomorrow.

But at an administrative hearing today prosecutor Dale Sullivan said the Crown could not respond to the appeal because of difficulties in bringing witnesses to give evidence.

He said: ''The position of Ms Mills is that she is refusing to give evidence. The Crown in her particular circumstance cannot serve a summons because we don't know where she is.

''Reading Press reports we believe she is in the east coast of America.'' Judge Richard Brown said that a document had been received from a GP saying Ms Mills was suffering from stress.

The judge added that when the Crown tried to contact Ms Mills they were diverted to her sister who said there was no need for her to give evidence and there was no-one in a position to say whether or not she would be able to attend court.

In the cases of Mr Payne and Mr Shilub, Mr Sullivan said they were willing to appear via videolink from America but a legal technicality meant the court could not accept evidence on an appeal via a video link-up.

Judge Brown said: ''In the light of the Crown not responding to the appeal, the appeal is allowed on the two counts.'' Outside court, Mr Kaycappa's solicitor Justin Rivett said his client, who was not in court, would be disappointed not to have had his appeal heard.

He said: ''I know that he will be disappointed not to have been given the opportunity to have his defence heard before the court and I endorse his belief that he had clear photographic evidence that proved he didn't commit the alleged offence on Ms Mills.''