A leading appeal judge has spoken of an apparent inconsistency in a criminal trial last year that led to the conviction of a couple for possession of more than $200,000 worth of heroin in their home.

Former Lord Justice of Appeal Sir Murray Stuart-Smith has noted that the judge in the original trial appeared to have alternated between two sections of the Misuse of Drugs Act 1972 when directing the jury before they retired to reach their verdicts.

A claim that the jury was misdirected in the case is at the centre of an appeal into the convictions of Oshane Eugene Darrell and his partner Jennifer Medeiros last July.

Mr. Justice Stuart-Smith has noted that two potentially conflicting sections of the 1972 Act appear to have been invoked during the summing up in the trial last year.

The conviction of the couple is being contested in the Court of Appeal by lawyers Frank Phipps, representing Darrell, and John Perry QC for Medeiros.

Darrell was jailed for ten years and Medeiros for seven years for being in possession of 697 grams of heroin, which was found in a bathroom cabinet and an envelope in a kitchen drawer at their Somerset condominium in November 2002 during a Police raid.

Darrell was given a longer sentence because he was also found guilty of possession of the drug with intent to supply as a set of scales said to be used for weighing the drugs was found in a high-level kitchen cabinet that only he could reach.

The court has heard from Mr. Perry, who could set a legal precedent by testing a section of the Bermuda Act that has no corresponding section in the UK Act, of which it generally mirrors. He has delved into case law dating back to the 1960s to support his argument.

Bermuda?s unique additional section (Section 32 1B) states that where a person is in possession, custody or control of anything containing a controlled drug, it is presumed ? until otherwise proven ? that the person has such possession of the drug.

However, in an earlier section (Section 29) of the same Misuse of Drugs Act, it is a defence if the accused can prove they had no knowledge or reason to suspect the existence of the drug.

Medeiros has consistently maintained she had no knowledge of the drugs in the home, which she owned and shared with Darrell.

In defending the original trial Crown Counsel Carrington Mahoney has pointed out that the couple were not at home when Police conducted a search and discovered the heroin.

In a subsequent Police interview Medeiros, who was at a relative?s home at the time of the raid, said she had known Police were at the condominium but had not gone to find out what was going on because she was afraid Police might take away her baby daughter.

Mr. Mahoney said Medeiros claimed she did not use the bathroom cabinet where the majority of the heroin had been found, yet female sanitary products were stored beside the bag of heroin when it was found.

The Court of Appeal has also heard that Darrell told Police in an interview ? referred to in the original trial as having a degree of ?trickery? involved ? that he was the sole possessor of the drugs in the house and they were for his personal use.

At the start of the appeal Mr. Phipps, representing Darrell, said there was a physical element as well as a mental element to the charge his client faced and that while there was no question of physical possession of the cocaine because it was found in the house, he said it must also be proved that Darrell had knowledge of the drugs.

A number of other appeal grounds have also been presented on behalf of the couple during the hearing, which started on Monday.

However Mr. Mahoney said: ?There was no miscarriage of justice. It was made abundantly clear to the jury that, irrespective of whatever evidential burden or any burden the appellants may have it was for prosecution to establish the guilt of each (of them).?

The Court of Appeal is being chaired by President Justice Edward Zacca, sitting with Justice Stuart-Smith and Justice Gerald Nazareth.

Hearing the competing legal arguments Justice Stuart-Smith noted a potential area of confusion the jury had faced as a result of the original trial judge ?hopping? between Section 29 and Section 32 or the Misuse of Drugs Act while summing up of the case.

The hearing concluded last week but the Court of Appeal has yet to deliver its judgement.