After four days of hearings three Supreme Court justices reserved judgment on the appeals cases of Kirk Roberts and Vincentian Alphonso Holder yesterday. Roberts, 40, of West Side Road, Sandys, was given a 10-year prison sentence after being convicted last year of conspiring with Holder to import over 200 pounds of marijuana into Bermuda.

It has been the appellants' position that undisclosed documents prevented preparation of a comprehensive defence. However, Crown counsel Shade Subair argued that both the prosecution and the defence had to "carry burdens" in making application to trial judge Norma Wade-Miller to reveal or suppress this evidence.

It was the Crown's responsibility to prove the nature of the information should be kept from the public while it was the defence's task to prove the material was significant to its defence.

Ms Subair said the Crown fulfilled its obligation in making an extensive application before the trial judge. This application was made in the absence of the defence who were told the hearing would take place and raised no objection.

"The defence's burden has not been discharged," Ms Subair said.

During Monday's hearing Appeals Court president Sir James Astwood questioned whether any undisclosed information would have had any material impact on the case.

Ms Subair maintained, as argued by the Crown during trial, the identity of an informant and the nature of information revealed in the documents had to be protected.

The way the matter was discussed would have been contrary to the public's interest and would have resulted in the disclosure of the content of the documents, she said.

She added: "It is not the Crown's job to prove material it seeks to disclose is material to the defence."

Holder's lawyer, Peter Farge, quickly reiterated one of his claims that the Crown did not prove conspiracy and that Ms Wade-Miller failed to provide proper instruction to the jury in regard to the conspiracy charge levelled against his client.

"A literal reading of the record doesn't say or prove Holder was present," he said.

He added: "Ms Wade-Miller seems to be saying that by Holder's mere presence at a house and on the boat makes him guilty of conspiracy while it doesn't speak to his intent."

Ed Bailey, acting on behalf of Roberts, reminded the court that the defence were not privy to all documents. He said direct references made from Golembeck's March, 2000, statement and quoted from the trial record were made by Holder's lawyer.

The justices did not seem to agree.

"Mr. Bailey, it would be way out of order in light of what we see in the record that Holder had it (the statement) and you didn't," the court president said.

And Roberts' leading counsel, Frank Phipps, QC, ended arguments by reminding the court that the Director of Public Prosecutions (DPP) had initiated and participated in the preliminary inquiry and then ended it as it were "aborting his own child". By doing so, the DDP denied Roberts a fair hearing.

The Court of Appeals will deliver a ruling sometime during the term.

Roberts and Holder were remanded into custody.