Two Southampton men will have to wait until this Friday to learn if they will be ordered to stand trial again for assaulting Police officers.

The last time the men appeared in court, almost three years ago, they were acquitted of all wrong doing.

But on Friday the Attorney General's Chambers made an appeal before a Supreme Court judge to squash the lower court decision and order a new trial for Carlos Rogers and Cannoth Roberts.

Rogers, of Sinky Bay, maintained throughout his Magistrates' Court trial that he did not cause grievous bodily harm, obstruct or assault Sgt. Graham Alderson in Sandys.

Rogers also denied violently resisting arrest.

And Roberts, of Middle Road, refuted suggestions that he assaulted two Police officers, obstructed another officer and violently resisted arrest.

The charges stemmed from Police attempts to question and search both men under the Misuse of Drugs Act on September 29, 1994.

The officers -- a Sergeant and two officers -- approached the two men who were sitting in a car on Cambridge Road around 3 a.m. when the men reportedly became "abusive and violent''.

The scene erupted into a brawl with Sgt. Alderson sustaining the most serious wounds which required stitches to close.

But after hearing evidence from Police and the defence, then-Magistrate Charles-Etta Simmons ruled that the officers did not present "reasonable'' grounds for executing a search under the Misuse of Drugs Act.

Based on that finding she acquitted both men of all charges.

On Friday, Crown Counsel Brian Calhoun said the Ms Simmons committed several errors when deliberating in the matter.

"The first error was that the she interchanged suspicion with belief -- suspicion is less than belief,'' Mr. Calhoun explained. "The officer only had to suspect the pair of committing an offence under the Misuse of Drugs Act.

Belief includes and absorbs suspicion.'' He said that Police testimony, that the pair were acting hyper and defensive, in addition to the fact that they were stopped at 3 a.m. in a known drug area was enough for the officers to become suspicious.

According to Mr. Calhoun, the second "error'' committed by the Magistrate was to use her subjective opinion instead of thinking like a Police officer or a reasonable person.

"She had to think `would this be reasonable in the mind of an officer','' he said. "The Magistrate must think like an officer not a judge. She used her own subjective opinion to determine whether something was reasonable or not.'' Mr. Calhoun said the third error in the case was that the Magistrate "engaged in irrelevant considerations'' in her deliberations.

"For example she looked at whether anything was found in the search,'' he pointed out.

Mr. Calhoun then told Puisne Judge Richard Ground that even if the officers had no reasonable grounds to suspect the men of committing an offence, Ms Simmons was wrong for saying that someone could use any amount of resistance to challenge an unlawful arrest.

"He could defend himself from an unlawful search or arrest,'' he conceded.

"But he cannot use excessive force to do so. If he does, he would be guilty of the assault charge.

"It will become a dangerous situation when someone thinks they can use a high degree of force against Police. You will probably get escalating situations like you had here. '' Rogers used an object -- reportedly handcuffs -- to hit Sgt. Alderson on the back of the head.

And he added that Ms Simmons "piggy backed'' Roberts charges onto Roger's acquittal.

"There was evidence that Roberts obstructed and assaulted officers,'' Mr.

Calhoun claimed. "There was no evidence that he was doing any of this to prevent Roger's `unlawful' arrest. Where the Magistrate came up with the notion that he was doing it to prevent the arrest, I don't know.

"There was no evidence for the Magistrate to make that finding,'' he said.

"And the Magistrate never addressed her mind to if the other officers were acting properly.'' He added: "It is going to be an unfortunate state of affairs in this country if anyone who disagrees with an arrest can assault officers.'' But defence lawyer Sen. Lawrence Scott argued that the force used by Rogers was "proportionate'' to the force exhibited by the officers.

"The use of excessive force seemed to be the order of the day that night,'' he said. "It was something that should not have happened. Clearer heads should have prevailed that night.

Mr. Scott argued that Ms Simmons' decision was based on the evidence of Sgt.

Alderson.

"She didn't believe him,'' he said. "She saw his demeanour and decided then if he was telling the truth or not. She had difficulty in the credibility of Alderson.'' He added: "An officer must consider relevant things when executing his powers under the Misuse of Drugs Act. The Magistrate asked how Alderson formulated his opinion.'' Mr. Scott claimed that his clients may have become hyper or excited as a result of the way Sgt. Alderson treated them. He also told Mr. Justice Ground that if the catalyst for the actions was unlawful, then no assaults were committed -- the decision reached by Ms Simmons.

And he argued that Rogers and Roberts were entitled to resist arrest.

"Police action in their dealings with the public ought to be tempered with the proper discretion,'' Mr. Scott said. "If the public are treated properly, the Police will be given respect.

Mr. Justice Ground will hand down his ruling on January 23.