After three trials, a man found guilty of importing $337,000 worth of heroin in his underpants is appealing his conviction again.

This time coverage of the case by The Royal Gazette is being cited as one of the grounds for the appeal.

Floyd McCoy Hayward, 47, of Friswell's Hill, Pembroke, was found guilty of the charge last October by a nine woman, three man jury. An initial guilty verdict was overturned on appeal and the second trial resulted in a hung jury.

Defence counsel Elizabeth Christopher argued that two articles appearing when the October trial opened amounted to adverse pretrial publicity which prejudiced the minds of the jury.

Hayward has maintained his innocence of the charge since being arrested in April 1999. In October the jury heard that he had passed out some four hours into a British Airways flight from London to Bermuda. Dr. Claire Holt - a passenger on the flight - testified that she noticed a single needle mark on his arm, indicating he had had an overdose of drugs. She later found heroin stashed in his underpants.

A urine test later registered positive for heroin in his system.

The defence's contention was that someone on the plane must have injected him with the heroin and stuffed the drug on him when he passed out.

Ms Christopher homed in on this newspaper's report that Hayward had pleaded not guilty to importing the drug "even after the package of drugs were pulled from his pants after he had passed out on a British Airways flight".

"What I'm complaining about is the prejudicial aspect of that particular clause `even though'," Ms Christopher said.

She added that references to the fact that Hayward had been previously convicted were also prejudicial.

"I made it clear to the jury that there had been previous trials... It is my submission that it takes it a great deal further when newspaper reports refer to previous convictions in respect to this matter," Ms Christopher said.

Appeals court president Sir James Astwood interjected to say that "everybody conducts their affairs under the scrutiny of the public eye" and that listed several other media.

Ms Christopher responded by saying Bermuda only has one daily newspaper which everybody reads.

"Everybody gets the newspaper on their desks," she said.

The duration of the trial - five days - was not enough "to dilute the prejudice created by the articles."

Prosecutor Anthony Blackman argued that the reports included information that had already been in the public domain.

"These articles were reciting facts," he said only to be reminded by appeals court president that a phrase like "even though" is actually commentary.

"The fact that he was previously convicted but acquitted on appeal, combined with the fact that there was a hung jury - normally comments like that make the prosecution's case more difficult," Mr.. Blackman continued. "It was not an open and shut case."

Ms Christopher also argued that the Supreme Court had no jurisdiction to hear the case and that the trial judge Assistant Justice Charles-Etta Simmons should have told the jury of the possibility that Hayward did not bring the drugs onto the plane.

"The drugs could have been brought onto the plane by someone else and without his knowledge secreted on his body."

She also argued there was no evidence Hayward was in possession of the drugs when the plane entered Bermuda and so could not be found guilty of importation of the drugs.

Mr. Blackman responded by saying that the drugs were removed from him during the flight due to special circumstances and the court had been satisfied that the importation was a "continuous act that culminated in Bermuda."

Ms Christopher also accused Mr. Blackman of using unfair tactics when he asked Hayward whether he used drugs, by prefacing the question with "I believe I know the answer". Mr. Blackman denied he used those words.

He later said: "I could have asked it but I'm not sure."

Ms Christopher also argued that evidence of her clients drug use should not have been admitted as evidence in the trial because it was irrelevant to the question of whether he was guilty of importation.

She added that the multiple trials had worked against her client with at least one prosecution witness "refining her evidence" while other witnesses lost their memory. And she said it was unfair for Hayward to be tried more than once by the same judge. The "cumulative effect" was that the trial was prejudiced against her client, she said.

"The case against the applicant was a strong case built on the pillar of direct and circumstantial evidence and it was a proper direction in that regard," said Mr. Blackman.