A second retrial has been ordered for a Dutchman accused of importing more than $200,000 of cocaine into Bermuda.

Yesterday the Court of Appeal ruled that Assistant Justice Archibald had erred in the January 2003 trial of Eddy Frankyln Filiciana 44, who was jailed for ten years after a split jury found him guilty on two counts of importation and possession with intent to supply.

Filiciana was arrested as he tried to enter Bermuda from the Netherlands in December 2001. He was subsequently charged with importation and possession with intent to supply 814.6 grams of cocaine found inside his stomach.

Filiciana claimed he believed the 90 pellets he swallowed in the Netherlands before coming to Bermuda contained money, not cocaine.

He was first tried in 2002 but the jury could not reach a verdict and a retrial was ordered which concluded in January.

However the court of appeal found Mr. Warner erred by allowing the prosecution to cross examine Filiciana on a statement he gave to Police without first deciding whether it had been freely and voluntarily given.

In the earlier trial the judge had ruled it inadmissible but in the second trial Mr. Warner allowed parts of that statement to be read to Filiciana by the prosecutor. Defence counsel had objected saying very prejudicial statements had been read to the jury.

In the judgement the Appeal Court said: ?The judge should not have allowed the questions to be put to the appellant but once put, and the answers given, he should have given the jury a clear direction that if they found any inconsistencies in the evidence they could not use this as a reason to convict him. They should have been reminded of the burden of proof.

During the trial Filiciana said he never suspected he was carrying drugs out of Holland because most drugs come into Holland, from the Caribbean, where they fetch high prices.

Mr. Warner said: ?He seems like he knows a lot of drug information to me. Anyhow, he ? don?t let him give gratuitous information, all right.?

The Appeal Court described these remarks as ?unfortunate?.

The judgement said: ?The defence was a lack of knowledge that cocaine was in the pellets. The judge having passed the remark should have immediately said something to neutralise its effects on the jury. He did not do so. His remark must have had a prejudicial effect on the minds of the jury.?

In summary the judgement said: ?The cumulative effect of the errors, rulings, remarks and comments made by the judge in the course of the trial was to cause a miscarriage of justice and we set aside the verdicts.

They remitted the case back to Supreme Court to tried by a different judge. Filiciana was remanded in custody.