Two men who walked free after a jury could not decide if they had plotted to kill five trial witnesses may yet face a re-trial despite a Supreme Court Judge ruling out the possibility earlier this year.

However a legal team featuring two overseas Queen?s Counsels is working to maintain Kenneth Sinclair Durrant and Javon Ernest Gardner?s freedom by arguing the Court of Appeal has no right to even hear an appeal for a re-trail.

There are two hurdles to be cleared before Mr. Durrant and Mr. Gardner can be brought to court to again face charges that they conspired to kill five witnesses by sending a letter with instructions and a sum of money to a third man in Jamaica.

Both men denied they had plotted to kill the witnesses and a Supreme Court jury last November was unable to reach a majority decision after hearing the evidence.

But the jury did clear the men of a sixth charge of trying to pervert the course of justice.

Immediately, the wheels were put in motion for a fresh trial on the five conspiracy to kill charges.

But in February this year Puisne Judge Carlisle Greaves, who presided over the original trial, ruled out a re-trial because in his view the charge of perverting the course of justice ? to which the men had been cleared by a jury ? ?encapsulated? the five individual conspiracy to kill charges.

Department of Public Prosecutions director Vinette Graham Allen, who is seeking a re-trial, believes Mr. Justice Greaves erred in law when he made that decision. In order to secure a re-trial the DPP must first prove the Court of Appeal has the legal right to pass judgment on whether Mr. Justice Greaves was correct to postpone possibly indefinitely any further court proceedings on the undecided charges.

Presenting the other side of the argument and making his first appearance in a Bermuda courtroom was Paul Mendelle QC who joined John Perry QC as counsel for Mr. Gardner and Mr. Durrant respectively.

Mr. Perry argued the Court of Appeal Judges did not have legal jurisdiction because Mr. Justice Greaves made his decision outside any trial on indictment proceedings.

In reply, Mrs. Graham Allen argued the Court of Appeal has the right to decide because the DPP was appealing against an order/decision of Mr. Justice Greaves saying he had come to a wrong decision on a point of law by deciding the jury?s failure to agree on a verdict for the five conspiracy to kill charges meant a not-guilty verdict.

And she said the indictment proceedings were active when Mr. Justice Greaves made his decision in February because he had ?consented? to a re-trial and the DPP had also presented a written letter in early December showing its intent to seek a re-trial. If the Court of Appeal Justices agree with Mrs Graham Allen they will then go on to hear arguments on whether the men should be re-tried.

Alternatively, they might agree with the counter-argument put forward by Mr. Perry and Mr. Mendelle that they have no legal right to pass judgment ? in which case only Mr. Justice Greaves himself could re-activate the case against the men.

Court of Appeal President Justice Edward Zacca and Justices Sir Anthony Evans and Sir Charles Mantell are expected to decide the matter this morning.