A Pembroke man convicted of importing $337,000 worth of heroin into Bermuda in his underpants has failed in his bid to have his conviction overturned in Appeals Court.

Floyd McCoy Hayward, 47, was convicted on October 22 of last year of importation of a controlled drug and sentenced to 11 years in prison the following day.

Hayward was found unconscious on a British Airways flight from London's Gatwick Airport to Bermuda in April 1999.

A doctor aboard the flight attended to Hayward, found a puncture mark on his left arm and diagnosed his condition as an opiate overdose. The doctor then found a package of drugs concealed in his underpants which, she turned over to flight crew and a Bermuda Government analyst later determined the package contained heroin.

In his October trial, Hayward claimed he had no knowledge of the drugs and had fallen asleep on the flight only to awaken in hospital in Bermuda.

His defence lawyer Elizabeth Christopher appealed his conviction on six grounds last month before the Appeals Court of Sir James Astwood, Justice Clough and Justice Nazareth. Among the grounds Ms Christopher pursued was that Bermuda never had effective jurisdiction over Hayward when he was discovered to be carrying the package of heroin while unconscious aboard an airplane.

However, in its judgment issued yesterday, the Appeals Court ruled that according to law, import means “to bring or cause to be brought into Bermuda by land, air or water” and that standard would apply to the unconscious Hayward while flying to the Island.

“According to the scenario of Miss Christopher, it would be the British Airways plane which brought the package of drugs into Bermuda, operating through the agency of their crew,” the judgment reads.

“But they were innocent carriers even though they may have suspected when they took possession of the package on the airplane that it contained drugs.

“They were placed in that position by the actions of the Appellant in bringing the drugs aboard the airplane.”

It continues: “We do not accept Miss Christopher's argument that there was a break in causation when the doctor removed the drug from the Appellant. We accept (Crown Prosecutor) Mr. (Anthony) Blackman's interpretation that if the jury found as a fact, which they must have done as they convicted, that the Appellant brought the drug on to the airplane, that the causation occurred when he did so, continued until the airplane landed in Bermuda, then the importation of the drug into Bermuda was complete and the jury could on the facts convict the Appellant for the importation of the drug.

“We therefore hold that the judge was correct in her ruling that there was no break in the causation and that on the facts before the court, the court had jurisdiction to try the case. We find no merit in this ground of appeal and we dismiss it.” Ms Christopher also took issue with coverage of Hayward's trial in The Royal Gazette suggesting that editorialising occurred which may have prejudiced the jury against her client.

But the Appeals Court also dismissed that argument. “The way Miss Christopher put her submission to us was that the fact of publicity with all the other factors of which she complained, would be sufficient to show that the Appellant's rights to a fair hearing by an independent and impartial jury removed from prejudice could not be achieved,” the judgment states.

“We do not accept this argument. The evidence, such as it is, was not sufficient to move the judge (Assistant Supreme Court Justice Charles-Etta Simmons) to stop the trial. We agree with her decision and this ground of appeal also fails.”

The Appeals Court also rejected the argument that, as McCoy was subjected to three trials, some of the witnesses could not recall the facts clearly. “The delay from April 9, 1999 (when Hayward was arrested) to October 22, 2001 (when he was convicted) is not of such duration that it would be unconscionable to expect the witness to remember the facts or that it was an abuse of process of the court to continue with the trial,” the judgment states.

Nor did Appeals Court agree there was cause for Ms Justice Simmons to excuse herself because she had presided over two of Hayward's previous three trials because in one trial the jury did not arrive at a verdict and in the other the trial was aborted shortly after the jury was sworn in.