Lawyers are pushing for a ruling on whether defendants can argue about the constitution at their trial if they feel they are being denied the right to a fair hearing, The Royal Gazette has learned.

It follows a decision by a Puisne Judge yesterday that two Hamilton Parish residents accused of importing $500,000 of heroin onto the Island should be freed because they have no case to answer.

Tyrone Calvin Simmons, 27, and a tearful Shaddonna Kelly Trott, 20, hugged relatives and their lawyers after Puisne Judge Charles-Etta Simmons ordered the jury to find them not guilty.

The pair were accused of importing the heroin in oversized greeting cards using the Hamilton Parish Post Office in March 1998 and of possessing the drugs with intent to supply.

Simmons was also charged with knowingly handling the drugs.

The drugs were contained in three envelopes -- two of which were addressed to a Dwon Trott, and the other to Simmons -- which were posted from separate addresses in Lagos, Nigeria.

Trott's lawyer Delroy Duncan and Simmons' lawyer Victoria Pearman argued in the absence of the jury that the Misuse of Drugs Act reversed the assumption in the constitution that a defendant is presumed innocent.

They claimed the burden of proof, under the Act, lay with the defendant to prove his or her innocence.

Mrs. Justice Simmons would not entertain arguments about the Constitution at a trial, but she did rule that postal notices -- such as the one sent to Trott -- did not prove the recipient had knowledge of the contents of the package.

Mr. Duncan and Ms Pearman have filed a summons requesting a hearing at which Chief Justice Austin Ward will be asked to rule whether questions about the Constitution -- and how it relates to the right to a fair hearing -- can be argued at a trial.

Following days of legal argument, Mrs. Justice Simmons yesterday ordered the ten-woman and two-man jury to find the pair not guilty on all charges.

She told the jury: "The defence counsel have the right to submit no case submissions, which they have, and I have made a ruling that I accept that.

"I am now directing you to discharge both defendants from the charges in this case.'' Drugs act could face challenge Afterwards, Mr. Duncan told The Royal Gazette : "It was an important case because we tried to argue that the defendant is entitled to a presumption of innocence and that the Misuse of Drugs Act reverses that burden of proof onto the defendant to prove his innocence.

"The judge did not permit argument under section 62 of the Bermuda Constitution Order, but she did permit argument under section six (2) of the European Convention on Human Rights, which is incorporated into Bermuda law under the Human Rights Act.

"On the facts of this case, the judge was not prepared to consider whether the Misuse of Drugs Act was in contravention of the European Convention.

"The important point that the judge did make was that a postal notice, which is invariably delivered to the homes of Bermudians, is not a document of title under the Misuse of Drugs Act.

"What that means is the possession of a postal notice does not mean that you are assumed to know the contents of the package. That's an important point in law because the Police have used postal notices as demonstrating knowledge of the contents of a package.

"The case against my client was that a postal notice went to her home and she was not there and someone else took it to the Post Office to redeem the package.'' He said the summons will be for the Chief Justice to determine if Constitutional issues can be discussed in criminal trials if they have a bearing on a defendant's right to a fair trial.

The summons asks for "A Declaration as to whether a defendant in a criminal trial whose liberty is at stake has the right to argue the validity and effect of a Bermudian statutory provision if that statute prima facie contravenes his constitutional right to a fair trial and the presumption of innocence.''