A man jailed for 18 years was yesterday released on bail after the Court of Criminal Appeal declared he would have to be retried because of irregularities, including the judge telling the jurors to go by their “gut-feeling”.

The judge should have told the jurors to act with caution when considering the evidence given by Mr Burgoa before relying on it to convict the accused

In October 2010, José Pena, 43, from Colombia was found guilty, by six votes to three, of conspiring to deal in drugs in 2006.

His co-accused, Domingo Navas, 35, of Panama, was acquitted.

The drugs had been smuggled in by another man, Enrique Martinez Burgoa, 45, from Mexico, who was jailed for 12 years and fined €24,000 in 2008.

Mr Burgoa was the star witness in the case and led to the arrest of Mr Navas and Mr Pena in a drug sting at a Sliema hotel a day after he was caught at the airport carrying 1.5 kilograms of cocaine in his hand luggage.

Defence lawyer Joseph Brincat filed an appeal arguing that the judge presiding over the trial had misdirected the jurors when he told them to go by their gut-feeling.

The judge did not explain the finer point of the law regarding the charge of conspiring to import drugs. Furthermore, the judge should have told the jurors to act with caution when considering the evidence given by Mr Burgoa before relying on it to convict the accused, Dr Brincat argued, among other legal points he raised.

Mr Justice Ray Pace, Mr Justice David Scicluna and Mr Justice Joseph Zammit Mckeon, sitting in the Court of Criminal Appeal, said they had no doubt that when the presiding judge told jurors to rely on their gut feeling it was a “misdirection”.

They further noted that jurors were given contrasting directions when, on one hand, they were told that the quality of the evidence had to be beyond reasonable doubt and, on the other, to go by their gut-feeling.

The judges found that the law governing the charge of conspiracy was also not properly explained to jurors.

They therefore ordered that Mr Pena should be tried again and that he be released on bail until then.