Director of Public Prosecutions Khamisi Tokunbo accepted yesterday that the Crown was relying on the "trust'' of Kirk Mundy to testify against Rebecca Middleton's suspected killer Justis Smith.

Mr. Tokunbo denied any deal had been struck with Mundy to allow him to plead guilty to being an accessory after the fact in return for testifying against Smith.

Mundy was jailed for five years, but the Crown later failed to rescue the botched case by having Mundy charged with murder.

Puisne Judge Vincent Meerabux threw the case out against Smith for abuse of process and lack of evidence, a decision described by the Privy Council as "astonishing''.

Mr. Tokunbo's evidence contradicts testimony given by former Attorney General Saul Froomkin who told the Commission of Inquiry into Serious Crime last week that a deal had been done.

Mr. Tokunbo, then a Crown counsel involved in the case, told the Commission yesterday that Mundy's cautioned statement was the only evidence against Smith.

Barrister Richard Hector, who is marshalling the evidence, asked him: "Was it not on the basis of Mundy's statement and in the hope that he would give evidence against Justis Smith that Justis Smith was charged.'' He replied: "Yes, eventually that would be it. We had the cautioned statement (from Mundy) in the hope that he would be a witness, that would be the only evidence we would have.'' Mr. Hector asked: "The Attorney General would put forward the charge and leave it to trust?'' Mr. Tokunbo replied: "That's the case with all witnesses. There is such a thing as coming up to proof whether it is a cautioned statement or a sworn statement in a chapel.'' When Mr. Hector asked if Mundy had been given immunity, Mr. Tokunbo replied: "Of course not. No document was written by Mundy's lawyer or anyone.

"There was nothing of the sort and no need for it, the issue never arose. I was surprised to hear Mr. Froomkin make reference to it.'' Mr. Tokunbo said he was acting senior counsel in July 1996 when Ms Middleton, 17, was raped and stabbed to death. Decisions were taken by the then- Attorney General Elliott Mottley.

When Mr. Hector asked if there was any deal to allow Mundy to plead guilty to accessory after the fact Mr. Tokunbo replied: "As far as I am aware, absolutely not. I never spoke to Mundy himself ever.

"I never spoke to his counsel in connection with that case ever. As far as I am aware, neither did (former Solicitor General) Barry Meade or Elliott Mottley. To conclude a deal would require a meeting of the minds.'' He said Police would brief him and Mr. Mottley, but although they had spoken to Smith and Mundy, they had denied it and Police had no evidence.

At some point Police informed them Mundy was prepared to talk. The meeting was attended by himself, Mr. Mottley, Chief Inspector Carlton Adams of CID, Acting Superintendant Vic Richardson, an officer Farley, and possibly others.

"There came a point when they produced a statement from Mundy where he was indicating for the first time how the offence was committed,'' he said.

"In it he pointed the finger at Justis Smith. He indicated that he had had consensual sex, that after he had done so he went to the waterside and washed off and when he returned he witnessed Smith viciously assaulting Miss Middleton.

"He pulled him off or called him off and they got together on a bike and rode off. When they were going over the bridge he felt the bike jostle as if Smith was disposing of something.

"He took Police to the spot and Police recovered a weapon. On the basis of that, the decision was taken that Smith should be charged with murder and Mundy with accessory after the fact. That was taken solely upon the statements that were brought to us.

"They were charged deliberately separately because we had in mind this was the only evidence we had, and in order to establish the guilt of Smith we would need the testimony of Mundy.'' Inquiry chairman Mr. Justice Stanley Moore said: "It has been suggested in many quarters that the decision to charge Mundy with accessory after the fact was as a result of a deal between some part of the prosecutorial apparatus and Mr. Mundy and/or his lawyers.'' Mr. Tokunbo replied: "I can state categorically and unequivocally that this is absolutely incorrect and untrue.'' When Mr. Hector asked if the arrangement for Mundy to testify was written down, Mr. Tokunbo replied: "There was no arrangement with Mundy and his lawyers.'' Mr. Hector said: "How was Mundy or his attorney to conduct themselves afterwards? Mundy could appear in court and could refuse to give evidence and that would be end of story. Was that how it was left?'' Mr. Tokunbo replied: "No, it was understood. Defence counsel are looking for the best result for their clients. Mundy himself was offering to testify. That came through the Police to us.

"It was in his interest to offer assistance for credit in sentencing. At some point it was indicated that he would convert what he had to say in a cautioned statement into a witness statement.

"It was on that basis that we were anticipating using him as a witness. We did receive a witness statement from him.'' Mr. Hector said: "If Mr. Mundy decided afterwards that he is not going to give evidence, you could have no complaint or do anything because you had no deal with him.'' Mr. Tokunbo said: "That is correct. We could subpoena him, but it would not be in his best interest when he had given a witness statement. The Chief Justice has a way of dealing with it.'' He said the Chief Justice gave him five years instead of three and he would have been reduced to three on appeal if he had agreed to testify.

Mr. Justice Moore asked who agreed if a sentence is reduced to reward a prisoner for testifying.

Mr. Tokunbo said it is for the judge, but the defence would weigh in mind that the Crown would ask the judge to recognise the co-operation.

He said arrangements of this sort would be made between the defence and the DPP or his agents, not the defence and the Police.

Mr. Hector asked: "Was it understood by the AG of the day that Mundy would give evidence for the prosecution in exchange for what would be done to him in charging him with being an accessory after the fact rather than jointly concerned with murder?'' Mr. Tokunbo said: "There was no understanding of that sort. He didn't know from the AG or myself what he would be charged with. He had no influence on what he would be charged with.'' MURDER MUR CRIME CRM