The Crown had no basis on which to appeal a decision to acquit the man accused of murdering Canadian teenager Rebecca Middleton.

But the trial judge in the murder case, which ended in controversy in December, should have stayed proceedings instead of acquitting 20-year-old Justis Smith.

That was the opinion of lawyer John Perry QC, who was arguing against the Crown's appeal against the decision of Puisne Judge Vincent Meerabux to rule there was no case to answer on the basis of lack of evidence and abuse of process.

He told the Court of Appeal that they could not interfere with the trial judge's decision because it had been his discretion.

"The finding that there has been an abuse of process is not appealable,'' he said. "The consequence of an abuse is a stay.'' But Court of Appeal Justice Clough countered that there was no order directing a stay on the record.

The Crown's appeal was based on the submission that there was enough evidence to allow a jury to decide on guilt and that they had not abused process in their actions between committal and trial.

It follows the collapse of the murder trial against Smith, who was accused of the premeditated murder of 17-year-old Rebecca Middleton in July 1996.

She was raped, abused and stabbed to death at Ferry Reach.

Proceedings yesterday were watched by Miss Middleton's father, David and Rick Meens, who hosted the teenager during her stay.

And for the second day, Magistrate Archibald Warner -- who was on the defence team during the 1998 trial -- looked on for a while from the public gallery.

At one stage he aided Mr. Perry and Elizabeth Christopher with their case.

Earlier, Crown Counsel Peter Eccles argued that Mr. Meerabux had erred in law by ruling that an abuse of process had occurred by the Crown failing to call Kirk Mundy.

Mundy was sentenced to five years imprisonment after pleading guilty to being an accessory after the fact.

Mr. Eccles said the Crown did not have to call Mundy and did not do so after it became apparent he had lied and his testimony was unreliable.

He said there was no unfairness by the Crown not calling him when there was other evidence that placed Smith at the murder scene.

And he added a defence claim that the Crown had changed its plan, to accommodate a two-man theory between committal and trial, was not true since there was no such theory at the committal.

"Proper criminal proceedings were heard, same charges, same offence, the only change the defence can point to is between committal and trial, when the Crown became aware Justis Smith was involved with assistance, no theory was advanced at committal.

"The defence knew there was a two-man theory and it was properly served.'' He said none of the proceedings were unfair to Smith in any of the Crown's actions.

Mr. Perry claimed the Crown had no right to appeal and the Court of Appeal had no jurisdiction to entertain the appeal.

He said there were three circumstances in which they could appeal but abuse of process was not one of them.

And he said that had his application to have a no case ruling failed, then he would have argued for a stay.

The appeal continues today.

Fighting appeal: Justis Smith Graphic file name: JSMITH MURDER MUR