Middleton will learn on Friday if he has to face another trial.

A three-man Court of Appeal will decide whether or not to allow a Crown plea to overturn last year's Supreme Court decision to call a halt to the case against Justis Smith on the grounds of an abuse of process and insufficient evidence.

Court of Appeal president Sir James Astwood told counsel for both sides after five days of argument: "We will give our decision on Friday at 10 a.m.'' Earlier, English QC John Perry summed up the case for Smith -- who was not in court -- and accused the prosecution of tearing up the rule book in a bid to convict Smith of premeditated murder, a hanging offence in Bermuda.

Mr. Perry said that the decision by the Court of Appeal not to allow the Crown to recharge Kirk Mundy with murder was a major problem for the prosecution in their handling of the case against Smith.

The attempt to try together both Smith and Mundy, who was jailed for five years after admitting being an accessory after the fact in the slaying of Ms Middleton, was knocked up to the Privy Council in London -- Bermuda's final appeal court.

Then-Attorney General Elliott Mottley won a ruling in January last year from Supreme Court that the Crown could bring Mundy to trial on a murder charge -- despite the earlier plea.

But that ruling was later overturned by the Court of Appeal, a decision supported by the Privy Council.

Mr. Perry said: "Once the prosecution had abandoned, as they must have in their own minds, the contention as set out in the indictment at committal proceedings and were contending two people were involved, they should have given the respondent notice of the case he was expected to meet.'' He added: "This two man theory could not be maintained in the light of the Court of Appeal ruling.

"If the Crown was right in what they did, it means this -- it means that the Attorney General's department could completely set at naught the ruling of this court in the Mundy's case.

"They couldn't achieve it formally, but they could achieve it informally in a circuitous way -- that cannot be right.'' And he claimed Mundy was not called as a witness at Smith's trial for premeditated murder to assist in "fusing'' the committal indictment with evidence "subsequently obtained'' and which pointed to two people being involved in the 1996 murder.

Mr. Perry insisted the reason Smith was eventually not tried on the original indictment at the committal proceedings -- as the sole and premediated alleged killer -- was "plain.'' Mr. Perry claimed: "He wasn't tried on the indictment because the Crown came to the conclusion Mundy couldn't be relied on. If that was the case, Smith would have had to have had the benefit of an acquittal on the matter he was indicted on.'' Mr. Perry added that the Crown also failed to amend or add a count to the original indictment facing Smith.

He said: "The evidence which could justify the indictment or the substituted count couldn't be culled from the original indictment.'' And he added: "There was no evidence to support the argument that Smith killed Miss Middleton or that he had a premeditated intention to kill.

"There was no forensic evidence, no confession connects him -- nothing.'' And he added there was nothing to support a charge of simple murder -- a non-capital offence -- either.

Justis Smith Graphic file name: JUSTIM