A trial judge was wrong not to allow a jury decide if Justis Smith was guilty of the murder of Rebecca Middleton, the Court of Appeal heard yesterday.

Puisne Judge Vincent Meerabux had erred by ignoring crucial evidence in making his decision to dismiss the proceedings against Smith, the Crown argued.

During the first day of the Crown's appeal against the decision to acquit 20-year-old Smith last December, acting Attorney General William Pearce said there was enough circumstantial evidence to allow a jury to decide.

Watching proceedings are the victim's father, David Middleton, Rick Meens, who hosted Miss Middleton, and Smith's father, Richard Smith.

He said Mr. Meerabux had not based his decision on the totality of evidence, which showed that Smith had been at Ferry Reach with Kirk Mundy when Miss Middleton was raped, abused and killed.

He had only considered one strand of testimony, that of a security guard who saw two people on a bike leaving Ferry Reach, when he ruled there was no case to answer on the basis of lack of evidence.

And he said the second part of the ruling, that there had been an abuse of process, was also wrong.

"He failed to look at all the circumstantial evidence that showed that Justis Smith was at the scene and had the sole opportunity to commit murder,'' said Mr. Pearce.

He said other expert witnesses showed there had to be two people involved in the brutal stabbing of the teenager and that the knife used in the murder had come from Smith's home.

And he said Smith himself admitted being with Kirk Mundy -- currently serving five years after admitting being an accessory after the fact -- on the night the Canadian teenager died.

Witnesses also recalled seeing Smith on the bike with Mundy and Rebecca Middleton before the murder, and seeing two men on a bike later that night, he said.

"All the evidence puts Smith at the scene. There is no suggestion that the two individuals were anyone other than Justis Smith and Kirk Mundy.

"You are entitled to look at all the evidence that places Smith at the scene.

"If you are satisfied on the basis of that, together with other evidence, that two or more people acted together and taking all the evidence together, Mr. Meerabux's finding of no evidence was plainly wrong -- the court was entitled to hear it.

"If you conclude that the trial judge was plainly wrong, you are entitled to interfere.'' Mr. Pearce also argued that Mr. Meerabux misdirected in law by stating that the Crown was required to show who actually committed the fatal stab wounds.

"As long as two people were involved, we don't have to show who did the actual act of stabbing.'' And it was entirely irrelevant what Mundy had pleaded guilty to, he said -- not an important factor as claimed by the judge.

He added the manner of stab wounds proved there was premeditation. But in any event, the judge could have directed the jury towards a simple murder or manslaughter verdict.

Facing Mr. Pearce and Crown counsel Peter Eccles, are London-based Queen's Counsel John Perry and Elizabeth Christopher.

Mr. Eccles said the abuse of process argument was that the Crown departed from evidence produced at the committal proceedings to support its case.

But he said the preliminary prosecution did not have to produce all the evidence intended for use in the trial.

"John Perry argued that the Crown differed from its theory in the preliminary inquiry, but no theory was offered then,'' said Mr. Eccles. "It is exactly the same offence, same day, same offender and same victim.'' The appeal continues today.

Appeal: William Pearce Graphic file name: WIPEARC Rebecca Middleton Graphic file name: REBMID