The family of murdered Canadian teen Rebecca Middleton are assessing their options after the Director of Public Prosecutions ruled Justis Smith and Kirk Mundy could not be retried on sexual assault charges.

Dave Middleton, father of the Rebecca who was tortured, raped and murdered on Ferry Reach beach in 1996, said hiring British Prime Minister Tony Blair's wife, Cherie Booth, to run a private prosecution still remained on the cards.

DPP Vinette Graham-Allen's review, released yesterday, held that Smith and Mundy could not be charged with the offence of sexual assault as it broke the well-established law that a man should not be twice punished for an offence arising out of the same facts.

To run sequential trials for offences on an ascending scale of gravity could be deemed an abuse of the process of the court, she argued.

She said the constitution guaranteed an individual cannot be re-tried for the same offence or any other offence for which he could have been convicted at the earlier trial.

Asked for his reaction Dave Middleton said: “I am disappointed. It was the road we wanted to go.

“It is not the result we were hoping for. We are grateful the DPP did the report and did the review.

“We are going to have to consult with our legal people to see what next steps can be taken.”

Asked if hiring English QC Cherie Booth was still an option he said: “For sure.”

But he stopped short of saying that was the most likely move.

Mr. Middleton said he understood permission was needed from the DPP in order for a private prosecution to take place.

He said: “We have not made that request yet.”

Asked if a private prosecution would fail for the same reason that the DPP said a public prosecution was a non-starter Mr. Middleton said: “One thing about lawyers is you get lots of differences of opinion.

“At the end of the day we are trying to see if there are some other steps that can be taken.”

Mundy was sentenced after pleading guilty to being an accessory after the fact to murder in 1996.

In January 1998 he was charged with Rebecca's murder but the Court of Appeal ruled the case could not proceed.

Smith was acquitted of a murder charge in November 1998 after Supreme Court judge Vincent Meerabux ruled there as no case to answer.

Looking at those cases the DPP said the same evidence which formed the basis for charging Mundy in 1996 would be the same evidence for launching a trial on sexual assault. “No new evidence has surfaced since his conviction, to justify the preferment of fresh charges.”

New charges would amount to a breach of Mundy's constitutional rights and an abuse of the courts and powers of the DPP, said Ms Graham-Allen.

She argued the same protection of the Constitution applied to Smith who had been acquitted by the Supreme Court. That decision was upheld after being reviewed by higher courts. In the review, which looked at the record of all the evidence provided plus the legal judgements on the case, Ms Graham-Allen (pictured) said Rebecca had been sexually assaulted and there was evidence that which cast doubt on Mundy's claim of consensual sex. But that should have been put before a jury as it had been available to the Crown prior to Mundy's committal to trial in November 1996.

Although there was no direct evidence to suggest Smith had sexually assaulted the teen, it had still been open for the Crown to prosecute under that offence as he could have been deemed to have taken part by aiding the perpetrator.

She added: “Further forensic reports subsequently received post-committal confirms and supports the contention that the issue of consent raised by Mr. Mundy in his admission to the Police could have been refuted.”

If the DPP did launch a new prosecution the pair had ripe grounds to claim an abuse of the process on grounds of delay and pre-trial publicity, said Ms Graham-Allen.

However Mr. Middleton said the issue of pre-trial publicity had been even more relevant at the initial trials but had not stopped them going ahead. Rebecca was 17 at the time of her death.