Lawyer Mark Pettingill yesterday described the Rebecca Middleton murder case as a "fiasco'' and said he was amazed Police and the prosecution did not examine forensic evidence before bringing charges.

Mr. Pettingill, who represented murder suspect Kirk Mundy, said "you could have knocked me down with a feather'' when the Crown charged his client with being an accessory after the killing.

He admitted yesterday his client might have been charged with an offence other than accessory after the fact, if the prosecution had done forensic tests before charging.

Director of Public Prosecutions Khamisi Tokunbo, who was then a Crown counsel working on the case, has told the Commission of Inquiry into Serious Crimes that Mundy's statement blaming Justis Smith for the murder was the only evidence against Smith, who was charged with Ms Middleton's killing.

Mundy, who was jailed for five years for being accessory after the fact, was charged with the lesser offence, on July 13 1996 -- ten days after the 17-year-old Canadian's body was found at Ferry Reach.

Mr. Pettingill told the inquiry yesterday that there was intense pressure on the authorities to get results because the case was generating negative publicity around the world.

Mundy was charged a year before proper forensic tests were done which showed two people were involved in the killing -- one to hold Ms Middleton down and the other to stab her.

The Crown tried to rescue the botched case later by charging Mundy with murder but this was thrown out of court because he had already been charged with accessory after the fact.

Smith walked free from the murder charge after Puisne Judge Vincent Meerabux dismissed the case for abuse of process and lack of evidence -- a decision described by the Privy Council in London as "astonishing''.

Mr. Pettingill claimed a deal had been struck for his client because he had told Police Mundy would testify against Smith.

He said when Mundy was charged with accessory after the fact on July 13 1996, Inspector Stuart Crockwell came up to him and said "you got what you wanted''.

Commission chairman Justice Stanley Moore put it to Mr. Pettingill that all that was available to the Police and Attorney General's Chambers at the time was Mundy's statement.

Lawyer describes case as a `fiasco' Mr. Justice Moore said: "On your presentation what would have been available to the Police would be his (Mundy's) written statement, which according to your assessment disclosed a case of his being an accessory after the fact.

"Inspectors (Victor) Richmond and Crockwell (then) went to some place. The following morning Mundy is charged with being an accessory after the fact to murder, the very offence disclosed on that statement.

"In those circumstances, the suggestion is: was there any need for a deal? In other words, Mundy got no more than was indicated in his statement.'' Mr. Pettingill replied: "There was a lot more available to the Police than Mundy's statement and available to the Crown other than Mr. Mundy's statement.

"So in those terms it was important there was a deal because in my mind there was other immediate evidence out there available in terms of forensics and photographs (of the crime scene and the body).'' Commission member Shirley Simmons asked: "Could Mundy have been charged with any other offence based on these statements?'' Mr. Pettingill replied: "On these statements, no. If they had the forensics it might have been different.'' Mr. Tokunbo has testified that there was no immunity from prosecution for Mundy and that to his knowledge there was no communication between Mundy's legal team and himself or the then Attorney General (AG) Elliott Mottley about any possible deal. But Mr. Pettingill said that he spoke to Insp Victor Richmond outside the serious incident room on July 12 -- the day before Mundy was charged -- and told them Mundy would testify against Smith. He said he spoke to the officer "before he went to discuss the matter with the AG.

That's how I know he was going there''.

He also testified that he told Chief Inspector Carlton Adams and an Inspector Farley that Mundy was going to testify.

"We were all aware that that information they were gathering would be passed to the AG. That's the way it goes.'' Mr. Pettingill agreed that there was no written agreement with the AG's chambers, but said this was not unusual.

When asked if any Police officer had told him his proposal of a deal was acceptable to the AG's chambers, Mr. Pettingill replied: "No. Not in those terms.

"Insp Crockwell, when handing me the pink form with the information on it on July 13 (when Mundy was charged) said `you got what you wanted'.

"Everything I say is a matter of record at the Supreme Court of Bermuda and it is uncontradicted.'' In addition, Mr. Tokunbo had shown Mr. Pettingill a copy of the facts which were to be read to the court which acknowledged Mundy was providing evidence against Smith.

Earlier, Mr. Pettingill stated that the Middleton case, "because of a number of factors became a fiasco.

"My experience with Police officers generally, particularly the major incident room, is that it is a particularly professional operation that has a high degree of success in solving crime and gathering evidence.

"In the Middleton matter, what I would regard as the usual players didn't seem to be heading up the investigation. You could have knocked me over with a feather when the charge of accessory after the fact was presented to me.

"It didn't strike me that the usual players were involved. I would have anticipated that certain forensic evidence that was clearly available on July 3 and the evidence available before the charge on July 13 was there to be obtained and reviewed.

"This was a case that demanded a forensic expert. That did not occur in that time frame. That occurred in this case a year after the fact.

"That area of expertise is something that is required in our jurisdiction. I am very pleased that now we have a forensic expert here. There was no such person able to attend the scene in the Middleton case.

"This was a case where they could have looked at the photographs and forensic evidence on day one and formed an opinion based on that evidence. I would have expected that to have happened before anyone was charged.'' When asked by Mr. Justice Moore if the Scenes of Crime team should have "recognised their own limitations'' and brought in outside scientific help for the Middleton case, Mr Pettingill replied: "Unequivocally and absolutely it should have been done.

"More to the point, it had been done in the past. It came as a surprise to me that it was not in this case. The photos of the scene and of the autopsy are very telling to a forensic expert.'' Mr. Pettingill said he was a layman with some experience of such photos, but to an expert they would be "glaringly apparent, such as the expert when they were presented to him a year later.'' He agreed with barrister Richard Hector, who is marshalling the evidence, that the prosecution could have changed their approach before October 16 1996, when Mundy appeared and was sentenced. Mr. Hector said in August new evidence appeared that "changed the picture, yet in October they proceeded to deal with the matter in the way you proposed.'' Mr. Pettingill said: "That's correct. They were anticipating a position that did not transpire.'' He explained that DNA tests showed Mundy's semen alone inside Ms Middleton's body. Mundy maintained there had been consensual sex and that a condom may have burst.

Mr. Pettingill agreed that the only person who could offer immunity from prosecution was the Attorney General or now the Director of Public Prosecutions.

Mr. Pettingill promised to provide the Commission with examples where people had been given immunity from prosecution where there was no written agreement.

Mr. Justice Moore said: "One thing we are looking at is the whole question of immunity and to examine what would be an appropriate way in which the question of immunity needs to be dealt with. If we discover practices we feel are not correct practices we will need to make recommendations about what practices ought to be followed.'' Mark Pettingill