A jury will decide if Kirk Mundy will face a charge of murdering Canadian teenager Rebecca Middleton, his defence lawyer said yesterday.

The surprise tactic came from Mundy's lawyer Saul Froomkin, who asked for a rarely-used legal procedure to be brought into play.

Mr. Froomkin's move came after Chief Justice Austin Ward ruled that Mundy should face trial for the murder of Ms Middleton -- after he pleaded guilty to being an accessory after the fact.

Solicitor General William Pearce asked Mr. Justice Ward to set a trial date, arguing that a related Court of Appeal hearing would be resolved before the date came up.

But now a jury trial will be held to review new evidence brought by the Crown against Mundy and decide whether he should be tried for murder.

And Mundy, ordered to appear for mention after the regular arraignments session on April 1, was remanded in custody.

Lawyer Saul Froomkin, who represented Mundy at yesterday's hearing, stepped in when Mundy was asked to plead to the charge of murder after Mr. Justice Ward announced his decision.

Mr. Froomkin quoted a little-used section of the Island's Criminal Code which said his client "has already been tried and convicted of an offence committed, or alleged to be committed under such circumstances that he cannot, under the Act, be tried for the offence charged in the indictment''.

He was speaking after Mr. Justice Ward knocked back Mr. Froomkin's plea that the murder indictment should be dropped.

The indictment was brought by voluntary bill -- which means the case can bypass Magistrates' Court and go straight to Supreme Court.

Mr. Froomkin had argued that there was "no credible evidence'' to justify a fresh charge after a plea of guilty to the accessory charge was accepted by a court and Mundy was sentenced to five years in jail and that a new charge was "formally defective''.

The defence counsel, an ex-Attorney General, failed last month to prove "an abuse of process'' against Attorney General Elliott Mottley.

Mr. Froomkin argued then that Mundy had struck a deal with Police in return for giving evidence against Smith.

Mr. Justice Ground said he did not approve of the way the prosecution had conducted its investigation -- but ruled that did not amount to an abuse of process.

But Mr. Froomkin is also to challenge that decision in the current sitting of the three-judge Court of Appeal under Sir James Astwood at a hearing on March 23.

Mundy to face jury After yesterday's hearing, Mr. Froomkin added: "My client has certain pleas he can make and he has made them.'' He added: "I don't recall ever being taken here since I have been here -- 20 years. I don't know a case which has ever been conducted this way.

"The jury is going to have to consider all the evidence leading up to this murder charge and decide whether they think it's proper he should be tried for murder.'' Giving his judgment, Mr. Justice Ward told Supreme Court: "I have considered the criticism -- but I cannot support it.'' And he said Mr. Froomkin's attack on new evidence from pathologists -- which cannot be reported for legal reasons -- was something which should be decided by a jury in a murder trial.

Earlier in the hearing, Mr. Froomkin had claimed the Crown was relying on evidence from the fifth and final pathologist consulted, Dr. Michael Baden.

But he said that the evidence was not credible and Dr. Baden's opinion was "worthless''.

Mr. Justice Ward, however, said if any evidence was inadmissible, a trial judge would make a ruling on it.

He added: "In particular, I would add that the evidence of Dr. Baden is admissible.

"I cannot disregard it as being no evidence at all. Its sufficiency is a matter for the trial.'' And Mr. Justice Ward said: "Questions of credibility should be left for the trial judge. The motion to quash the indictment is refused.'' Jamaican-born Mundy, 22, was charged with Ms Middleton's murder in January -- 18 months after the 17-year-old was found stabbed to death on Ferry Reach, St.

George's.

Justis Smith, 18, was charged with murder within days of the July, 1996, killing and is still awaiting a trial date.