jeopardy'' if Bermuda's final court ruled in favour of a re-trial, it was claimed.

Defence lawyer John Perry QC said that allowing the Bermuda Court of Appeal's ruling to stand would have the effect of making Smith face a charge of murder twice.

He added that whether or not Puisne Judge Vincent Meerabux's decision -- which led to the Crown's successful appeal -- to acquit Smith of the murder of Canadian teenager Rebecca Middleton was wrong, it was not appealable.

Mr. Perry was speaking during the first day of the hearing before the Privy Council in London.

He is appearing with local lawyer Elizabeth Christopher as they argue that the Court of Appeal was wrong to overturn Mr. Justice Meerabux's decision and order Smith, 20, to face another trial.

Miss Middleton's father, David, is the only family member in England watching the proceedings, which are expected to conclude today.

"The effect of allowing that appeal is really to invoke double jeopardy,'' said defence lawyer Mr. Perry, referring to the principle that a person, once acquitted, should not be tried again for the same crime.

The basis of the defence team's argument is that Mr. Justice Meerabux's ruling cannot be appealed under Bermudian law.

"It may turn out that he's wrong,'' Mr. Perry admitted. "But it's not appealable.'' The Crown may only appeal on grounds of an error in law, he insisted. No appeal is allowed if a process is terminated by the judge on the grounds of abuse of process.

"Even if the judge's decision was hopelessly wrong, you say there is no right to appeal...and there is no remedy?'' asked Lord Steyn, chairman of the panel.

Mr. Perry insisted the decision was "unreviewable''.

Case at Privy Council Sir Godfrey LeQuesne, the lawyer acting for the Crown, countered that he believes Meerabux's ruling was an error in law and can be overturned.

"A conclusion reached by ignoring relevant information is, in my submission, an error in law,'' he said. "Likewise, a decision reached by reliance on irrelevant information is an error in law.'' One thing that wasn't heard within the imposing wood-panelled court chamber, however, was the name Rebecca Middleton.

The Belleville, Ontario teenager was found tortured, raped and stabbed to death at Ferry Reach on July 3, 1996.

But for the presence of her father, the victim's name would have been as remote from the hearing as the proceedings themselves were from the island country where she met her death while on holiday with a friend.

David Middleton seemed to take the omission of his daughter's name in stride, acknowledging that it is Bermuda law, not Smith, that is on trial before the Privy Council.

"When they speak of law and mixed fact and law, the fact seems to get lost in the whole thing,'' Middleton said during a break in the proceedings. "I guess the bottom line here is that there's nothing we can do to bring Becky back.

But maybe if we can get this straight it can improve the law of the land.'' Smith's first trial ended in controversy in December 1998 when the presiding judge dismissed the case for lack of evidence. Judge Vincent Meerabux also agreed with defence lawyers that Smith's prosecution had been an abuse of process.

The crux of that argument was that the Crown's case relied heavily on the testimony of Kirk Mundy, who pleaded guilty to being an accessory after the fact and was sentenced to five years in prison. The evidence against Smith was all circumstantial.

After Mundy struck his plea bargain, the Crown discovered through DNA evidence that he had been at the scene of the crime. It attempted to arraign him for murder as well, but those efforts failed. His credibility shattered, Mundy was not called as a witness during Smith's trial.

The Crown appealed Meerabux's decision to dismiss the case against Smith, saying the judge should have let the jury decide whether there was sufficient evidence to convict him. The appeal court agreed and ordered a retrial.

The Privy Council's decision will be final. There is no appeal.

If the ruling favours the Crown, Smith will stand trial again.

MURDER MUR