8 — Wednesday, July 7, 1999 — ASSaiili Case tt Katharine Hamer Contributing Writer BROTHERS Frank and Perry Evanshen, convicted in March 1998 of sexual assault, have been granted a retrial by the B.C. Court of Appeals. The Hon. Mr. Justice Hollinrake made the decision to allow the appeal on the grounds that the brothers “did not receive a fair trial,” and were therefore victins of a miscarriage of justice. Frank Evanshen, a West Vancouver resident, was con- victed in March last year of sexual assault and obstruc- tion of justice. His brother — Perry Evanshen, of Claresholm, Alberta, was convicted of sexual assault. The pair filed appeals of their convictions shortly after being found guilty of the crimes. They were sentenced by Supreme Court Justice Janet Sinclair Prowse to jail time of four and three years respec- tively. A third brother, Frederick “Evansken, pleaded guilty co sexual assault in a separate hearing in February 1998. He was fined $1,000. The Evanshens were charged with the ongoing sexual assault of a young girl (now aged 22), beeen 1987 and 199}. In a heated trial, Frank Evanshen’s defence lawyer Len Doust accused the girl of fabricating her accusations because she “hated all the Evanshens.” The girl's mother was involved with Fred Evanshen at the time of the alleged assaults. j ovr elreody low prices on in-stock Tis & VCRs Sood sellin, Brond names: Samsung, § Hitecti, Ponesonic, Sears, W(@, Sanyo, Proscon, Platform Sneakers Saree! yes to dese rom, Reg. 2999-49. North Shore News The girl testified in court that Frank Evanshen forced her to perform oral sex twice a day and that in 1980, she had “painful, non-consensuai sexual intercourse” with Perry Evanshen. In a judgement released fast week, Hollinrake based his decision to allow a retrial on Prowse’s assessment of Frank Evanshen’s credibility in the original trial. “The trial judge reached her conclusions on credibility on her review of the content of Frank's evidence and not on his behaviour as a wit- ness,” said Hollinrake. Hollinrake felt that Prowse had found against Frank Evanshen on the basi of credibility because his wife, Molly Evanshen, had given evidence to the court that the complainant knew of her husband's circumcision because ofa family discussion on the subject. Frank Evanshen did not give the same evidence in court. “That can only mean,” said Hollinrake, “that the judge rejected Frank's denial of any sexual assault: using evidence, in her mind, that Frank did not give. “That in turn led to her conclusion that the com- plainant could only know of the fact of Frank not being circumcised because, as she testified, she had performed oral sex on him.” Hollinrake went on to say that he felt the judge was therefore “mistaken as to the substance of material parts of the evidence and that error played an essential part in the reasoning process resulting in the conviction. {In my opinion, Frank has demonstrated that this con- viction depends on a misap- | Additional our already ow prices on instock fj Leather Sofas irs b White kg see readers dees co color ond ad yoke. 100% ctton. Bb dsvted snes Hos 4099, Thea 2499. PN Ai a prehension of the evidence such that it follows he has not received a fair trial and is the victim of a miscarriage of justice. “There must be a new trial...even if it could be said the evidence adduced at trial is capable of supporting 2 THE following is a list of recent West Vancouver Police reports: May 21 1. 1700-bik. Esquimalt Avenue Theft from auto. Four our ohvady low prices on Sheet Sets || Flat of Fitted af. | & Pillowcases || fexdudes fed InABag) ; Girls’ Denim Shorts Fe pit. 100 cu. Ss 16 Wa Bal conviction.” Hollinrake said he found Frank’s conviction for obstruction of justice “trou- hlesome” for the same rea- son. He also disagreed with the fact that there were “inconsistencies” in Perry vehicles gone — through. Vehicles parked in under- ground parkade. Stolen: Gortex jacket, coins, May 22 2. 200-bik. Whonoak Road Stolen auto. Vehicle recov- ered at foot of Mathias. Ignition forced. Rear wheel damaged. Stolen: 1985 grey Ford F10. 3. 1400-hik. Esquimalt Avenue Theft trom auto. Door lock pried. Entry gained to trunk. Srolen: binoculars, 4. Park Royal North Theft from auto. Entry gained to locked canopy. No damage. Stolen: plastic tool box containing various tools. Evanshen’s original testimo- ny. “Je would appear,” said Hollinrake, “that the judge has found against Perry on the credibility issue.” The Evanshen brothers’ defence counsel queried the credibility of the com- 5. 3600-dlk. Westmount Theft. Four males got out of vehicle and grabbed a dis- play umbrella, Males fled in vehicle. Suspect vehicle: 1986 grey Mazda 626. Stolen: umbrella. 6. Park Royal South Shoplifting. Stolen/recov- ered: clothing. 7. 3700-bIk. Avenue Break and enter. Stolen from locked garage a 21- speed Rocky Mountain bike. Bayridge 8. 6100-bik. St. Georges Crescent Break and center. Door frame pried. Entry gained into locked garage. Stolen: yard- power tools. ALL NEW 1999 Grand Vitara | Anke I 9V4 power, 24-mive, quacl com. *Power mirrors Drive select Axd «Pawerlocks Mutti-point eloutronic {uel injection «Dual cir bogs Tilt steering *Oxechead map lights Adjustable front head restraints #Corgo area power outlet #16° all-season rodial tires *2a-houe roadside assistonce #City12.3 L/100km (23mpght © Highway 9.7/100kmn (29 mpgit *299 imo. o:°24,390 1695 Marine Dr. North Vancouver 983-2088 $ suzuxi | f eacca onan, 12 S16252 wh $200 down» mes, nc All you have to do is drive one. § be heard again in court Plainant in their reasons for an appeal application. That suggestion rejected by Holtinrake. No date has yet been set for the rerrial. The B.C. Supreme Court retrial will include all charges against the brothers. was 9. Park Royal South - Theft. Internal theft. Stolen: six bottles of perfume. 10. 100-bik. 21st Street Theft. Boat parked in unsecured underground park- ing lot. Tool box removed from boat. No damage to boat. Stolen: tool box con- taining an assortment of sock- et wrenches and screwdrivers. 11. 1200-blk. Marine Drive Theft. Suspect ran into store and grabbed jar of golf tees. May 23 12. Park Royal South Theft. One suspect entered store and distracted clerk while second suspect entered back room and removed two purses. Stolen; wallet, day planner, ID, credit cards and cash. 13. Park Royal South Shoplifting. Stolen: bottle of wine. 14, Park Royal South Attempted break and enter. Glass door pried. No entry gained. . 15. 00-bik. Bonnymvir Drive Break and enter. Front door kicked in. Alarm panel _ and speaker damaged. Closet in master bedroom ransacked. Stolen: nil. 16. 1900-bik. Bellevue - Avenue Break and enter. Lock box opened and keys to apartment building removed. Keys used to enter building and storage locker area. Three lockers bro- ken into. Stolen: unknown. May 24 . 17, 2100-bik. Bellevue Avenue... Theft — ‘from auto. Unknown how entry. gained. Stolen: bank . book, address bsok, backpack, camera, elec- tronic dictionary, makeup.