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Henry appeal targets 1983 judge and prosecutor

Ivan Henry says he was convicted of rape, attempted rape and indecent assault 26 years ago based on a litany of errors by the trial judge and prosecutor.

In a notice of appeal in a highly unusual case, Mr. Henry alleges he was wrongfully convicted and says the prosecutor failed to tell him about forensic and police reports that indicated biological material from alleged victims could have been subjected to testing capable of excluding him.

The prosecutor did not show Mr. Henry, who represented himself, 27 oral and written statements made by alleged victims. The prosecutor also did not tell him about information relating to other police suspects. One of the suspects lived in the area where the crimes were committed, resembled Mr. Henry in appearance and was convicted of three sexual assaults in the same neighbourhood.

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Mr. Henry has been in custody since July 29, 1982, after his arrest for a string of 10 attacks against eight women in Vancouver. He was convicted and declared a dangerous offender in 1983. Appeals in 1984 and 1997 were unsuccessful.

However, the B.C. Court of Appeal in January decided to re-open the case, 10 months after a special prosecutor, Len Doust, concluded that Mr. Henry's conviction may have been a miscarriage of justice.

At his trial, Mr. Henry testified on his own behalf, denying he had committed the crimes. The prosecution relied mostly on eyewitness and voice-identification evidence from the victims.

In his notice of appeal, Mr. Henry states that his submissions will be entirely based on grounds involving questions of law. The alleged errors made by the trial judge included telling the jury that it could use Mr. Henry's refusal to co-operate in a police lineup as evidence of guilt and failing to instruct the jury to disregard evidence indicating he was a police suspect in similar sexual assaults in the same area and around the same time.

Mr. Henry has asked the appeal court to set aside his convictions and formally state that he has been acquitted on all counts. Alternately, he has asked for a new trial.

A date has not yet been set for the appeal. Mr. Henry is expected to apply for bail in a few weeks, his lawyer David Layton said yesterday.

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