A new trial has been ordered for former Yukon Party Copperbelt MLA Haakon Arntzen.

The 58-year-old man was found guilty in May 2005 of three counts of indecent assault involving two women dating back more than 25 years.

The court of appeal for the Yukon handed down the 15-page decision this morning, a month after the appeal was heard in Vancouver on May 15.

It is written by the Hon. Justice John Hall and signed by Madam Justice Mary Newbury and Hon. Justice Kenneth Mackenzie.

Citing the 'flawed credibility analysis' of the trial judge, Yukon Supreme Court Justice Leigh Gower, the decision says the convictions cannot safely stand.

'As with the other counts involving (complainant one) on which convictions were registered against the appellant (Arntzen), I consider that an order for a new trial is warranted on this count involving (complainant two) and I would so order,' states the decision.

Throughout the trial, the court heard of a number of times through years that one complainant was assaulted by Arntzen and the second complainant one time, between 1972 and 1980.

The first complainant said he laid on top of her, French-kissed her and would hold her on his lap in a sexual way from time to time. Another time, he touched her buttocks when she was tanning, she told the court.

Those incidents of alleged sexual assault formed the factual foundation for two of the convictions.

In the other conviction, the complainant said she had awakened to find Arntzen fondling her breasts and moving his hand toward her groin. The first complainant was sleeping next to the other and woke up to observe what she thought was Arntzen molesting the complainant.

Arntzen appealed his convictions on three grounds:

• that Gower erred in law by taking judicial notice of one complainant's term of 'body memory';

• the trial judge also erred in law in his credibility analysis and failed to properly interpret and apply the principles set out in case law; and

• that the convictions were unsafe and constitute a miscarriage of justice.

'Counsel for the appellant suggested as a component of this third ground that the judge failed to take proper account of possible collusion by the complainants and the circumstances of their jointly seeing counsellors,' states the decision.

'The first and second grounds, if successful, could result in an order for a new trial on one or more counts. The relief sought pursuant to the third ground is a verdict of acquittal.'

On the first matter over one complainant's term of body memory, the appeal judges ruled it seems the judge is simply using common sense in responding to an argument over the reliability of one complainant.

'The trial judge, correctly in my view, observed that memory is a complex phenomenon and he found that it was not unusual that the complainant might recollect her memory of the event by the methodology she described in her evidence,' states the decision.

The appeal judges took issue, however, with Gower's view on Arntzen's credibility.

Gower found Arntzen had looked to minimize his opportunities to assault one of the complainants.

'Ultimately, the appellant's position was not that he did not have many opportunities to assault (complainant one), rather he simply said he never did,' the decision reads.

'I do not consider it could be found on a full consideration of his evidence and what he said to the police that he was inconsistent in his narrative as found by the trial judge. Such a finding, in my view, would amount to an evidentiary misapprehension.'

The appeal judges said Gower also seemed to see Arntzen as downplaying any unpleasantness between himself and one complainant.

However, the court of appeal's Justice Hall wrote, when he read the evidence, Arntzen acknowledged a turbulent relationship through a number of years.

'It would not be appropriate to utilize his evidence in this regard to reflect adversely on his credibility as a witness,' the decision reads.

Gower also took issue with Arntzen's total denial of one particular incident, stating he found Arntzen to not be believable 'and this detracts from his credibility generally.'

In its decision, the court of appeal judges wrote: 'A trial judge is clearly entitled to prefer the evidence of one witness over another, but the mere denial of the event in the circumstances of this case seems to me an unsatisfactory basis for the judge to draw an adverse credibility inference against (Arntzen).'

While Gower also seemed to take issue with Arntzen's inability to remember some details through that time period, the appeal judges noted due to Arntzen moving around a lot, it wouldn't be appropriate to put any stress on that in considering credibility.

Although it is open to a judge to prefer the testimony of one witness over another, such a finding can't be held if it rests on 'demonstratively flawed analysis of the evidence,' states today's decision.

Because Gower's decision considered the credibility of Arntzen and the complainant, court of appeal justices ordered a new trial on the two counts involving the complainant.

On the other count, it was submitted by Arntzen's lawyer Brian Beresh that Gower should have been more vigilant in scrutinizing that evidence because of possible collusion between the two women who had contact and made disclosures to counsellors shortly before charges against Arntzen were laid.

The trial judge, the decision reads, had the advantage of hearing from the counsellors and two complainants that they avoided discussing the facts of any assaults in some meetings where both were present.

'Looking at the record here, I am not of the opinion that there is any real substance in the suggestion made by counsel of a danger of collusion' between the women or the tainting of evidence' by the actions of the counsellor.'

The more salient problem, said the judges, on this count is the finding against Arntzen is related to credibility.

'The judge's decision to reject the evidence of the appellant that he did not commit this alleged act was dependent on his view of the credibility and reliability of the testimony of the appellant,' the judges noted, before ordering a new trial on that count as well as the earlier two.

Because of the new trial, the judges stated it wasn't necessary to address the admissibility of potential fresh evidence in the case or the reasonableness of the verdict.

'I would allow the appeal of the appellant and order a new trial on the three counts upon which he was convicted,' reads the decision. 'This order, of course, renders moot the Crown's sentence appeal.'

Arntzen was elected as part of the Yukon Party government in 2002.

After the charges were laid in the spring of 2004, he left the caucus to sit as an independent, and later resigned his seat.