10/17/2013 11:02 EDT | Updated 01/23/2014 06:58 EST

Gurdev Singh Dhillon Sex Assault Conviction Sent To Appeal Court

OTTAWA - The Supreme Court of Canada is sending the case of a B.C. man who appears to have been wrongly convicted in a 2004 sexual assault back to the provincial court of appeal.

The high court says the appeal judges will have to consider fresh evidence and decide if there was a miscarriage of justice in the case of Gurdev Singh Dhillon.

He was convicted of sexual assault in 2005, but earlier this year prosecutors discovered that DNA evidence in the case wasn't disclosed to either the Crown or the defendant.

What the lawyers didn't know was that swabs taken from the victim at the hospital and an article of her clothing were sent for DNA testing and the profile that came back did not match Dhillon.

Crown prosecutors called it a miscarriage of justice and the RCMP apologized.

The lawyer who defended Dhillon at trial said his client served four years in prison and was deported in 2008.

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