Jury begins deliberations in trial of man accused of sexual assaulting niece

UPDATE: 1:12 p.m.

A B.C. Supreme Court jury in a trial for a Kamloops man charged with sexually assaulting his niece has started its deliberations Thursday afternoon.

The jury in Nihal Maligaspe’s trial went out over the noon hour.

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ORIGINAL: 4:00 a.m.

A B.C. Supreme Court jury heard closing arguments Wednesday in the trial of a Kamloops man accused of sexually assaulting his niece multiple times over a seven-year period after helping her immigrate to Canada.

Nihal Maligaspe is standing trial on three counts of sexual assault relating to incidents that allegedly occurred between 2002 and 2008. Maligaspe has maintained all sexual encounters with his niece — the complainant, Dinushini Maligaspe — were consensual.

In his closing statement, defence lawyer Jay Michi said the jury should be “on a search for reasonable doubt throughout the evidence” as they deliberated.

Michi said the Crown bears the burden of proof — and if the jury has reasonable doubt about the evidence presented in court, they must acquit Maligaspe.

“Your primary role as a jury of his peers is not to sit solely in moral judgement of him, but to decide whether he is guilty of those offences that he’s charged with in a court of law,” Michi said.

Last week, the jury heard audio recordings of two phone conversations from in March 2019 between Dinushini and Maligaspe.

Dinushini said she called Maligaspe to confront him about the instances of sexual contact that had occurred years earlier, recording the calls so she could remember his answers. Court heard Maligaspe didn’t know he was being recorded at the time.

In the tapes, Maligaspe can be heard answering some of Dinushini’s questions with phrases like “yeah, I took advantage,” and “no, you didn’t give consent that day.”

Michi suggested to the jury Dinushini was recording the calls to build a case against Maligaspe, and asked jurors to “pay close attention to the circumstances in which those tapes were made.”

“Ask yourself whether, in all of the circumstances where Mr. Maligaspe is hoping to avoid having to tell his wife and kids, whether this specific interrogation could have produced a false confession,” Michi said.

Dinushini, who is now 40 years old, said she has experienced depression, hallucinations and other symptoms of post-traumatic stress disorder as she has come to terms with what happened.

Michi said he would suggest the hallucinations and flashbacks could have caused Dinushini to develop the idea the sex wasn’t consensual.

“I'm not saying that the memories she's experiencing are of completely fabricated events," he said.

"What I'm saying is those same memories, before and after that change, have a different subjective quality to them — so much so that consensual is now forced, sex is now rape.”

Crown prosecutor Katie Bouchard said Dinushini had been “clear and consistent throughout her evidence” that she never consented to sexual contact with her uncle.

“Ms. Maligaspe did not consent, and also could not consent, to any of the sexual contact between herself and the accused, either because she was unconscious — because she lacked the capacity to consent — or because the accused was in a position of trust, power or authority with respect to her at that time and abused that position to engage her in sexual activity,” Bouchard said.

Bouchard said Dinushini was 20 years old when Maligaspe — described as being a father figure to her at one time — helped her immigrate from Sri Lanka to Canada to leave a difficult home life.

Court heard Maligaspe paid for Dinushini’s international student tuition and other expenses, and became one of his niece’s nursing instructors during her time as a student at University College of the Cariboo — now Thompson Rivers University.

“It was not until 2019 that Ms. Maligaspe was able to fully come to terms with the abuse he had put her through and sever that relationship of trust with him,” Bouchard said.

Bouchard suggested Maligaspe wasn’t a credible witness due to inconsistencies between his testimony and what he said to Dinushini in the recorded phone calls.

“He sometimes struggled to answer a relatively straightforward question,” Bouchard said.

“For example, after every clip from the first recorded phone call to him, in which he had said, ‘I know every day after that it was only just sex drive,’ I had to ask him repeatedly whether he had heard himself say ‘sex drive’ in the audio clip.”

She said Maligaspe also exaggerated.

“He told you that Ms. Maligaspe was totally independent. He attempted to downplay his close relationship with Ms. Maligaspe and distanced himself from her at times.”

In regards to the recorded phone calls, Bouchard said Dinushini’s explanations about why she taped the calls made sense, and Maligaspe had no reason to lie over the phone about what he did to her.

“You should accept the accused’s response to her at face value. I submit to you that he was telling her truth when he admitted to her, ’Yeah, I took advantage,’ ‘No, you didn't give consent that day,’ and when she asked him, ‘So you would agree then, that you raped me?’ He said ‘Yeah, I guess I did,’” Bouchard said.

The jury is expected to begin its deliberations on Thursday morning.