Defence questions complainant in sexual assault trial about recording calls with accused

Recorded calls questioned

The cross examination of a woman who has accused her uncle of sexual assault continued in B.C. Supreme Court on Friday, as the defence questioned her motives behind recording phone calls confronting the man about the matter.

Earlier this week, a jury heard Dinushini Maligaspe, the complainant, had recorded two phone conversations in 2019, during which she confronted her uncle — Nihal Maligaspe — about sexual contact alleged to have frequently taken place between October of 2002 and September of 2008.

Court heard Maligaspe was unaware Dinushini was recording the conversations at the time.

Defence lawyer Jay Michi said Dinushini “created a pressure cooker in those calls,” and suggested by withholding the fact she was recording, she wasn’t being as forthcoming with Maligaspe as she had asked him to be with her.

“You cannot expect the jury to believe that those recordings were made solely so that you could go back and listen to them,” Michi said.

Michi suggested Dinushini made the tapes “to incriminate Mr. Maligaspe specifically,” planning a “meticulous and calculated cross-examination of him” to occur over the phone.

Michi said the recording showed Dinushini pivoted away from Maligaspe’s questions and steered the conversation away from an instance where he said she “clearly initiate[s] sex.”

“I submit you maintained complete control of Mr. Maligaspe in those calls,” Michi said.

Dinushini denied each suggestion, telling the jury she made the decision to write down her questions ahead of time so she wouldn’t forget them, and she recorded the phone calls to help her to remember the conversation.

She said she hadn’t thought about going to the police with the recordings at that time.

Dinushini strongly denied multiple times throughout the day that she initiated sex with her uncle, or that any of the sexual contact was consensual.

Maligaspe is standing trial on three counts of sexual assault related to incidents alleged to have taken place between 2002 and 2008. Court heard Maligaspe helped his niece immigrate from Sri Lanka to Canada in 2001 as she hoped to leave a "chaotic" family situation.

Dinushini said she enrolled in post-secondary nursing courses while living with her uncle and his family in Kamloops, and it was in 2002 when Maligaspe allegedly began forcing himself on her.

After moving away to Calgary, Dinushini said an event at work in December of 2018 — she was a registered nurse in the intensive care unit and had to care for a patient who looked like her uncle — triggered hallucinations, flashbacks, and symptoms of post-traumatic stress disorder.

After this, Dinushini said she told a friend about the period of alleged sexual assault and eventually planned the first phone call with her uncle in March of 2019.

Michi drew attention to phrasing used over the course of Dinushini’s recorded phone calls with Maligaspe. He said Dinushini started the first call by using the phrase “having sex with me,” to describe instances of sexual contact before “turn[ing] the dial up” to say, “you forced yourself on me.”

“At the white heat of the second call — one hour, two minutes and 30 seconds — that’s when you say ‘You raped me.’ That’s when we have that refrain, where you say ‘You raped me, you raped me.”

Dinushini said it took time before she felt she could use the right language to describe what happened.

“From the beginning when he first assaulted me until 2019, I had denied this had happened to me. And throughout my career, I’ve taken care of victims who were sexually assaulted, heard stories. … I always denied that, I thought this didn’t happen to me. But in my head, I was like, ‘But you said no every time.’ So it took me a while to accept that and start using that vocabulary,” she said.

She said as the phone calls were ongoing, she kept telling herself to “call it what it is.”

“I got the confidence to say the word — that’s a whole process. I don't expect you to understand, Mr. Michi, but that is the process I went through,” Dinushini said.

Michi asked Dinushini if sexual activity happened 100 times or more over the years.

“I don’t have a number. For me, it was infinite. Every time I said no,” she said.

Michi also asked Dinushini about an instance where she alleges Maligaspe assaulted her during the day in his office on campus at the University College of the Cariboo — now Thompson Rivers University.

Court heard Maligaspe was one of Dinushini’s nursing instructors at one point during her schooling.

Michi suggested it was “an entirely consensual encounter,” which Dinushini denied.

“This was a risky sexual episode for both of you, wasn’t it?” Michi asked.

“I was powerless. I had no voice, he runs the show. Risky? The risk for me was huge. Like I said, I didn’t know what would happen to my university life, my nursing career. … I was scared. I didn’t want to lose what I had already tried to put together,” she said.

“You said it was more risky for you than for him. …He’s teaching at the school, though,” Michi said.

“Yes. He should know better,” Dinushini said.

The trial is expected to continue Monday morning. Michi has said Maligaspe will take the stand in his own defence.

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