A Kamloops man who was convicted of sexually assaulting his niece a number of times over a multi-year period is seeking a mistrial, alleging a perception of bias on the part of the judge who oversaw his trial earlier this year.
Nihal Maligaspe stood trial in the spring on three counts of sexual assault. On May 6, a B.C. Supreme Court jury returned with guilty verdicts on two of the counts.
At trial, court heard Maligaspe helped his niece, Dinushini Maligaspe, flee a “chaotic” home life in Sri Lanka, offering a place to stay with his family in Kamloops. Not long after she moved to Kamloops, he began to force himself on her.
Dinushini recorded a series of phone calls with her uncle in 2019, in which she confronted him about their relationship and the allegations. Those tapes were played for the jury.
Court heard Maligaspe was not aware the phone calls were being recorded.
Maligaspe was supposed to have been sentenced last week, but the Friday hearing was postponed. He is now applying for a mistrial, with the matter slated to go before a new judge on Wednesday.
Defence lawyer Jay Michi told Castanet Kamloops the trial judge, B.C. Supreme Court Justice Sharon Matthews, has recently recused herself from the case. Michi said he is seeking the mistrial because Matthews' former law firm is representing Dinushini Maligaspe in a civil suit against Nihal Maligaspe.
“We say that the reasonable apprehension of bias taints the fairness of the entire trial,” he said.
During his trial, Maligaspe did not deny having sex with his niece but maintained the encounters were consensual.
The charge on which Maligaspe was acquitted related to allegations over a specific period during which Dinushini was not living under his roof.
Complainants in sexual assault cases typically cannot be named because their identities are protected by court-ordered publication bans. In this case, Dinushini applied successfully ahead of the trial to a judge to have the ban lifted, meaning she and Maligaspe can be identified by name.
The mistrial application is slated to be heard on Wednesday morning. If it is granted, a second trial could take place.