VANCOUVER, B.C. — A man convicted of sexual assault after an incident at a Whistler home has had his appeal dismissed by the B.C. Court of Appeal.
Damian Joseph Russo was convicted of sexual assault in August 2024 following an incident in which a 19-year-old complainant alleged four incidents of sexual contact over a single evening at his home. The first three incidents were not disputed, but the issue was whether the complainant consented. The fourth incident, alleged to have occurred on interior stairs, was disputed entirely.
The trial judge had concerns about the credibility of both the complainant and Russo. He found a reasonable doubt existed with respect to the first three incidents, but convicted Russo on the fourth after finding corroborating evidence from the complainant’s friend, A.M., credible. A.M. testified she was present on the stairs and saw Russo touching the complainant, putting his hands up her dress, and biting her buttock while the complainant swatted him away and tried to keep her underwear up.
Russo appealed on three grounds: that the judge failed to apply the W.(D.) principles, that the judge failed to consider whether A.M.’s testimony was tainted by discussions with the complainant before police were called, and that the judge misapprehended evidence about the complainant’s post-event conduct.
In a unanimous decision delivered Sept. 29, Justice Warren found no reviewable error. The court found the judge did not fail to consider material exculpatory evidence, was alive to the issue of potential tainting, and made no error in finding the complainant’s post-event conduct was not determinative.
The appeal was dismissed.
