Ex-Scotland striker David Goodwillie and former Dundee United footballer David Robertson had brought a legal challenge against Lord Armstrong’s finding in favour of Denise Clair but it was unanimously rejected by three appeal judges today.
Miss Clair (30) had claimed in a civil action that she was a victim of sexual assault and rape by the men at a flat in Armadale, in West Lothian, after she had gone for a night out on January 1 in 2011 in nearby Bathgate.
Following an evidential hearing Lord Armstrong said in a judgement issued earlier this year: “I find that in the early hours of Sunday January 2 2011 at the flat in Greig Crescent, Armadale, both defendents (the players) took advantage of the pursuer when she was vulnerable through an excessive intake of alcohol and, because her cognitive functioning and decision making processes were so impaired, was incapable of giving meaningful consent; and that they each raped her.”
Both Goodwillie (28) and Robertson (31) had accepted that they had sexual intercourse but maintained that it was consensual.
A full police investigation was carried out into the incident but no criminal prosecution took place.
Miss Clair, who had drunk a half pint of lager, eight or nine Jack Daniels and coke and two Jaegerbombs, maintained in the subsequent civil action that she had been raped by both men.
The court heard that she went in a taxi to Armadale with the players in the early hours of the morning. She later awoke, naked, in a strange house and had no recollection of events from shortly after she arrived at a pub, the Glenmavis Tavern, the previous evening.
Following Lord Armstrong’s ruling lawyers acting for ex-Dundee United, Blackburn Rovers, Aberdeen and Plymouth Argyle player Goodwillie and former Cowdenbeath footballer Robertson originally put forward five grounds of appeal.
But only two of the grounds were advanced at a hearing before the Lord Justice Clerk, Lady Dorrian, sitting with Lady Clark of Calton and Lord Malcolm, at the Court of Session in Edinburgh.
One claimed that Lord Armstrong had erred in his treatment of evidence from a witness, Clifford Wilson, who was an upstairs neighbour at the Greig Crescent flat.
The other maintained that by failing to give adequate weight to CCTV evidence the judge was mistaken in his assessment of the extent to which Miss Clair’s intoxication would have been apparent to the players.
Lady Dorrian said: “It was a feature of both these grounds of appeal that they did not specify what the consequence of these alleged errors of assessment were said to be, or in what way they were said to impact on the Lord Ordinary’s approach to the evidence generally, undermine his findings in fact or vitiate his conclusions.”
The Lord Justice Clerk said it was well established that the circumstances where an appeal court can interfere with findings of primary fact made by the judge who saw and heard the witnesses were very restricted.
She pointed out that Lord Armstrong had found Miss Clair to be credible and reliable and entirely genuine and rejected the evidence of both players.
She said he had considered that Goodwillie was “not an impressive witness” and that Robertson, like his former teammate, was selective about what he was prepared to tell the court and was “not entirely candid”.
Lady Dorrian said that Lord Armstrong had pointed out that CCTV evidence in the case only provided “snapshots” of her condition during the evening.
“His view of it as a whole was that, whilst she could be seen to walk unaided in clips shown, the CCTV evidence generally depicted the respondent as intoxicated,” she said.
Lady Dorrian said: “Given the partial nature of the footage, the Lord Ordinary rightly did not consider it appropriate to take it as representing the whole picture of the respondent’s condition or presentation on the evening in question, and in particular towards the end of the evening when she left in the company of the reclaimers (the players).”
“To reach a conclusion on that matter he required to consider the whole evidence in the case, including eyewitness evidence and the expert evidence as to the effect of the likely blood alcohol levels in the respondent’s system,” she said.
“He thus had before him a body of evidence which showed her progressive intoxication during the evening for most of which she was in the company of both reclaimers.”
A security staff member at Chalmers nightclub in Bathgate, Gail McGregor, had found her with her eyes rolling in her head and unable to stand up straight or speak properly.
Roberston had said he was going to take her away with him but she had responded that she needed an ambulance.
Lady Dorrian said that taking into account evidence from witnesses and expert testimony the appeal judges did not consider that there was any merit in the suggestion that Lord Armstrong did not give sufficient weight to CCTV evidence.
Mr Wilson had said he heard giggling and laughing and what sounded like “normal sex” from the downstairs flat.
But Lord Armstrong had said he considered the evidence to be confused and that he could not, on a balance of probability, ascribe what Mr Wilson heard to the central events in question.
Lady Dorrian said: “In our view that was a conclusion which was open to the Lord Ordinary on the evidence.”
The Lord Justice Clerk added that even if they had reached the conclusion that Lord Armstrong had erred in his treatment of Mr Wilson’s evidence they considered the appeal would still have been refused.
“Even if what Mr Wilson heard could have been attributed to the events in question, we are not persuaded that this would have made any difference to the outcome, standing the Lord Ordinary’s acceptance of the evidence, including expert evidence, as to the respondent’s condition, and his conclusion as to the reclaimers’ awareness of it (none of which was the subject of challenge),” she said.
Lady Dorrian added: “As the Lord Ordinary observed the modern law of consent requires that an individual has the capacity to give free agreement.”