A former Scotland international footballer is set to argue that a judge who ruled he was a rapist erred on the law and in his treatment of critical evidence.
David Goodwillie (28) and his ex-Dundee United teammate David Robertson (30) were ordered to pay their victim £100,000 damages after she sued them claiming they sexually assaulted and raped her.
Both men accepted that they had sex with the woman after a night out in Bathgate, West Lothian, but maintained it was consensual.
Neither was prosecuted through the criminal courts but the victim brought a civil action for damages at the Court of Session in Edinburgh against them.
Earlier this year Lord Armstrong said in a judgement that he found the evidence in support of her case to be “cogent, persuasive and compelling”.
The judge said: “I find that in the early hours of Sunday, January 2 at the flat in Greig Crescent, Armadale, both defenders 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 men have appealed against the ruling and a two day hearing for the legal challenge, in which it is claimed that the definition of consent applied by Lord Armstrong was erroneous, was set for November this year following a brief procedural appearance before Lord Malcolm today.
Laura Thomson, junior counsel for Goodwillie, said it was proposed that transcripts of at least some of the evidence led before Lord Armstrong would be available to civil appeal judges.
Ms Thomson said this included the testimony of Clifford Wilson who was an upstairs neighbour at the flat where the rape said to have taken place.
She said: “He said certain things consistent with consent or alternatively consistent with reasonable or honest belief in consent.”
She submitted it would be of great benefit in the appeal to have a transcript of his evidence and added that from Goodwillie’s point of view it would be “the most critical passage of the evidence”.
Mr Wilson told the court that he had heard male and female voices from the downstairs flat talking and laughing. He had also heard the woman saying not to handle her breasts so hard.
Lord Armstrong said that in his assessment Mr Wilson’s evidence was “sufficiently confused that little reliance ought to be placed on it”.
The judge said that he did not consider it appropriate to ascribe what he heard to the incident involving the woman and the footballers rather than a sexual encounter between another man his partner that took place in the downstairs flat on the morning of January 1.
But Goodwillie’s lawyers argue that Lord Armstrong made a critical finding of fact which had no basis in the evidence, was perverse and fell into error.
Ms Thomson said it might also be of assistance to have the evidence of Gail McGregor who was part of the security staff at Chalmers nightclub in Bathgate on the night of January 1.
She said: “It is the first reclaimer’s (Goodwillie’s) position that her evidence does not sit comfortably with CCTV footage that was available.”
The security employee had said the woman was “like a jelly” when she was trying to stand and was not compos mentis.
In Goodwillie’s appeal it is contended that Lord Armstrong failed to give sufficient weight to CCTV evidence from the early hours of the morning in which she was seen to walk unaided and without any apparent difficulty.
Ms Thomson had argued that the appeal should go ahead in March next year. She said that Goodwillie’s senior counsel, Roddy Dunlop QC, who has been extensively involved in the preparation of the appeal on a pro bono basis, was instructed in the trams inquiry
But Simon Di Rollo QC, for the woman, said: “In my submission, the unavailability of senior counsel is not a good reason for the case not proceedings in November.”
He said: “March is an awfully long time away for the pursuer to wait for resolution of this matter which has been ongoing for some considerable time.”
Lord Malcolm ruled that the appeal should proceed on November 14 and 15 and said: “I am not satisfied it would be appropriate to delay this case into March of next year.”
Goodwillie has played for Aberdeen, Blackburn Rovers, Plymouth Argyle and Clyde. Robertson announced his retirement from football after the case.