Appeal judges were today urged to look again at evidence that led to a former Scotland striker and his ex-teammate being labelled as rapists in a civil action.
Senior counsel for David Goodwillie argued that the judge who ruled against the players in the damages action fell into error by failing to take into account of testimony from a neighbour led in the case.
Dorothy Bain QC said that Lord Armstrong’s treatment of the evidence from Clifford Wilson was “unsatisfactory and erroneous”.
The judge ruled earlier this year that Denise Clair was entitled to £100,000 in agreed damages after ruling that she had proved her case against David Goodwillie and David Robertson.
He said: “I find that in the early hours of Sunday January 2 2011 at the flat in Armadale, both defenders (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.”
Goodwillie (28) who formerly played with Dundee United, Blackburn Rovers and Aberdeen and his former Tannadice teammate Robertson (31) had maintained that the sex was consensual.
Both men have now appealed against Lord Armstrong’s decision to three judges, the Lord Justice Clerk, Lady Dorrian, Lady Clark of Calton and Lord Malcolm, at the Court of Session in Edinburgh.
In his judgement Lord Armstrong had said that Mr Wilson’s evidence during the case was “sufficiently confused that little reliance ought to be placed on it”.
He said: “I do not think it possible, on the balance of probabilities, to ascribe what Mr Wilson heard, with any appropriate degree of certainty, to the central events at issue in this case.”
Mr Wilson, who lived in a flat in Armadale, in West Lothian, said he had heard giggling and laughing and what sounded like “normal sex” from the downstairs property.
Miss Bain said that what Mr Wilson described hearing was “supportive of a consensual encounter”. She said: “The words he hears make sense in the context of what was happening.”
She said: “It is clear Mr Wilson was talking about the events of the early hours of the morning of January 2 in 2011.”
She said a fundamental error had been made that Mr Wilson had been confused that he was listening to another man who had had sex with a partner at the flat on January 1 rather than the participants in the case.
Miss Bain argued that it had resulted in the judge failing to take into account important evidence that was relevant to critical issues in the action.
One of the things that Mr Wilson had heard was a female saying: “Don’t rub my breasts so hard.” Miss Bain said the words were demonstrative of a woman who was awake, alert, capable of talking and making it clear she did not want her breasts touched in such a way.
“The words uttered are consistent with her being capable of giving, and indeed withholding consent, to sexual activity,” she told the court.
Miss Clair (31) who previously waived her right to anonymity, had gone out with a friend in Bathgate but woke the following morning naked in a house she did not recognise.
She contacted police and although an investigation was carried out no criminal prosecutions were brought. She was granted an award under the criminal injuries compensation scheme.
The hearing continues.