Footballers lose appeal in civil rape case
Two professional footballers have failed in their appeal against an award of damages in a civil case brought by a woman who claimed they had raped her.
David Goodwillie and David Robertson had sought to reverse Lord Armstrong's ruling in which he awarded £100,000 damages to the woman, DC, who claimed she was raped at a flat in Armadale, West Lothian after meeting the two on a night out in Bathgate.
The defenders accepted that they had sexual intercourse with her but maintained that it was consensual. A police investigation was carried out but neither was prosecuted. In his decision Lord Armstrong found that both defenders took advantage of DC when she was vulnerable through an excessive intake of alcohol and incapable of giving meaningful consent. (Click here for report.)
Five grounds of appeal were presented, but ultimately only two were argued: that the judge erred in his treatment of a witness who lived in the flat upstairs who spoke to overhearing exchanges suggestive of a consensual encounter, and that he failed to give adequate weight to CCTV evidence that had a bearing on DC's ability to consent.
The Lord Justice Clerk, Lady Dorrian, sitting with Lady Clark of Calton and Lord Malcolm, refused the appeal. Giving the opinion of the court, Lady Dorrian said that the circumstances in which an appellate court could interfere with findings of primary fact made at first instance were very restricted: the views of the judge who had seen and heard the witnesses had been described in another case as "critical", and the assessment of the evidence was "pre-eminently a matter for him".
Having reviewed the evidence Lady Dorrian continued: "In light of all this evidence we do not consider that there is any merit in the suggestion that the Lord Ordinary did not give sufficient weight to the CCTV evidence. As to the argument that there was room to differentiate between the reclaimers as to their likely degree of knowledge of the respondent’s condition and presentation, we do not accept that there was a basis for differentiating between either reclaimer in this way to any material degree. Both had spent time in the respondent’s company during the course of the night; her progressive intoxication, spoken to by several witnesses must have been apparent to them both".
As regards the upstairs neighbour, the Lord Ordinary had not erred in the weight he gave to it; even if he had, "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)".