Two professional footballers who were found to have raped a woman after a judge ruled she was “incapable of consenting” due to the effects of alcohol have had an appeal against the decision dismissed.
David Goodwillie and David Robertson were ordered to pay damages of £100,000 to Denise Clair after the court held that they had “no legitimate belief, whether reasonable or honest, that she was consenting”.
They appealed against that decision, but the Inner House of the Court of Session upheld the Lord Ordinary’s decision.
Common law wrongs
The Lord Justice Clerk, Lady Dorrian, sitting with Lady Clark of Calton and Lord Malcolm, heard that the pursuer and respondent raised the civil action seeking damages from the defenders and reclaimers, claiming that they committed the common law wrongs of sexual assault and rape against her.
Ms Claire, 30, raised the action after a full police investigation resulted in no criminal prosecution.
Both Goodwillie, 28, and Robertson, 31, accepted they had sexual intercourse but maintained it was consensual.
Quantum of damages was agreed between the parties and after proof on liability Lord Armstrong found in favour of the respondent in an opinion dated 17 January 2017, in which he held that in the early hours of 2 January 2011 at an address in Armadale, each reclaimer raped the respondent in circumstances in which by reason of excessive consumption of alcohol she was incapable of consenting and that the reclaimers had no legitimate belief, whether reasonable or honest, that she had the capacity to give free agreement.
The reclaimers challenged that decision, arguing that the Lord Ordinary erred in reaching certain conclusions.
‘Reasonable and honest belief’ of consent
One witness, Clifford Wilson, who lived in the flat upstairs from that in which the events in question were said to have occurred, had told that court that he heard giggling and laughing and what sounded like “normal sex” from the downstairs flat.
Lord Armstrong said he considered Mr Wilson’s evidence to be “confused”, but counsel for Goodwillie, Dorothy Bain QC, submitted that the Lord Ordinary erred in his treatment of the witness.
It was also argued that the judge failed to give adequate weight to CCTV evidence at about 0230 and therefore erred in his assessment of the extent to which the respondent’s degree of intoxication would have been apparent to the reclaimers.
Counsel for Robertson, Stephen O’Rourke QC, submitted that the Lord Ordinary erred in his conclusion that the reclaimers did not have an honest or reasonable belief in her consent.
However, counsel for the respondent, Simon Di Rollo QC, submitted that the Lord Ordinary had seen and heard all the witnesses in the case and there was “no proper basis” for attacking either his reasons or his assessment of the witnesses concerned, adding that in any event, Mr Wilson’s evidence was “not critical”.
Further, in relation to the evidence that the respondent was severely intoxicated, he argued that there was “ample evidence” of this from a variety of sources and the CCTV footage could not be said to be inconsistent with that finding.
‘No merit’ in the appeal
Refusing the appeal, the judges observed that it as a feature of both 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”.
Delivering the opinion of the court, the Lord Justice Clerk said: “The Lord Ordinary considered the issue of the respondent’s level of intoxication under reference to (i) the CCTV evidence; (ii) the eye witness evidence; (iii) her likely consumption during the evening; and (iv) the expert evidence.
“As the Lord Ordinary pointed out, the CCTV evidence provided only evidence of snapshots during the course of 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.
“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.”
Turning to the evidence of Mr Wilson, the judges considered that the Lord Ordinary was entitled to conclude that his evidence was not reliable.
Lady Dorrian said: “In our view that was a conclusion which was open to the Lord Ordinary on the evidence. For the reasons we have explained, we consider that the Lord Ordinary’s specific reasons for considering the possibility of confusion are not ‘insupportable’ and that there is no merit in the attack upon his assessment of the evidence or the reasons he gave therefore.”
She added: “Even if we had concluded that the Lord Ordinary had erred in his treatment of the evidence of Clifford Wilson, we consider that this reclaiming motion would nevertheless be 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).”