Dis­miss­ing ev­i­dence in rape case was ‘er­ro­neous’, ap­peal judges told


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Cres­cent, 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

David Good­willie was la­belled as a rapist. Wil­son heard, with any ap­pro­pri­ate de­gree of cer­tainty, to the cen­tral events at is­sue in this case.”

Mr Wil­son, who lived in the up­stairs flat at the ad­dress at Greig Cres­cent, 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 voice. 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.

Let­ters are in­sight into Zambesi ex­pe­di­tion.

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