Two sides to every story

Does Craig McLachlan not have the right to protest his innocence? Photo / file

There are always two sides to every story. That was graphically displayed with TVNZ's recent screening of a documentary that told Australian actor Craig McLachlan's version of events that led to his being charged with 13 offences, including eight counts of indecent assault, after three women complained that he had sexually harassed them during the Australian production of the musical The Rocky Horror Show.

He was acquitted on all charges late last year, albeit with some apparent reluctance on the part of the magistrate, who according to the documentary found the complainants to be more compelling witnesses than the defendant.

Belinda Wallington found that the women were "brave and honest witnesses," but the prosecution had not met the required standard for her to convict McLachlan. While some of the incidents "probably occurred," they were not necessarily indecent, and did not meet the high criminal standard required in law.

Whatever the truth, the allegations destroyed McLachlan's career, leading him, he said, to contemplate committing suicide.

The screening of the documentary, however, exposed a broader issue when Louise Nicholas, who is recognised as this country's leading advocate for the rights of women who have been the victims of sexual violence, said it was "inappropriate and disappointing" that the programme had gone to air.

Nicholas may not have been well served by this country's justice system, and may be entitled to hold a somewhat jaundiced view of its ability to establish the truth. She is not entitled, however, to declare that in a case such as McLachlan's the defendant is unquestionably guilty whatever conclusion a court might come to.

It was certainly difficult to reach the conclusion, after watching this documentary, that McLachlan was treated fairly by the media before his trial, if for no other reason than the timing of the accusations. They coincided with the avalanche of allegations against and prosecution of American movie mogul Harvey Weinstein, and the emergence of the #MeToo movement, one of those involved in McLachlan's downfall allegedly stating that he could be "Australia's Weinstein."

It is difficult not to draw a parallel between this case and that of Peter Ellis, who was convicted and jailed on charges of child abuse at a Christchurch creche, the jury accepting evidence that seemed utterly bizarre, and has since been seriously discredited, not only in terms of the evidence itself but the way in which it was gathered, at a time when that manner of offending held the world in thrall.

There are basically three reasons why those charged with criminal offending might not be convicted. The first is that the prosecution fails, whatever the evidence, because of a legal technicality. The second is that the prosecution doesn't have sufficient evidence, or does not present it well enough to persuade a judge or jury of the defendant's guilt. The third is that the accused might actually be innocent.

We see examples of all three scenarios on a regular basis in this country, although to be fair the third is undoubtedly the rarest. But we have to accept that an acquittal, after a judge or jury has heard all the evidence, and has had the chance to assess the witnesses for the prosecution and defence, means that the defendant is not guilty. If we don't accept that then we really don't have a justice system at all. We don't have the Scottish option of 'not proven.'

We might not believe in a person's innocence - there might never be public unanimity regarding the innocence or guilt of Arthur Allan Thomas, David Bain or Scott Watson - but has anyone seriously questioned the right of those who maintain their innocence to state their case?

To deny McLachlan his opportunity to tell his side of the story, once the charges against him had been dismissed, effectively says that whatever a court might have found, he is guilty. End of story.

There is nothing that Nicholas, and others, have said in criticising the screening of the documentary that cannot be said on McLachlan's behalf. Most fundamentally, did the documentary "re-victimise" the women who made the allegations? That could only be true if the allegations were true. And a magistrate has found that the actions that gave rise to the charges were not necessarily indecent, and did not meet the high criminal standard required in law.

Is McLachlan not entitled to the benefit of that finding?

The position taken by Nicholas, and she is by no means alone in this, effectively argues that any woman who claims to have been sexually victimised is telling the truth, and any man who denies that offending is lying. Neither is tenable, and a justice system that does not recognise that is no justice system at all. This is why we all have the right to a fair trial, where allegations are tested.

Nicholas went too far when she said that "What really gets me is that (McLachlan) has had his say. Yes, he was found not guilty in a court of law, but it doesn't meant to say that he is not guilty, it's just there wasn't the burden of proof to get beyond reasonable doubt... just because somebody has been found not guilty, it doesn't mean that they are not guilty."

True, but what if he genuinely isn't guilty? What if the allegations were made in malice?

Nicholas' major concern was that the screening of documentaries of this nature deters genuine victims from complaining, fearing that they will not be listened to or believed. A fair point perhaps, but the only alternative is to deny the accused the right to defend themselves, not only in court but within society. The fact that McLachlan is now suing various parties for defamation suggests that he genuinely believes he has been wronged. Does he not have the right to do that either?

If he was guilty he might well have chosen to let sleeping dogs lie. If he believes that he is the victim of an outrageous calumny, he has every right, legally and morally, to make every effort to clear his name. And remember, it was his accusers who went to the media first.

Whatever their gender, whatever their station in life, every individual has the same right to avail themselves of a legal system that should serve each and every one of us equally. To suggest that all men are predators and all women are innocent victims is unhelpful.

And in this case, while a television documentary might not be the ideal means of exposing what McLachlan, despite his acquittal, believes represents an an ongoing miscarriage of justice, it is only replying in kind to what is generally accepted as his own trial by media and the impact that had on his wellbeing over more than three years.

TVNZ defended the decision to screen the documentary in part by pointing out that it made no wider claims about sexual assault allegations or victims of sexual assault. Difficult to argue against that, isn't it?

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