Lawyer’s Aussie defence: ‘If the thong don’t fit, acquit’

A GOLD Coast man accused of breaking into an apartment and taking a car has been acquitted after his lawyer put an Australian twist on the famous phrase invoked in the trial of OJ Simpson by Johnnie Cochran.

"Your Honour if the thong don't fit, acquit," lawyer Halley Robertson told the Southport Magistrates Court yesterday where her client, Stewart Brett Kemp, faced trial charged with entering a dwelling to commit and indictable offence and unlawful use of a motor vehicle in relation taking a car from Burleigh Heads.

‘If the thong don’t fit you must acquit’. Pic by Luke Marsden.
‘If the thong don’t fit you must acquit’. Pic by Luke Marsden.

Kemp, 36, was accused of taking a car from the basement of Ambience On Burleigh Beach apartments with two others on November 19 last year.

The court was played eight CCTV clips of two men and a woman in and around the building.

Kemp was alleged to have entered the building alone, and then with two other people, after taking a key from a letter box.

The trio allegedly entered a woman's apartment and took her belongings, including car keys, before going to the building basement and driving off in a late-model Audi A1.

Defence lawyer Johnnie Cochran: ``Remember these words,'' Cochran said. ``If it doesn't fit, you must acquit.'' (AP Photo/Vince Bucci, Pool)
Defence lawyer Johnnie Cochran: ``Remember these words,'' Cochran said. ``If it doesn't fit, you must acquit.'' (AP Photo/Vince Bucci, Pool)

While Kemp was allegedly caught on CCTV, the court heard his face could not be clearly identified in the footage.

Much of the argument in court focused on DNA found on a thong retrieved from the car, found abandoned at Napper Rd hours later.

The court heard DNA found on the thong matched Kemp and had a one in 990 billion chance of someone else, who was not a direct family member.

OJ Simpson putting on the gloves that did not fit during his 1995 trial: AFP Pic: Vince Bucci
OJ Simpson putting on the gloves that did not fit during his 1995 trial: AFP Pic: Vince Bucci

However, Ms Robertson said there was no way to know how the DNA got on the thong.

"Sharing thongs is not far fetched and is something anyone in this court might have done during summer months in this country," she said.

"(Mr Kemp) might have touched these thongs at some point, he may have stood on someone's foot at a public place, he may have sweated on it.

"Your Honour, another possibility is Mr Kemp may have had terrible aim at a urinal at some point and a splash back happened, to land on the foot of someone next to him.

OJ Simpson with lawyer F. Lee Bailey and Johnnie Cochran after he was found not guilty.
OJ Simpson with lawyer F. Lee Bailey and Johnnie Cochran after he was found not guilty.

"We don't even know what size this thong is, or if it fits Mr Kemp, and your Honour if the thong don't fit, acquit."

She said prosecutors could not prove Kemp committed the offences beyond reasonable doubt.

Police prosecutor Josie Salzman said although the evidence was circumstantial, the CCTV footage, DNA testing and other evidence should be considered on the whole.

Magistrate Gary Finger said he needed to be satisfied beyond reasonable doubt that Kemp was the man who entered the building and took the car.

"While I have suspicions, suspicions are not enough," Mr Finger said.

Mr Finger said he had to be convinced Kemp was the person wearing the thongs found in the car.

"I can't make that jump, I've certainly got my suspicions but the scientific evidence is such that we don't know where it came from on the thong," he said.

"I can't be satisfied."

Mr Finger found Kemp not guilty on both charges and discharged him.