If It Smells Like Sh#%, You Must Acquit

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Black gloves

How could anyone forget American defence lawyer Johnny Cochran’s legendary line, ‘If it doesn’t fit, you must acquit’?

There are all sorts of explanations about why the glove produced as an exhibit during the trial of OJ Simpson didn’t fit – he stopped his arthritis medication in the lead-up to the trial, he saved his best acting for the courtroom, the latex glove he wore created extra thickness; or, for those who agree with the verdict, he wasn’t the one who killed his ex-wife Nicole Brown Simpson and her lover Ronald Goldman.

But putting OJ aside for the time-being, one lawyer might have been forgiven for using a similar phrase to secure the acquittal of her client.

In that case, a man accused of leaving his underpants and other forensic samples behind during a 2014 burglary at a café in Braddon, A.C.T. has been acquitted after a Supreme Court trial.

When police investigated the break-in, they found a pair of soiled underwear in the cafe’s office, together with documents smeared with faeces.

The café  owners later reported $4,000 missing from a safe inside the office, as well as an iPod and car keys.

DNA testing linked the faeces to Mr Wesley Matthew King, but there was a catch – a secondary sample from an unidentifiable person was also present.

Armed with the underwear and skid marks, the prosecution took Mr King to trial for burglary-related charges.

Chief Justice Helen Murrell had the unenviable task of sifting through the evidence to determine whether the prosecution had proved Mr King’s guilt beyond reasonable doubt.

After careful analysis, Her Honour was unable to exclude the possibility that someone else may have been wearing Mr King’s phunky undies at the time:

“I am not satisfied that guilt is the only available rational inference”, she found.

“There is, for example, a reasonable [albeit small] possibility that the burglar was someone else who was wearing unwashed underpants that had previously been worn by the accused”.

Accordingly, Her Honour returned a verdict of not guilty for all charges.

Circumstantial Cases

The evidence against Mr King was purely circumstantial – nobody saw the alleged offence and there was no CCTV footage. In those types of cases, the prosecution must exclude any reasonable hypothesis (explanation) that is consistent with the accused person’s innocence.

Evidently in the case at hand, Her Honour formed the view that a reasonable explanation was that another person wore Mr King’s soiled underwear and committed the offence, during which he or she smeared the faeces-ridden underwear over documents in the office.

So there you have it – If it smells like sh#%, you must acquit.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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