Aboriginal Legal Service (NSW/ACT)

ALS News

Lollypop break-in case dismissed

23 Dec 2016



A half-chewed lollypop left at school was the only evidence police found to convict 12 year old Kaya* of break, enter and larceny.

Kaya had not been to local primary school for some years when it was alleged he broke in and stole an iPad and ransacked various rooms.

However, a half chewed lollypop left in one of the school rooms matched his DNA.

Kaya was charged.

The matter was heard before the Children’s Court in a country town in NSW.

The prosecution were very keen to remove the onus of doli incapax from Kaya’s case.

Doli incapax is the presumption that a child between the age of 10 – 14 years is ‘incapable of crime’ as they do not yet have a good understanding of ‘right and wrong’. Although the age of criminal responsibility in NSW is 10 years old, doli incapax can protect young people between 10 – 14 years old who are accused.

In their attempt to remove Kaya’s doli incapax, the prosecution wanted to give Kaya’s bail history to the court. A bail report is a history of all appearances before a court, regardless of the outcome.

Kaya’s ALS defence lawyer objected to the report being tendered. The lawyer suggested bail histories are not allowed as evidence, or as proof of prior ‘convictions’ under section 178 of the Evidence Act 1995. This had been successfully argued previously by another Aboriginal Legal Service (NSW/ACT) lawyer in Dubbo in R v GW [2015] NSWDC 52 (per Lerve DCJ).

The court allowed the ALS lawyer’s objection and Kaya’s bail history was not admitted into evidence. That meant doli incapax remained.

The ALS lawyer then argued that the prosecution had failed to prove a ‘prima facie’ case. This means a case where the evidence produced is sufficient to enable a verdict to be made.

The lawyer argued that the evidence produced by the prosecution - the half chewed lollipop - was not enough for a decision to be made.

The lawyer argued that the lollipop was a moveable object, and there were a number of possible reasons why the lollipop was found where it was, consistent with Kaya’s innocence.

The Court accepted the ALS lawyer’s submissions and found no 'prima facie' case.

The matter was dismissed.

Kaya was happy.


*names changed



Photo by Scott Hart


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