By Antonia Quinlivan, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Pearson v Janlin Circuses Pty Ltd [2002] NSWSC 1118  
 
Court – Supreme Court of New South Wales  
Judge – Windeyer J 
Date of Judgment – 25 November 2002

FACTS OF THE CASE

Animal Liberation, the appellant, took action against Stardust Circus, the respondent, in relation to the treatment of one of their elephants. The elephant had been deprived of contact with other elephants for several years. In 2000, the circus authorised three elephants to be kept in close proximity to the elephant in question for a number of hours. The three elephants were then removed. It was argued that as a result of this act, the elephant was unreasonably, unnecessarily or unjustifiably abused, tormented, infuriated or inflicted with pain in contravention of s 5(2) of the Prevention of Cruelty to Animals Act 1979 (NSW) (‘the Act’).

At first instance, the trial judge found that Stardust Circus required intent and knowledge that an act would be cruel for it to be recognised as such under The Act; no act of cruelty was established due to a lack of mens rea. On appeal to the Supreme Court of New South Wales, it was determined that mens rea was not an element of a cruelty offence under the Act.

THE ISSUE

Whether the offence in s 5(2) of the Act was one of strict liability.

THE DECISION

Windeyer J allowed the appeal, setting aside the decision of the Magistrate and remitting the matter to the Magistrate to be reheard according to law.

Windeyer J relied on the Supreme Court decision of Dowd J in Bell v Gunter (Unreported, Supreme Court of NSW, Dowd J, 24 October 1997)(‘Bell’) involving a prosecution for aggravated cruelty under s 6(1) of the Act. Bell was decided under s 6(1) of the Act, however, the reasoning was also applicable to offences under ss 5(1) and 5(2).

According to s 5(2) of the Act, “[a] person in charge of an animal shall not authorise the commission of an act of cruelty upon the animal.”

Dowd J in Bell v Gunter relied on the second category of offences enumerated by Gibbs CJ in the High Court case of He Kaw The v The Queen (1985) 157 CLR 523. This category included offences which were not absolute, though were such that the legislative intention clearly excluded a requirement of mens rea to prove the offence. The doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. Dowd J ruled that a charge of aggravated cruelty falls into the second category of offences, and as such is one of strict liability. His Honour held,

The offences created, in my view, are created with the purposeful legislative intention of protecting animals, in most cases totally unable to protect themselves from a range of activities which contemplate certain circumstances in which the court would have to evaluate whether reasonable steps have been taken…the offences are such that the legislative intention seems clearly not to require a component of mens rea in the proof of the offence.

Stardust Circus’s notice of contention also failed. It claimed that as any infliction of pain occurred on the taking away of the elephants, which it did not authorise. However, the Court held that Stardust Circus authorised the entry of the entity which removed the elephants, and by extension, the authority to leave the property. Thus, the original authority given to the removing entity implied permission for the subsequent action, or assumed that it would take place.

COMMENTARY

This case clearly establishes that cruelty is an offence of strict liability. As such, mens rea, including intention or recklessness, is not a requirement of the offence.

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