The defendant deprived an elephant in a circus of contact with other elephants for years. On a particular day, the defendant authorised three other elephants to be kept in the proximity of the elephant for a number of hours. It was claimed that this act constituted an act of cruelty as it caused distress to the elephant. On appeal, it was determined that mens rea was not an element of a cruelty offence under the statute.
1 This is an appeal from a decision of a Magistrate, Mr Lyons, sitting at the Local Court in the Downing Centre, dismissing proceedings by information under the Prevention of Cruelty to Animals Act 1979 (the Act) against Janlin Circuses Pty Limited, which proceedings alleged an offence under s5(2) of the Act. The relevant part of the information is as follows:
That on 30 December 2000 at Gosford in the State of New South Wales, the Defendant
Did, being in charge of an animal, namely an elephant, authorise the commission of an act of cruelty upon the animal.
PARTICULARS: at all relevant times the Defendant was in charge of an Asiatic elephant known as “Arna”. “Arna” has been kept by the Defendant for a number of years without any contact with other elephants.
On 30th December 2000 the Defendant authorised three elephants to be kept in close proximity to “Arna” for a number of hours. The three elephants were then taken away. As a consequence of this act, “Arna” was unreasonably, unnecessarily or unjustifiably abused, tormented, infuriated or inflicted with pain.
2 Section 5(2) of the Act is as follows:
5. Cruelty to animals
(2) A person in charge of an animal shall not authorise the commission of an act of cruelty upon the animal.
3 Section 4(2) provides, inter alia, that an act of cruelty committed upon an animal includes any act or omission as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably inflicted with pain. The definition of pain in s4 provides that pain includes suffering and distress. The claim of the informant was limited to the allegation that Arna was unreasonably, unnecessarily or unjustifiably inflicted with pain as a result of the conduct particularised.
4 At the hearing the defendant admitted the following (a) that it was a corporation; (b) that it was at the relevant time in charge of the animal being Arna; (c) that it authorised three elephants to be kept in close proximity to Arna for a number of hours.
5 At the close of the case for the prosecution, the defendant applied to have the proceedings dismissed on the ground that there was no prima facie case made out by the plaintiff. It is apparent that the learned Magistrate considered that the evidence as it then stood could establish that as a result of Arna having been brought into contact with the other elephants and those elephants having been taken away, Arna became distressed and therefore was inflicted with pain within the terms of the Act. The learned Magistrate however, went on to consider whether or not the offence charged was one of absolute liability, strict liability or “one to which mens rea and knowledge is applied”. The effect of the decision of the learned Magistrate, although somewhat difficult to find, was that means rea was a necessary element of the offence insofar as it was necessary for the prosecution to establish the fact that the bringing of Arna into contact with the other elephants for a short time and then taking them away would cause distress and this was within the knowledge of the defendant. The Magistrate accordingly dismissed the information or it seems said that he proposed to do so, but the matter has proceeded on the basis that the proceedings were dismissed.
6 The grounds of appeal filed in this Court are:
1. The Magistrate erred in finding that the informant had not made out a prima facie case.
2. The Magistrate erred in holding that the plaintiff had to prove that the defendant had intent and knowledge of the act of cruelty in order to establish a prima facie case as against the defendant.
3. The Magistrate erred in holding that s5(2) of the Prevention of Cruelty to Animals Act 1979 was not an offence of strict liability.
7 The attention of the Magistrate was not, it seems, drawn to the decision of Dowd J in Bell v Gunter (unreported 24 October 1997). That decision was a determination of a stated case relating to a prosecution for aggravated cruelty under s6(1) of the Act, but the decision is clearly applicable to offences under s5(1) of the Act and, I consider s5(2). His Honour held that the offences created under the Act were not absolute. He said:
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. In my view the offences created come within the second category enumerated by Gibbs CJ in He Kaw Teh as set out above and do not create absolute offences but also the offences are such that the legislative intention seems clearly not to require a component of mens rea in the proof of the offence.
8 As a matter of comity I should follow that decision unless I considered it clearly incorrect, which I do not. In any event, although not necessary to the decision, the Court of Appeal in Fleet v District Court of NSW & Ors  NSWCA 363 appears to have approved the decision in Bell v Gunter albeit in parenthesis. The appeal being dealt with by the Court of Appeal related to a charge of aggravated cruelty under s6(1) of the Act. The following passage appears in paragraph 48 of the joint judgment of the court:
(Before this Court the claimant chanced his arm and contended that the prosecution had to prove mens rea in the sense of a positive state of mind such as intent, knowledge or recklessness. There is no merit in this submission (see Bell v Gunter, Supreme Court, Dowd J, 24 October 1997, unreported).)
Hodgson JA referred to this in Fleet v District of NSW  NSWCA 25 at pages 46 and 47, but did not really take the matter further.
9 It follows from this the appeal should be upheld and the matter sent back to the Magistrate to be dealt with according to law unless the notice of contention filed by the defendant could be upheld. In that notice the defendant claims that, if the court should hold that the Magistrate erred on the mens rea question then “on the evidence before the Magistrate he could not have been satisfied beyond a reasonable doubt as to the guilt of the defendant”. The case of the defendant on the notice of contention was not argued in those terms. In fact the evidence before the Magistrate was not tendered before me. The case of the defendant on the contention was based upon the particulars, which upon a proper reading, allege that the infliction with pain claimed was a consequence of the three elephants being taken away. It is accepted that there is no evidence as to the circumstances of their removal. Certainly there was no evidence that the defendant, by specific statement or action, authorised their removal. Thus it is said that there is no evidence the defendant authorised the taking away of the three elephants, this being the act of cruelty relied upon. I consider the contention fails. Unless the defendant was in charge of the three visiting elephants or their owner, and there was no evidence or suggestion of this so far as I know, then the defendant could not prevent the removal of the elephants. If an owner of land authorises another person to park his or her car on that land that person cannot in ordinary circumstances be prevented from moving the car from the land. The original authority implies the permission for the subsequent action, or if you like assumes that the subsequent action will take place. The admission of authorisation carries with it the right of removal at least until evidence establishes the contrary. The notice of contention fails.
1. The decision of Magistrate Mr Lyon of 17 May 2002 be set aside.
2. The proceedings be remitted to the said Magistrate to hear and determine according to law.
3. The defendant pay the plaintiff’s costs.
4. The defendant have a certificate under the Suitors Fund Act 1951 if entitled.