The University ofQueensland Law Journal Vol. 15, No.1

Shorter Articles and Notes

A Question of Criminal Guilt - Mens ReaUnder Animal Protection Law

Philip Jamieson*

75

At common law, persons do not incur criminal liability unless theprosecution proves both that a certain state of affairs has beencaused by their conduct and that that conduct was accompanied bya guilty state of mind. Both of these elements (often referred to asthe actus reus and mens rea) of the offence must be proved beyondreasonable doubt by the prosecution. The necessary mental statewhich must accompany the actus reus of the crime may be one ofintention, recklessness or mere negligence. Crimes which do notrequire any such mental state as' to one or more elements in the ac­tus reus are known as offences of strict liability. Such offences' arealmost invariably the creation of statute, where such statutoryprovision displaces the common law presumption of mens rea suchthat none of the possible mental states of intention, recklessness oreven negligence as to one or more elements in the actus reus need beproved by the" prosecution. Legislation exists in all AustralianStates creating offences of cruelty in relation to the ill-treatment ofanimals. l In construing these statutes, the courts appear to haveconstrued offences of cruelty, where created without expressqualification as to any necessary mental state on the part of theoffender, as creating offences of strict liability.

In evaluating this position, the starting point must be the state-ment of Wright J. in Sherras v. De Rutzen2 as follows:

"There is a presumption that mens rea, an evil intention, or a knowledgeof the wrongfulness of the act, is an essential ingredient in everyoffence; but that presumption is liable to be displaced either by thewords of the statute creating the offence or by the subject-matter withwhich it deals, and both must be considered."

This presumption has been frequently restated and .applied inAustralian and English law so that, in a recent decision of theAustralian High Court3, Brennan J. was able to say:

"It is now firmly established that mens rea is an essential element inevery statutory offence unless, having regard to the language of thestatute and to its subject matter, it is excluded expressly or by necessary

*Lecturer in Law, Australian National University.1. Prevention of Cruelty to Animals Act 1920 (W.A.); Animals Protection Act

1925 (Qld.); Cruelty to Animals Prevention Act 1925 (Tas.); Prevention ofCruelty to Animals Act 1979 (N.S.W.); Prevention of Cruelty to Animals Act1985 (S.A.); Prevention ofCruelty to Animals Act 1986 (VicL).

2. [1985] 1 Q.B. 918 at 921.3. He Kaw Teh v. R. (1985) 60 A.L.R. 449 at 480.

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implication ... Earlier doubts as to the existence of the presumption oras to its strength ... have now been removed." 4

It should be noted, however, that in Queensland and WesternAustralia, criminal responsibility does not depend on the doctrineof mens rea. It rests solely upon the terms of the statutory provi­sion, subject to the exculpatory and defence provisions of Chapter5 of the Criminal Code of each State. 5 Section 36 of each of theseCodes applies the provisions of Chapter 5 to all persons chargedwith any offence against the statute law of the respective State.These matters of excuse are available to a person who is chargedwith a statutory offence even where the particular offence makesno reference to a mental element. While the provisions of Chapter 5may be expressly or impliedly excluded in whole or part by laterstatute in creating an offence, the common law doctrine ofexclusion due to the nature of the subject-matter of the legislationha~, t~er~f?~~ no counterpart in these t~o ~tates..Offences ofstrIct lIabIlIty vmay be created only by legIslatIon whIch, whetherexpressly or ti>' necessary implication, excludes the operation of oneor all of theJprovisions of Chapter 5 of their respective Codes.Consequently, it is easier to find the creation of an offence of strictliabVity· in the non-code States than is the case in Queensland orWestern Australia.

Subject to the operation of the Codes of both Queensland andWestern Australia, offences created by statute will fall into one ofthree classes:1. Offences in which, following the common law presumption,

mens rea (consisting of some state of mind, whether of in­tention, recklessness or negligence) must be proved by theprosecution either as an inference from the nature of the actcommitted or by independent evidence.

2. Offences of strict liability in which there is no necessity for theprosecution to prove the existence of mens rea, although theaccused may tender evidence of having acted under an honestand reasonable mistake as to the existence of facts which, iftrue, would have made his act innocent. The onus then lies withthe prosecution to prove that the accused had no such honestbelief or that the belief was not reasonable. 6 /

3. Those of strict liability where no proof of intention,recklessness or even negligence is required as to one or more

4. See also Lim Chin Aik v. R. [1963] A.C. 160 at 172; Warner v. MetropolitanPolice Commissioner [1969] 2 A.C. 256 at 272 (per Lord Reid); Sweet v.Parsley [1970] A.C. 132 at 152 (per Lord Morris); Gammon (Hong Kong) Ltd.v. A-G of Hong Kong [1984] 2 All E.R. 503 at 508; R. v. Turnbull (1944) 44S.R. (N.S.W.) 108 at 111 (per Jordan C.J.); Kain & Shelton Pty. Ltd. v.McDonald (1971) 1 S.A.S.R. 39 at 40 (per Bray C.J .); R. v. McGrath [1971] 2N.S.W.L.R. 181 at 185; Cameron v. Holt (1980) 28 A.L.R. 490 at 493 (perBarwick C.J .), 494 (per Mason J .), 496 (per Murphy J .); Welsh v. Donnelly[1983] 2 V.R. 173 at 182; Hearn v. McCann [1982] 5 A. Crim. R. 368 at 369.

5. See the operation of s.24 of the Queensland Criminal Code with respect to acharge under s.5 of The Animals' Protection Act 1901 (Qld.) in Foreman v.Bowser (1918) 12 Q.J.P. 108.

6. Supra n.3 at 457, 474-5, 492, 499. See further Collett v. Bennett (1986) 3M.V.R.141.

A Question ofCriminal Guilt 77

elements in the actus reus, and it is not open to the accused toshow the existence of an honest and reasonable mistake as tothose elements.

The anti-cruelty statutes of the Australian States embody acurious mixture of mental states which must be associated with theactus reus to found the offence of cruelty. While the statutes ofVictoria, South Australia and Western Australia qualify, to agreater or lesser degree, the offence of cruelty by reference tonecessary mental states on the part of offenders, the statutes ofNew South Wales, Queensland and Tasmania establish the offenceof cruelty without reference to any such requirement of a guiltystate of mind.

While the creation.of the offence of cruelty without reference toa necessary mental state on the part of the offender does not giverise to difficulty in the Code States, the issue is less clear in theother Australian States.

Although there is some authority to the contrary,7 it is suggestedthat it is now firmly established. that "the absence of words such as('knowingly' or 'wilfully'), even if the·words appear in the descrip­tion of offences created elsewhere in the enactment, does not meanthat an offence is intended to be absolute". 8 The precise wording ofthe provision not being decisive of the issue, it is necessary to con­sider the subject-matter with which the statute deals and "whetherputting the defendant under strict liability will assist in the enforce­ment of the regulations".9 If the offence is one of a truly criminalcharacter, "a convicted offender is exposed to obliquy anddisgrace. "10 This consideration will militate against construing theoffence as one of strict liability, the more sq where the gravity ofthe offence is such that it renders the offender liable to a severe(rather than minor) maximum penalty. 11 Moreover, no matter how"grave the mischief at which a statute is aimed may be, thepresumption is that the statute does not impose criminal liabilitywithout mens rea unless the purpose of the statute is not merely todeter a person from engaging in prohibited conduct but to compelhim to take preventative measures to avoid the possibility that,without deliberate conduct on his part, the external elements of theoffence might occur".12

Offences of cruelty are truly criminal in character rendering theoffender liable to a fine or imprisonment for periods which varywith the nature of the offence. While the language creating such anoffence might be silent on the issue of mens rea, consideration ofthe subject-matter of these offences would militate against theirbeing construed as offences of strict liability. In both England andNew Zealand, offences of cruelty defined without reference to any

7. See, e.g., R. v. Strawbridge [1970] N.Z.L.R. 909 at 915.8. He Kaw Teh v. R. (1985) 60 A.L.R. 449 at 501 (per Dawson J.)~

9. Lim Chin Aik v. R., [1963] A.C. 160 at 174.10. He Kaw Teh v. R. (1985) 60 A.L.R. 449 at 453 (per Gibbs C.J .).11. Idem at 453, 473, 492, 502. See further Cameron v. Holt, supra n.4 at 492 (per

Barwick C.J .); Sweet v. Parsley, supra n.4 at 155 (per Lord Morris).12. Supra n.3 at 481 (per Brennan J .). See also at 453, 501 (referring to Lim Chin

Aik v. R. [1963] A.C. 160).

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necessary mental state on the part of the offender have not beenconstrued as offences of strict liability. Australian courts, on theother hand, do not appear to have taken this position.

The English Position

In early English authority, the offeI)ce of cruelty, when definedwithout reference to. any necessary mental state on the part of theoffender, had been held to be one of strict liability. Section 2 of thePrevention of Cruelty to Animals Act 184913 had provided asfollows:

"And be it enacted, that if any person shall, from and after the passingof this Act, cruelly beat, ill-treat, over-drive, abuse, or torture, or causeor procure to be cruelly beaten, ill-treated, over-driven, abused, or tor­tured, any animal, every such offender shall for every such offenceforfeit and pay a penalty not exceeding five pounds."

The corresponding section of the previous Act 14 had containedthe word "wantonly" and in early decisions regarding thisprovision, it had been urged by counsel that its omission from thelater Act rendered it "unnecessary to show a malignantdisposition"}S Two decisions of the late 1870's, Murphy v. Mann­ing16 and Everitt v. Davies17 raise no issue of mens rea. Whether anact is "cruel" within the meaning.of the statute is said to rest solelyon whether pain or torture was inflicted by the act}S If it is, "noone can doubt it is cruel, and that it is to cruelly illtreat, abuse, andtorture the animal"}9 As late as 1899, in Duncan v. Pope,20Lawrance J. (with whom Channell J. agreed) concluded that the"question is, whether there was cruelty in fact", finding that ''themagistrates (had) taken an entirely erroneous view (in considering)whether there was an intention to commit cruelty"21; though thisdoes appear to leave open a construction requiring proof of somemental state (whether of negligence or even recklessness)accompanying the actus reus ofthe offence.

However, as early as 1878 a line of authority was developing inopposition to that originating with Murphy v. Manning and Everittv. Davies. In Powell v. Knight,22 Cockburn C.J. had concludedthat "to· justify a· conviction under this statute the torture of theanimal must have been caused intentionally."23 That "mens rea isan ingredient of the offence" was reiterated in 1883 in Small v ~

Warr24 and again in 1887 in Westbrookv. Field,2s Mathew J.

13. 12 & 13 Viet., c.92.14. 5 & 6 Will. 4, c.59.15. Murphy v. Manning (1877) 36 L.T. 592 at 593.16. (1877) 36 L.T. 592.17. (1878) 38 L.T. 360.18. Idem. at 362; supra n.16 at 594.19. Supra n.16 at 594.20. (1899) 80 L.T. 120. See further Easton v. Anderson 1949 J.C. 1.21. Idem. at 121.22. (1878) 38 L.T. 607.23. Idem at 608.24. (1883) 47 J.P. 20.25. (1887) 51 J.P. 726.

A Question ofCriminal Guilt 79

stating that mere carelessness was not sufficient to establish the of­fence. That same year, Day J. in Lewis v. Fermor26 had concludedthat "[c]ruelty must be something which cannot be justified, andwhich the person who practises it knows cannot be justified".27This was supported by Wills J. who stated:

"No doubt an Act the object of which is to protect animals from crueltyshould be fully administered, but on the other· hand it is most impor­tant, in the interest of the public who are affected by it, that the Actshould receive a fair and reasonable construction, so as not to bringwithin the criminal law people who act honestly and without any evilmind or motive."28

That the offence of cruelty was not one of strict liability, thoughdefined without reference to the necessity of a guilty state of mind,was affirmed in several decisions in the latter part of the nineteenthand early twentieth centuries, both in England29 and in relation tocorresponding legislation in New Zealand.30

The Australian Position

While there is a paucity of case law· on the question, Australiancourts appear to have construed offences of cruelty defined withoutreference to a necessary mental state on the part of the offender asoffences of strict liability. While two Victorian decisions of the turnof the century, Rattray v. McIntyre31 and Hesjord v. Gilliam, 32 didemphasize the element of intention in establishing the offence,these decisions were based upon the Animal Protection Act 1890(Vict.) which specifically defined "cruelty" as ''the intentionalinfliction upon any animal of pain that in its kind or its degree or itsobjects or its circumstances is unreasonable" (emphasis added).

As early as 1910, the New South Wales Full Court in Trenchardv. Ryan33 suggested that the offence under s.6 of the MetropolitanTraffic Act of being the owner of any horse driven in a public streetwhile in a condition which rendered it unfit to be so used, createdwithout reference to any necessary mental state on the part of theoffender, was not one requiring mens rea on the. part of theoffender. However, Cohen J. (with whom Pring and Sly JJ. con­curred) did conclude that "perhaps it would be more correct to saythat the mens rea is supplied by the fact of the defendant allowinghis horse to be used in such an unfit state",34 and "allowing~' itself

26. (1887) 18 Q.B.D. 532.27. Idem at 534.28. Idem. at 535.29. Greenwood v. Backhouse (1902) 86 L.T. 566; Hooker v. Gray (1907) 96 L.T.

706; PotterY. Challans (1910) 102 L.T. 325.30. Tucker v. Hazelhurst (1907) 26 N.Z.L.R. 263; Seed v. Sommervile (1909) 4

M.C.R.20.31. (1900) 6 A.L.R. (C.N.) 69.32. (1898) 4 A.L.R. (C.N.) 90.33. (1910) 10 S.R. (N.S.W.). 618.34. Idem. at 621.

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prima facie involves that mens rea be established.3S Moreover, hisHonour was strongly influenced by the fact that the circumstancesof the offence would be matters of which an owner mightreasonably be expected to have personal knowledge anyway, andnoted the existence of exculpation from liability under s.14 shouldthe owner prove. the breach to be the result of accident orunavoidable by any reasonable efforts on his part.

In 1935, in Exparte Laidlaw; Re Coope,36 the New South WalesFull Court considered a charge under the first limb of s.4(1)(a) ofthe Prevention of Cruelty to Animals Act 1901 (N.S.W.) of having"cruelly ill-treated an animal". Jordan C.J. (with whom Stephenand Havin JJ. concurred) concluded that ''the de facto occurrenceof unnecessary abuse or causing of unnecessary suffering is suffi­cient so long as the suffering is caused by an act which is in factvoluntary and is intended to affect the animal in a way likely tocause suffering."37

Suggesting that this was the sense which had for many years beengiven this provision his Honour found support for his decision intwo further factors. The Act had been earlier amended by the inser­tion of s.4(la) providing that:

"For the purposes of subsection (1) an owner or person in charge of ananimal shall be deemed to have permitted any act or omission herebymade punishable if he shall have failed to exercise reasonable care andsupervision in respect to the protection of the animal therefrom, orfailed to take reasonable steps to prevent the unnecessary suffering ofthe animal."

Such a provision was "inconsistent with the Legislature havingintended that intention should thenceforth become an essentialelement" in the offence before the Court.38 Secondly, while two ofthe matters dealt with by the definition section in relation to theword "ill-treat" were qualified by "knowingly", this was not true ofthe offence in question.

Regarding the first of these factors, it was held in Scott v.Mulhal139 that section 4(IA) had no application to a charge undersection 4(1)(f) where inter alia the owner or person in charge of ananimal "fails to provide such domestic or captive animal withproper and sufficient food", for the provision was drafted "for thepurpose of getting over certain difficulties with regard to 'permit­ting acts or omissions' . . . it is in relation to such things as thatthat the very clear words of the (section) have been made toapply."40 While in Clark v. Madden,41 s.4(IA) was applied to a

35. Chappell v. A. Ross & Sons Pty. Ltd. [1969] V.R. 376 at 381; Gilbert v.Gulliver [1918] V.L.R. 185 cf. Ferrier v. Wilson (1906) 4 C.L.R. 785 at 790 (perGriffith C.J.), 800 (per Isaacs J.); though see Barton J.'s comment that he had"great difficulty in coming to the conclusion that the owner can be said to haveallowed [he proscribed act to happen-here, the falling of material into water]unless he has some knowledge of the matter" (at 794).

36. (1935) 52 W.N. (N.S.W.) 184.37. Ibid.38. Idem. at 185.39. (1946) 64 W.N. (N.S.W.). 15.40. Idem at 16.41. [1964] 82 W.N. (Pt. 1) (N.S.W.) 256.

A Question ofCriminal Guilt 81

charge under .the second limb of s.4(1)(a) of "being the owner orperson in charge who permits or suffers to be cruelly ill-treated anyanimal", the judgment of Maxwell J. in Scott v. Mulhall would sug­gest that it would have no application under the first limb ofs.4(1)(a) of "cruelly ill-treats or causes or procures to be ill-treatedany.animal", wherein there is no reference to having "permitted"the ill-treatment in question. Jordan C.J. in Ex parte Laidlaw; ReCoope, considering ·a charge under this first part, could not,therefore, have found support for his conclusion that intention wasnot necessary in establishing the offence from the insertion ofs.4(lA).

As to the second of these factors, the absence of a word such as"knowingly" has induced the courts, on occasion, to conclude thatmens rea was not a necessary element of the offence,42 especialiywhere this word has been used in other provisions creating offencesunder the legislation.43 However, it has already been noted that theabsence of words such as "knowingly", even if the words appear inthe description of offences created elsewhere in the legislation, doesnot necessarily imply that an offence is intended·to be one of strictliability. The precise wording of the provision not being decisive, itis necessary to consider the subject-matter with which the legisla­tion deals.

However, this second factor drawn by Jordan C.J. in support ofhis decision has more force if his reference to the necessity to proveinter alia an intention "to affect the animal in a way likely to causesuffering" is construed as requiring proof of some degree of mentalstate on the part of the offender, whether of negligence or evenrecklessness. Such a construction might also be given to the judg­ment of Cohen J. in Trenchard v. Ryan in his reference to areasonable expectation of knowledge by the owner of the cir­cumstances of the offence having strongly influenced his decision.

The decision of Morris C.J. in the Supreme Court of Tasmaniain .William Holyman & Sons Pty Ltd v. Eyles 44 is perhaps open toa similar construction in that his Honour. concluded very broadlythat under the Protections of Animals Act 1911 (Tas) "it is wellestablished that it is not necessary that the person causing sufferingshould intend to be cruel, provided that he intends the acts whichcause the suffering".45

However, more recent decisions·of the Australian courts are notso easily construed as to avoid the implication that offences ofcruelty defined without reference to a necessary mental state on thepart of the offender are offences of strict liability. In 1983, in Vic­torian Railways Board v. Snowball,46 Marks J. in the SupremeCourt of Victoria, considered an information alleging acts of cruel­ty in the defendant's having inter alia conveyed a horse in such a

42. See, e.g., Foster v. Aloni [1951] V.L.R. 481; August v. Fingleton [1964]S.A.S.R. 22 at 25.

43. See, e.g., Cundy v. Le Cocq (1884) 13 Q.B.D. 207 at 209 ("knowingly"); Greenv. Sergeant [1951] V.L.R. 500 at 504 ("wilfully").

44. (1947) Tas S.R. 11.45. Idem. at 17.46. [1983] 1 V.R. 689.

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manner or position as to subject it to unnecessary pain or sufferingor which involved unnecessary pain or suffering. These particularsof cruelty arose out of specific acts amounting to cruelty detailed ins.4(1) (d) and (f) respectively of the Protection ofAnimals Act 1966(Vict.). Neither of those provisions specified any necessary mentalstate on the part of the offender. Marks l. concluded that while "itis true that proof of a number of the acts of cruelty alleged in theinformation required proof of 'knowledge' and perhaps in one ormore instances some form of "mens rea" (this could) not ... besaid in relation to the acts comprising (these two) particulars".47

His Honour further suggested that it "is clear enough from Christiev. Bruce, [1962] V.R. 654 that some acts of cruelty ... requiremore proof of facts without proof of knowledge or other state ofmind on the part of the defendant".48 However, in Christe v.Bruce, Herring C.l. had introduced an element of proof ofnegligence49 in concluding that on a charge of cruelty in having in­flicted upon any animal pain that in its kind or degree or its objector its circumstances is unreasonable, only two things had to be pro­ved to support a conviction:(1) that pain and suffering were inflicted in fact;(2) that it was inflicted cruelly, that is, without good reason.

A Middle Ground ofLiability

The Australian case law, to the extent that it suggests that theoffence of cruelty when defined without reference to any necessarymental state on the part of the offender is an offence of strictliability, is clearly inconsistent with the approach taken to this issuein both England and New Zealand. It is also difficult to reconcilewith recent statements by the High Court of Australia as to thepresumption of mens rea in the absence of its rebuttal expressly orby necessary implication. No Australian. decision on the anti­cruelty laws appears to have given consideration to the existence ofthis presumption or its rebuttal. Even so, it is possible to propose areconciliation, at least in part, of these inconsistencies.

This reconciliation, in the form of a middle ground of liability,was suggested by Gibbs C.l. in He Kaw Teh v. R.sO who statedthat, although "it is held that guilty knowledge is not an ingredientof an offence, it does not follow that the offence is an absolute one.A middle course . . . is to hold that an accused will not be guilty ifhe acted under an honest and reasonable mistake as to the existence

47. Idem at 696.48. Ibid.49. See further Colin Howard, "Strict Responsibility in the High Court of

Australia" (1960) 76 Law Quarterly Review 547 at 566. Such considerationshave naturally been evident where the offence, though created withoutreference to a necessary state of mind, has been otherwise qualified as to thecircumstances in which it may arise: Backhouse v. Judd [1925] S.A.S.R. 16;Martin v. Carpenter [1925] S.A.S.R. 421; Page v. Martin [1934] S.A.S.R. 265;Goldsworthy v. Lyons [1935] S.A.S.R. 7; Morgan v. Masters [1981] 25S.A.S.R.128.

50. (1985) 60 A.L.R. 449 at 455.

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of facts, which, if true, would have made his act innocent". In HeKaw Teh v. R.,51 Wilson J. (although dissenting in this finding)held that the offence of importation of a prohibited import unders.233B(I)(b) of the Customs Act was such an offence, althoughtruly criminal in character and rendering the offender liable to thehighest penalty that may be imposed under the law.

Support for the adoption of this middle ground of liability inrespect of offences of cruelty defined without reference to anynecessary mental state on the part of the offender may be derivedfrom the interpretation which has been given in New Zealand to theoffence of cruelty in having omitted, being the owner or person incharge of an animal, to have supplied the animal with proper andsufficient food, water and shelter. In Linssen v. Hitchcock,52Edwards J. held that the offence fell within that class of offences inwhich it was not necessary for the prosecution to prove a guiltystate of mind, the commission of the act· itself prima facie import­ing the offence, although it was open to the accused to dischargehimself by proving to the satisfaction of the tribunal which trieshim that in fact he had not a guilty mind.

Since the decision in Woolmington v. D.P.P.,53 "it is for theprosecution to prove beyond reasonable doubt the elements of acrime, including any mental element".54 In New Zealand, in the1975 decision of MacKenzie v. Hawkins,55 Casey J. concluded thatLinssen v. Hitchcock was to be interpreted in the light of Woolm-ington, as requiring that mens rea was an ingredient of the offence,the onus remaining on the prosecution throughout to establish itsexistence. However, in 1970, the New Zealand Court of Appeal inR. v. Strawbridge56 had held that the impact of Woolmington hadbeen to place this class of offence within this "half-way house" ofliability - there is no necessity for the prosecution to prove mensrea, "it lies on the accused to point to some evidence which creates areasonable doubt that he. did not have a guilty mind." 57 In He KawTeh v. R., Wilson J. (although dissenting in finding that theoffence of importation of prohibited imports before the Court wasan offence within this ·middle ground) made reference to thedevelopment of this second category of offence in the law of NewZealand "most persuasively demonstrated in the decision inStrawbridge",58 before concluding that the offence before theCourt fell within. this category and adopting "with one qualifica­tion" the effect given that class of offence which placed the burdenof proof upon the accused prior to Woolmington's case:

"The qualification is that the word 'prove' ... should not in this con­text be understood to mean any more than to 'adduce evidence of'. Inother words, the effect ... is to transfer the evidential burden, the

51. (1985) 60 A.L.R. 449.52. (1915) 34 N.Z.L.R. 545.53. [1935] A.C. 462.54. (1985) 60 A.L.R. 449 at 498 (per Dawson J .).55. [1975] 1 N.Z.L.R. 165.56. [1970] N.Z.L.R. 909.57. Id. at 915.58. (1985) 60 A.L.R. 449 at 471.

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burden of adducing evidence, from the prosecution to the defence. Itthen remains on the prosecution to rebut that evidence to the satisfac­tion of the jury beyond a reasonable doubt".s9

In MacKenzie v. Hawkins, although Casey J. had in fact referredto the decision in R. v. Strawbridge, he did not consider it asdemonstrating the existence of a class of offence "of strict liabilitywhich, whilst not requiring the prosecution to prove mens rea inorder to make out a case, allows the accused to raise honest andreasonable mistake by way of exculpation".60 It is suggested that,in this respect, his Honour wrongly construed the nature of thedevelopment of this "half-way house"· of liability in applyingWoolmington-s case to the decision in Linssen v. Hitchcock.. Theoffence of omitting to supply proper and sufficient food, water andshelter before the Court in that case, found by Edwards J. to castthe onus of proof upon the accused, would now be held to fallwithin this "half-way house" of liability.

·Such a conclusion is not inconsistent with the Australian case lawregarding offences of cruelty defined without reference to anecessary mental state 'on the part of the offender. It may well bethat such an offence would be interpreted in the non-CodeAustralian States consistently with the existing Australian case lawas one within this middle ground of liability - an offence arisingirrespective of the mental state of the offender as to one or moreelements of the actus reus, with the caveat that he or she may raisehonest and reasonable mistake by way of exculpation.

In He Kaw Teh v. R., Wilson J. noted that the adoption of this"half-way house" of liability has "the merit of bringing the commonlaw in Australia on the question of honest and reasonable mistakeinto line with the law in the Code States" of Australia. 61 It issuggested, however, that such a conclusion may focus ''too muchon the concept of absolute liability ... instead of going back tofirst principles and requiring knowledge to be proved against the(offender) on the basis that mens rea is a constituent part of everycriminal offence unless Parliament has unequivocally excludedit." 62

IT IS FELT THAT AUSTRALIAN COURTS SHOULD APPLY THE PRESUMP­TION OF mens rea to an offence of cruelty defined without referencetoa necessary mental state. The language being equivocal regardingthe rebuttal of that presumption, there is nothing in the subject­matter of such an offence which displaces that presumption.

59. Idem at 474.60. Idem at 497 (per Dawson J.).61. Idem at 475.62. Collett v. Bennett, supra n.6 at 145 (per Zelling J.). Although this comment

was given on the issue of having "permitted" a particular state of affairs, it is acriticism of broader application.