Pearson v Janlin Circuses Pty Limited [2002] NSWSC 1118

New South Wales Supreme Court

CITATION : Pearson v Janlin Circuses Pty Limited [2002] NSWSC 1118 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11632 of 2002 HEARING DATE(S) : 21 November 2002 JUDGMENT DATE : 25 November 2002

PARTIES : Mark Pearson (Plaintiff) Janlin Circuses Pty Limited trading as Stardust Circuses (Defendant) JUDGMENT OF : Windeyer J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Lyon JUDICIAL OFFICER :

COUNSEL : Mr H Dhanji (Plaintiff) Mr R Toner SC with him Mr B Haverfield (Defendant) SOLICITORS : Friend & Co (Plaintiff) T P Boyle & Associates (Defendant) CATCHWORDS : CRIMINAL LAW - statutory offence - appeal from a decision of a magistrate sitting in the local court - whether an offence of strict liability or proof of mens rea required - Prevention of Cruelty to Animals Act 1979 LEGISLATION CITED : Prevention of Cruelty to Animals Act 1979, s4(2), s5(2) Suitors Fund Act 1951 CASES CITED : Bell v Gunter (unreported Dowd J 24 October 1997) Fleet v District Court of NSW & Ors [1999] NSWCA 363 DECISION : See paragraph 10

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WINDEYER J

Date

11632/02 MARK PEARSON V JANLIN CIRCUSES PTY LIMITED T/AS STARDUST CIRCUS JUDGMENT 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: ALLEGED OFFENCE 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