2 Matter remitted to the Court of Petty Sessions for rehearing by a magistrate.

1 The respondents were members of a group of people who were found to be in the Walls of Jerusalem National Park on the relevant day, accompanied by horses or dogs, and in some cases both. This National Park is "reserved land", within the meaning of s15(6) of the National Parks and Wildlife Act 1970 (No 47 of 1970), being land within a conservation area proclaimed under s15(1) of the same Act. The respondents were each charged with a breach of reg4 of the National Parks and Reserves Regulations 1971 (Statutory Rules 1971, No 240), which provides:-

"4(1) Except with the permission of the managing authority, no person, being the owner or immediate keeper of -

(a) any dog or cat;

(b) any stock; or

(c) any rabbit, hare, or ferret,

shall permit the same to be in or remain on any reserved land.

(2) Sub-regulation (1) of this regulation does not prohibit any person from keeping stock on Crown land in pursuance of a private right."

The word "stock" is defined by s2 of the regulations as "stock within the meaning of the Stock Act 1932". A horse is "stock".

2 The complaints were heard together. At the end of the prosecution evidence the respondents submitted that there was no case to answer, on the ground that it was essential for the prosecution to prove that the respondents knew that the animals were at the relevant time on reserved land, and there was no sufficient proof of that. The learned magistrate upheld the submission and dismissed the complaints. Thereupon, the appellant (complainant) moved to have the magistrate's decision reviewed under s107 of the Justices Act 1959. The motion to review was heard by his Honour the Chief Justice and dismissed. That decision is now on appeal before this court.

3 The principles governing the question whether particular statutory offences conform with the general principle of criminal responsibility that proof of mens rea is essential to proof of guilt have frequently occupied courts of highest authority in England, Australia and elsewhere in recent years. Two tendencies have emerged which are worthy of mention relative to the present case. These are:-

(1) In the High Court of Australia there has been over a period of time some difference of emphasis in relation to the strength of the presumption that mens rea is an essential ingredient of proof of a statutory offence of the modern regulatory kind, which is not "truly criminal in character"; and

(2) some divergence has developed between the approach of the courts in England and Australia in respect of what may be called for simplicity, "the defence of honest and reasonable mistake".

4 In relation to the first of these, one may refer to Proudman v Dayman [1941] HCA 28; (1943) 67 CLR, 536, in which Dixon J (as he then was) said (pp540 and following):-

"There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also. Doubtless over a wide description of legislation the presumption in favour of its application is but a weak one: see Maher v Musson [1934] HCA 64; (1934) 52 CLR 100; Thomas v The King [1937] HCA 83; (1937) 59 CLR 279........."

More recent cases in the Privy Council and the House of Lords in England and the High Court of Australia, however, have reaffirmed the strength of the primary presumption that establishment of mens rea is essential to proof of any such offence unless examination of the provision in question shows that the presumption must be regarded as having been displaced. In He Kaw Teh v The Queen [1985] HCA 43; (1985) 59 ALJR, 620 at p622, Gibbs CJ, in reference to the development said this:-

"There has in the past been a tendency in Australia to regard this presumption [ie that mens rea is an essential ingredient in every offence - my interpolation] as only a weak one at least in the case of modern regulatory statutes: Proudman v Dayman (supra); Bergin v Stack (1953) 88 CLR, 246 at 261. However, the principle stated in Sherras v De Rutzen has more recently been reaffirmed in the Judicial Committee in the House of Lords (Lim Chin Aik v The Queen (supra); R. v Warner (1969) 2 AC 256 at 272 and _Gammon Ltd v A-G. of Hong Kon_g (1984) 3 WLR 437 at 441; (1984) 2 All ER 503 at 507; and in this Court: Cameron v Holt [1980] HCA 5; (1980) 142 CLR, 342 at 346, 348"

Nevertheless, given that the strength of the presumption must be regarded as unabated even in the modern regulatory type of quasi-criminal offence, that is the area in which instances are most likely to be found of the presumption being displaced.

5 The second tendency may be illustrated in a summary way for the present purpose by reference to the following passage from Lord Diplock's speech in Sweet v Parsley [1969] UKHL 1; (1970) AC 132, in which his Lordship said (pp163-4):-

"It may well be that had the significance of Reg v Tolson (1889) 23 QBD, 168 been appreciated here, as it was in the High Court of Australia, our courts, too, would have been less ready to infer an intention of Parliament to create offences for which honest and reasonable mistake was no excuse. Its importance as a guide to the construction of penal provisions in statutes of general application was recognised by Dixon J in Maher v Musson [1934] HCA 64; (1934) 52 CLR, 100, 104, and by the majority of the High Court of Australia in Thomas v The King (supra). It is now regularly adopted in Australia as a general principle of construction of statutory provisions of this kind. By contrast, in England the principle laid down in Reg v Tolson (supra), has been overlooked until recently .............................."

6 It is also noteworthy that in many of the modern authorities, even where it is clear that mens rea is an essential ingredient in proof of the offence, the meaning of that expression and its application in the context is often a matter of difficulty, and has occasioned frequent discussion. Much of the content of the judgments in He Kaw Teh v The Queen (supra), is occupied with it - see particularly the opinions of Gibbs CJ and Brennan J That matter, however, is not a problem in this appeal.

7 As to the present regulation, the question was whether the prosecution was obliged to prove that the respondents knew at the relevant time that the land in question was reserved land, in order to establish a prima facie case against them, respectively. Both judicial determinations in the case so far have held that this is necessary, and so there has been no need to make a determination whether an honest and reasonable belief on the part of the respondents in a state of fact which if true would make their actions innocent (eg, a mistaken belief that the land was not reserved land) would afford them a defence. The first issue to be considered is whether the language of the regulation is such as to confirm or displace the presumption that proof of mens rea is an essential ingredient. If it is, that ends the matter. The learned Chief Justice took the view that use of the word "permit" in the formulation, "permit the same to be in or remain on any reserved land", on its true interpretation required that the prosecution should prove that the permission extended to and embraced the fact that the land was reserved land. That is to say, his Honour held that the offender must be shown to have voluntarily and intentionally countenanced the animal being on land which he then knew was reserved land. He distinguished the case of Proudman v Dayman (supra), principally upon the basis that the formulation in the present case indicated the opposite result, from that indicated therein. With great respect, I am not able to agree with that view. In my opinion, the formulation under review, properly interpreted, should lead to the same result as in that case.

8 In Proudman v Dayman, I think the judgment of Dixon J on the relevant point turned upon the scope of the concept of permitting, rather than upon the formulation of words in which the concept was used. That is to say, that which was permitted was the act of driving a motor vehicle on a public road. The act of permission in its ordinary connotation did not go beyond that. The words "not being the holder of such a licence" constituted, as his Honour said, a negative qualification upon the word "person", and operated to exclude persons so licensed from the class who may not be permitted to drive. His Honour continued by saying:-

"There is nothing in the language of the section to suggest that the consent must be directed to the failure of the driver to hold a licence, and the form in which the section is cast indicates the contrary. It is the driving which must not be permitted, that is, unless the driver holds a licence."

I think his Honour meant by that, for example, that the section might have been formulated, "employs or permits any person whom he knows to be not the holder of such a licence to drive a motor vehicle, etc". Such a formulation would by its terms have extended the idea of knowledge which is inherent in the word "permit" to the failure of the driver to hold a licence.

9 In the present case, the formulation is, "No person ... shall permit the same to be in or remain on any reserved land". Knowledge of the thing permitted is inherent in the word "permit". But what is permitted? The act of permission extends to allowing or countenancing the prescribed animal to be on a given area of land. That the land should be reserved land so as to make the regulation relevant is a qualification which is external to the act of permission. I am of opinion that the line of reasoning which Dixon J followed in Proudman v Dayman is equally applicable in the present case, and leads to the result that use of the word "permit" is not decisive of the question whether some form of mens rea must be proved by the complainant in order to establish the offence. It is a case where, since the regulation is silent as to whether or not mens rea must be proved, wider considerations must be taken into account in order to decide the question.

10 The judgment of Wright J in Sherras v De Rutzen (1895) 1 QB 918, contains the formulation so often cited, namely:-

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered." (Ibid at p921).

I have already expressed the opinion that the "presumption' has not been displaced by the "words of the statute creating the offence". The other question is whether the presumption is to be regarded as displaced by "the subject-matter with which it deals". Recent authorities have examined and extrapolated that consideration a good deal. Brennan J in He Kaw Teh's case (supra), at p638, cited the useful formulation from the judgment of the Judicial Committee in Gammon Ltd v A-G of Hong Kong (supra), in which the following propositions were stated:-

"(1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

"The fourth proposition, if I may say so with respect, seems to be too categorical an approach to what is, after all, a question of statutory interpretation. It is not possible to decide that mens rea can be excluded only where the subject-matter answers a given description (even so general a description as 'an issue of social concern'), without regard to the whole of the statutory context." (Ibid at p638).

With respect, I agree. However, taking the other propositions in turn; the first three in relation to the present case are easily applied. The offence which this regulation sets up is certainly not "truly criminal" but on the contrary is "regulatory" merely. No public condemnation or stigma are attendant upon conviction, as with a truly criminal offence - see per Lord Reid in Sweet v Parsley (supra), at p149. The nature of the subject-matter is to be distinguished at once from, for example, that involved in He Kaw Teh's case (importation of dangerous drugs). The subject-matter is concerned with promoting the public welfare in relation to ecological conservation, and regulates an activity in which people may choose whether they participate or not. In addition it is a subject-matter in respect of which the person who chooses to participate, if an absolute or near-absolute obligation of this kind is to be imposed, can certainly take steps to ensure his own immunity from the reach of the regulation and promote its observance - see also, Lim Chin Aik (supra), at p714. He Kaw Teh v The Queen (supra), per Brennan J at p639.

11 A person who contemplates taking an animal or animals of the prescribed kind upon land which is not his, and of the ownership of which he is unsure, can and should take steps to find out who does own it. The first thing to ascertain is whether it is private land or Crown land. If it is private land, presumably he would not take animals on it without permission. If it is Crown land, then, leaving aside whatever general rights he may or may not have to enter it at will, with or without animals, since ignorance of the law is no excuse he will be presumed to know at least that certain Crown lands are reserved land within the meaning of the National Parks and Wildlife Act 1970, and that a permit is needed before certain animals are taken on such reserved land. He can and should take steps to find out whether the land on which he proposes to take the animals is reserved land or not.

12 The converse of the latter proposition is that in most cases it would be exceedingly difficult for an officer of a conservation authority to be able to prove that a person who had taken a prescribed animal upon reserved land knew at the time that it was reserved land. To hold that such a requirement is essential for proof of the offence would render the regulation in substance nugatory. This is an important consideration. In He Kaw Teh's case, their Honours considered it in relation to an offence which was criminal in a real sense, and they thought that it should not be inordinately difficult to prove that a person who brought a case containing heroin into Australia knew that heroin was present in it. With the regulation under review, however, proof that the person knew the land was reserved land would be practically impossible unless he admitted that he knew. In many cases of course the person would not have taken steps to find out, and would not know.

13 It appears to me that all of these considerations lead strongly to the conclusion that the legislative effect of the regulation is to exclude the presumption that mens rea is required to be proved in the form of knowledge that the land is reserved land. It is not necessary to examine in this appeal the questions whether some alternative or lesser form of knowledge may constitute required mens rea, or whether an honest an reasonable belief in a state of affairs which if true would make the act innocent would provide a defence. The established tendency of the law in Australia, however, seems to leave little doubt that to hold such an honest and reasonable belief would be exculpatory - Proudman v Dayman, Maher v Musson (supra), Sweet v Parsley (supra), per Lord Diplock at p164; and see the helpful summary of the applicable principles by Brennan J in He Kaw Teh's case (supra), at p645.

14 For the above reasons, the appeal in my view should succeed, and the matter should be remitted to the Court of Petty Sessions for rehearing by a magistrate.

15 The sole question is whether the following ground of appeal should be upheld:

"(1) The Learned Judge erred in law in holding that an essential ingredient of the offence created by Regulation 4 of The National Parks and Reserves Regulations 1971 was that the respondent knew that he permitted the animal to be in or remain on was reserved land;"

16 As a result of the decision of the High Court in He Kaw Teh v The Queen (1985) 59 A.JR 620 the following proposition stated in Sherras v De Rutzen (1895) 1 QB 918 at 921 has been firmly reinforced at the level of basal principle:-

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

17 Thus the principle requires us, when considering whether the presumption that guilty knowledge is an essential ingredient of the offence has been displaced, to consider the words of the statute creating the offence. I find that aspect of the matter important in this case. The regulation does not say "no person .... shall permit the same to be in or remain on any reserved land, he knowing the land to be reserved land". I do not doubt that you cannot correctly be said to have permitted animals to be on a piece of land, unless you knew the animals were there or at the least you created a state of affairs which rendered it probable that they would go there. But you can permit animals to be on reserved land without knowing that the land has that character in law; it may be sufficient that you permitted them to be at the relevant place, that place then being shown by other evidence to have that legal character.

18 The primary purpose of this regulation is to avoid damage in reserved areas. That being so, it is a law analogous to some of the cases referred to as exceptions to the general principle by Wright J in Sherras v De Rutzen (supra). That primary purpose would not be adequately achieved if the prosecution could not make out a case to answer against an alleged offender without showing that he knew that the land in question had the legal character of reserved land. It has long been the practice to recognise strict or absolute offences in this quasi-criminal regulatory area (see Lord Reid: Sweet v Parsley [1969] UKHL 1; (1970) AC 132 at 149). There is a strong contrast between a provision of this kind and a provision which is truly part of the criminal law. A conviction under this provision would fall far short of branding a person a criminal although it may be a step above the parking offences. The following proposition stated by Lord Pearce in Sweet v Parsley (supra) at p156 is very relevant:-

"Before the court will dispense with the necessity for mens rea it has to be satisfied the Parliament so intended. The mere absence of the word 'knowingly' is not enough. But the nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge."

The bearing of that observation on this case is in favour of the view that the court should not find that knowledge in the offender of the legal status of the land is an ingredient of the offence to be proved by the prosecution as a condition of making out a prima facie case. To place that hurdle in the path of the prosecution would mean that many prosecutions with merit would fail. Because of the character of many areas of reserved land it is obviously difficult to detect offenders and, presumably, in many cases, virtually impossible to prove knowledge in the defendant of the relevant status of the land in the absence of an admission (cf Reg v Woodrow, [1846] EngR 620; 15 M & W 404 at 417). This is the type of case where strict liability will promote the objects of the relevant legislation, that is the National Parks and Wildlife Act 1970 (for the relevance of that see Gammon (Hong Kong) Ltd & Ors v Attorney-General of Hong Kong [1984] 2 All ER 503 at 508; Lim Chin Aik v R [1963] AC 160 at 174; The Queen v Strawbridge [1970] NZLR 909 at 910).

19 This decision by this Court should not produce any injustice in prosecutions of this kind. On the contrary it will avoid the injustice of prosecutions failing which, in the public interest, ought to succeed. Any risk of injustice can be avoided if the regulation is treated as creating "strict liability" as distinct from "absolute liability" within the meaning of those terms as used by Dawson J in He Kaw Teh (supra) at p649. That is to say, the prosecution does not have to prove as part of its case that the defendant knew that the land in question was reserved land. But the defendant may produce or refer to evidence tending to show that he was honestly and reasonably mistaken on the question whether the land in question was reserved land. Of course, if he did not know that it was reserved land because he could not care less whether he was offending or not then he ought to be convicted (cf Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 at 538-9). But a responsible citizen who makes appropriate enquiries as to whether he is in a reserve and, for some reason, is honestly and reasonably mistaken about that fact will have a defence. To be precise about it, I should quote the following passage from the reasons of Gibbs CJ in He Kaw Teh at p623:-

"These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent."

20 As a result of He Kaw Teh's case it is now clear that the prosecution will carry the ultimate burden of proving beyond reasonable doubt that the defendant's act was not innocent in the relevant sense. In view of a submission which was made in the hearing before the single judge I should add that a mistake as to whether a given piece of land is inside or outside of the reserve boundary is a question of fact.

21 A long line of Australian cases show that this should be treated as a strict liability type of case and not absolute liability (see Maher v Musson [1934] HCA 64; (1934) 52 CLR 100 at 104-5; Thomas v The King, [1937] HCA 83; (1937) 59 CLR 279 at 303; Proudman v Dayman (supra) at p540; Kain & Shelton Pty Ltd v McDonald (1971) 1 SASR 39 at 43; Mayer v Marchant (1973) 5 SASR 567 at 568-569; He Kaw Teh at pp623 and 649). The following extract from the decision of Bray CJ in Kain & Shelton v McDonald (supra) at pp43-4 explains the position:-

"It is now, in my view, firmly established in Australia that, even in a case where it is not necessary for the prosecution to prove mens rea, the defendant is none the less entitled to acquittal if he acted under an honest and reasonable mistake of fact, that is, if he had 'reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe' (Proudman v Dayman per Dixon J as he then was at p541) .............................................

Of course, Parliament can exclude this defence if it wants to, but, extraordinary and unusual cases apart, I see no reason why it should be presumed to have excluded it unless it expressly says so."

22 The appeals should be allowed and an order made that the complaints be re-tried by a magistrate.

23 This matter concerns ten separate notices of appeal. All notices of appeal are identical except for the identity of the respondent and by agreement were treated as one appeal. Each appeal is from an order of dismissal of a motion to review the decision of a magistrate.

24 All ten respondents were charged upon complaints which alleged that each had committed a breach of regulation 4(1)(b) of the Regulations made under the National Parks and Wildlife Act 1970. Two of the respondents were additionally charged with a breach of regulation 4(1)(a) of the same regulations and one was also charged with breaches of regulation 3(1)(a) and 3(1)(b).

25 By agreement the learned magistrate heard all matters of complaint together. At the conclusion of the evidence for the complainant counsel for the defendants made a submission that there was no case to answer. The learned magistrate upheld that decision and dismissed the complaints. On the 27th of November 1985 notices of motion to review that decision were dismissed by the learned Chief Justice and from that decision these appeals were brought.

26 Argument before the magistrate and the Chief Justice and their respective judgments were confined to a consideration of reg4(1)(a) and 4(1)(b). Similarly, argument before this court was also confined to those regulations. No reference was made to reg3, which unlike reg4 does not contain the word "permit". Regulation 3 describes offences by reference to external elements only without the use of any word [except perhaps "possession"] which would indicate the relevance of the existence of any particular state of mind.

"4(1) Except with the permission of the managing authority, no person, being the owner or immediate keeper of -

(a) any dog or cat;

(b) any stock; or

(c) any rabbit, hare, or ferret,

shall permit the same to be in or remain on any reserved land."

The single ground in each notice of appeal as amended was:-

"The learned judge erred in law in holding that an essential ingredient of the offence created by regulation 4 of the National Parks and Reserves Regulations 1971 was that the respondent knew that the land which he permitted the animal to be in or remain on was reserved land."

28 It was not in dispute that at the relevant time each of the respondents was the owner of stock as defined by the regulations, or a dog (and in two cases both) and that each permitted the same to be in reserved land namely, the Walls of Jerusalem National Park. The learned magistrate made a finding which was not challenged that there was no evidence that any of the respondents knew that the animals were in reserved land. He held proof of such knowledge was an essential ingredient in the statutory offence and accordingly ruled that there was no case to answer.

29 The question for determination is whether knowledge by each respondent that the land was reserved land is, by implication, a necessary element in the regulatory offence described by reg4(1) of the National Parks and Reserves Regulations 1971. It is a question of statutory interpretation. The first consideration is whether the words of the regulation are such as to require proof of knowledge of the existence of all or some of the matters of fact which constitute the offence. The regulation makes it an offence to permit certain animals, "to be in or remain on any reserved land". The word "permit" connotes knowledge. Knowledge of or at least advertence to the act permitted must exist before it can be said that permission for the act has been given. Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; Sweet v Parsley [1969] UKHL 1; [1970] AC 132 at 162; James and Son Ltd v Smee [1955] 1 QB 78.

30 What then is the act to which the permission is directed? In Proudman v Daymen (supra) Dixon J held that the act to which the permission was directed was the act of driving and the status of the driver was a matter external to the act permitted. In that case the fact that the driver was unlicensed was not affected by the granting or withholding of permission. The status of the driver was unrelated to the act permitted which was the driving of the motor vehicle. With great respect to the learned Chief Justice who took a contrary view, I am of the opinion that the reasoning in Proudman v Dayman is applicable to an interpretation of reg4. The act to which permission is directed by that regulation is the presence or continuing presence of certain animals in a particular place. The status of the place namely reserved land, is external to the act permitted and is unrelated to that act. In his reasons for judgment the learned Chief Justice said at p7:-

"The statutory provision which was being considered in Proudman v Dayman made it an offence for a person to permit 'any person' who did not fall into the category of a licensed driver to drive a motor vehicle. But regulation 4 does not make it an offence to permit one of the specified animals to be in or remain on 'any land' unless that land is not reserved land; the offence is simply permitting one of the specified animals to be in or remain on reserved land. That legislation which was considered in Proudman v Dayman made the act of driving a motor vehicle unlawful unless the driver was licensed so that any person who permitted another person to drive a motor vehicle would have known that the act of driving which he was permitting was unlawful unless that other person was a licensed driver. By contract, there is no general prohibition against taking one of the specified animals on to land in Tasmania and a person who permits such an animal to be in or to remain on land is not put on notice that prima facie he is committing an offence unless some licensing requirement is satisfied."

31 In my respectful view, such reasoning overlooks the basis of the judgment of Dixon J in Proudman v Dayman on this question. There his Honour was concerned to ascertain the act to which the permission had to be directed rather than the form of words used to describe that act. No significance was attached to the form of expression "permits any person not being the holder of such a licence to drive a motor vehicle ........". His Honour's reasoning would have been equally apposite had the statute in that case expressed the offence in the words, "permits a person who is not the holder of such a licence to drive a motor vehicle ........".

32 The word "permit" in reg4 relates to the presence of animals in a particular place and not the status of that place. The absence of any word such as "knowingly" which of necessity, would make knowledge that the land was reserved land an element in the offence gives rise to a second consideration. Did the legislature by inference, intend proof of such knowledge to be a pre-requisite of guilt?

33 The decision of He Kaw Teh v The Queen (1985) 59 A.JR 620 has put beyond doubt the proposition that when a statute creates and defines an offence only by reference to its external elements a mental element is usually implied in the definition but

(b) the nature of the mental element will not be the same in every case.

34 Regard must be had to the language of the statute and its subject-matter. He Kaw Teh v The Queen (supra) at 638; Sherras and De Rutzen [1895]1 QB 918 at 921. The matter was expressed in Gammon (Hong Kong) Ltd v Attorney-General [1984] 2 All ER 503 at 508 in the following terms:-

"1 There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence.

2 The presumption is particularly strong where the offence is 'truly criminal' in character.

3 The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute.

4 The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue.

5 Even where a statute is concerned with such an issue the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

35 In Wings Ltd v Ellis [1984] 3 All ER 577 Lord Scarman at 589 referred to that passage in Gammon (Hong Kong) Ltd v Attorney-General and said:-

"At the end of the day the question whether an offence created by statute requires mens rea, guilty knowledge or intention, in whole, in part, or not at all, turns on the subject-matter, the language and the structure of the Act studied as a whole, on the language of the particular statutory provision under consideration construed in the light of the legislative purpose embodied in the Act, and on 'whether strict liability in respect to all or any of the essential ingredients of the offence would promote the object of the provision.'"

Applying the above principles to the matter in hand the following observations can be made about the regulations made under the National Parks and Wildlife Act and reg4 in particular.

1 The prohibited acts "are not criminal in any real sense but acts which in the public interest are prohibited under a penalty" see Sherras v De Rutzen (supra) at p922.

2 It is now widely recognised that reserved lands constitute a valuable and irreplaceable community asset which enhances the quality of life. The ecology of these areas is often fragile and the preservation of native fauna and flora can truly be said to be a matter of social concern, not only for the present generation but for those which follow.

3 In general terms keepers and owners of animals are expected to ensure their animals do not stray or trespass. It is likely that Parliament intended to cast an obligation upon those who permitted their animals to be in or remain on land not in private ownership to make enquiry to ascertain the status of that land and any statutory restrictions on its use.

4 The maximum penalty for an infringement of the regulations is $2,000. Whilst not a trifling amount it cannot be said to be a heavy penalty.

5 In the absence of an admission, knowledge that the land was reserved would be difficult to prove and the creation of such difficulty is inconsistent with the social purpose of the legislation.

6 The provisions of the National Parks and Wildlife Act provide in effect, that land becomes reserved land upon a proclamation made by the Governor. Thus the existence and boundaries of reserved land are capable of being ascertained by any member of the public.

36 I reach the conclusion that upon a proper construction of reg4 knowledge that the land is reserved land is not an element in the offence. Such construction is consistent with the social purpose of the legislation and in accordance with the ordinary and natural meaning of the words used.

37 Such a conclusion does not of necessity mean that the language and subject-matter of the regulation wholly displaces the presumption that mens rea is an element in every statute. Parliament may have intended that criminal responsibility would not ensue in the event of a mistaken belief honestly held and based on reasonable grounds that the land was not reserved land. However, there was no evidence before the learned magistrate that any of the respondents may have held such a mistaken belief and so the question does not fall for determination upon this appeal. Accordingly I would allow the appeal and order that the complaints be remitted back to the Court of Petty Sessions for rehearing by a magistrate.