Karl van der Plas: Mens rea under the Animal Welfare Act

He aha te kai ō te rangatira? He Kōrero, he kōrero, he kōrero.

What is the food of the leader? It is knowledge. It is communication.

At BVA The Practice we strive to be leaders in our field and share our knowledge with the community. This article is part one of two regarding the significance of mens rea under the Animal Welfare Act 1999. Part one will outline the issues, interpretations and potential implications of the SPCA v Powers case.

Background on the Animal Welfare Act 1999

Our legal system acts as a guardian to ensure that all animals receive fair and proper treatment. Essentially, the purpose of the Animal Welfare Act 1999 is to create obligations and minimum standards for owners and people in charge of animals to ensure that the physical, health, and behavioural needs of those animals are met. Along with creating expectations and duties for the care of animals, the Animal Welfare Act 1999 is used in prosecuting inadvertent, reckless, and wilful ill-treatment of animals. The Act defines the physical, health, and behavioural needs of an animal as including proper and sufficient food and water, adequate shelter, opportunity to display normal patterns of behaviour, physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress and, protection from, and rapid diagnosis of, any significant injury or disease.


Karl van der Plas, BVA The Practice lawyer, is writing a journal article which confronts the issues with proving mens rea under the Animal Welfare Act 1999. Before the publication of this article in early 2019, this article offers an introduction to the complex issue that is determining recklessness in terms of mens rea under the Act. Through a brief case summary of SPCA v Power, this article will suggest some issues and implications that have arisen from the judicial decision.

Each animal welfare offence falls onto a spectrum; from inadvertent to intentional. Therefore, it is vital that the Animal Welfare Act 1999 can comprehensively cover the full range of offending towards animals, recognising the differences in culpability and assigning the proper sentences. There are three main ill-treatment offences within the Animal Welfare Act, strict liability, reckless, and wilful. The latter two of those offences, reckless and wilful, are mens rea offences. Mens rea is Latin for a guilty mind. In other words, mens rea is the thought one must have had to be guilty of this type of offence.

SPCA v Power

In SPCA v Power, Ms Power’s horse, Pip, a 32-year-old gelding, died after what the District Court Judge described as “a long period of pain and starvation”. Ms. Power maintained that she watched Pip from a distance for the 10 days prior to his death, but the Court mentioned that if she had checked on Pip, she would have noticed his deteriorated state and urgent need for medical attention. Originally, Ms. Power was convicted under section 28A for recklessly ill-treating animals. However, on appeal, the High Court disagreed with the District Court Judge’s views on recklessness. The Court’s interpretation of reckless was that Ms. Power would have had to acknowledge that her actions would have caused death or serious injury.

Implications of conviction

This decision raises multiple questions. How does this ruling impact on prosecuting for reckless conduct in future? Does it raise the bar too high? Does it impact on wilful ill-treatment? Does it capture the full range of ill-treatment offending?

It could be argued that not many people have an appreciation that death or serious injury could flow from their actions, unless they intended to cause such a high degree of harm. It could also be argued that the legislation fails to capture offending toward the middle of the spectrum, where a person was reckless, but not to the extent of causing death or serious injury. This reiterates the importance of mens rea under the Animal Welfare Act.

In Part Two of this article, these questions will be discussed in detail, along with further implications of this ruling.