Actus Reus

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An actus reus is composed out of the following elements:

  1. Act (sometimes even an omission or status).
  2. Consequences (optional).
  3. Causation - (dependent on whether there is a consequence element).
  4. Circumstances - (optional)
  5. Voluntariness - referring to whether the act was a willed muscular action as opposed to a twitch, spasm or reflex action (voluntariness is not to be confused with the serious mental element dealt with in mens rea).
    • The presumption is that the action was voluntary. The accused can rebut this presumption by satisfying an evidentiary burden, and only then will the prosecution need to prove that the action was voluntary beyond all reasonable doubt: Falconer.[1]
      • The evidentiary burden will not be easy to satisfy, and usually requires expert medical opinion: Falconer.[2]
    • In determining voluntariness, the court looks at the whole context of acts, and the probable consequences of those acts, rather than just the 'startle moment'.

Under the law of attempts, attempts to commit a crime which failed might still qualify as an actus reus. The actions must have been:

  1. Acts of perpetration, as opposed to mere acts of preparation: McMillian v Reeves .[3] In order to draw the line, the court adopt the 'proximity test', which considers three aspects of the scenario (:Park.[4]):
    1. Temporal – How much time remains before all necessary acts?
    2. Physical – How near is the accused to the physical location?
    3. Task-related – How many more tasks must the accused perform?
  2. The present scenario must fall into one of the following two categories:
    • An attempt which only failed because it was stopped before all the actions were completed.
    • An attempt which only failed because of the accused's incompetence or ignorance of certain circumstances.
  • Note: same maximum punishment for attempts, but in practice more lenient.[5]

This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 326-341.


[6] An ‘actus reus’ is usually composed out of the following elements (some may not apply in certain crimes):

  1. Act (and more rarely, an omission or state of affairs) - the actual act itself (such as a punch, an attempt to sell drugs and so on) or the failure to act (eg the failure to pay taxes).
  2. Consequences - some crimes require a certain circumstance from the act to render it a particular crime (such as the death of the victim to render an assault a murder).
  3. Causation - where there is a required consequence (as in murder), it must be established that the act actually caused the consequence.
  4. Circumstances - some acts require special circumstances to render an otherwise lawful act a crime (such as lack of consent when having sex rendering it rape, taking an item without consent rendering it theft, being naked in public rendering it indecent exposure).
  5. Voluntariness - the act must have been a voluntary act of a conscious mind (ie, not an instinctive reaction such as a muscular twitch). This will explained in more detail below.


[7] The common law is generally reluctant to punish people for omissions, (eg failure to rescue when no risk to self etc).

  • However, many statutory offences impose duties on people to carry out certain activities or else be faced with criminal penalty.
  • Thus there is no real general principle, and the definition of each criminal offence must be looked at to see if they can be committed by an omission.
  • In NSW s 18 (1) of the Crimes Act 1900 (NSW) provides that murder can be committed by omissions in certain circumstances; this is the current position of the law.

Status Offences

[8] There are some offences, called status offences, where the prosecution does not have to prove any action on the part of the accused. Criminal liability results from the fact that someone is found in a particular situation. Examples include:

  • Terrorism legislation - being a member of an terrorist organisation constitutes an offence.
  • Illegal immigration - being in a country without a visa constitutes an offence.


[9] It is necessary that the prosecution prove that the accused’s acts were voluntary. Despite being difficult to define, a voluntary act would at minimum be a willed muscular contraction.

  • In other words, a connection between the conscious mind and the bodily movement.
  • For an act to be involuntary, it must be a muscle spasm without going through mental process (this is a very narrow application).
    • For example, reflex actions, epileptic fits, unconscious actions, sleep walking (being asleep), having heart attacks, startle responses (eg when someone scares you).

Voluntariness is considered an aspect of actus reus even though raises questions about of the relationship between the accused’s mind and his physical movements (which is usually the domain of mens rea). This is significant because regardless of mens rea a minimal degree of mental control is required in every offence.

  • It is important to note that voluntariness shouldn't be construed as the normal everyday use of the word - it does not refer to intention in the sense that the defendant didn't want to do something but was made to do it (eg through coercion).
  • Rather, it deals with whether the action was a voluntary act between the mind and the body.

The issue of when a movement is voluntary or whether it is a reflex was discussed in Ryan:[10]

  • Facts: the accused was robbing a store. He was pointing a gun, loaded and cocked towards a store attendant. Attendant made sudden movement, gun discharged in an alleged reflex movement.
  • Held: in determining voluntariness, the court looks at the whole context of acts, and the probable consequences of those acts (ie, not just the ‘startle’ moment). As such, when the relevant sequence of acts leading up to that point is viewed holistically, it is evident that a voluntary chain of events caused the death.
    • The man's was fully conscious in pointing a loaded gun with his finger on the trigger. He cannot use an 'involuntariness' argument when he then gets startled and presses it - he consciously put himself in that situation.

What is the Relevant Act?

[11] This issue was discussed in Murray:[12]

  • Facts: similar to the facts of Ryan (above), involved an accidentally discharged shotgun.
  • Held: the 'act' in question should not be viewed too narrowly (eg, the actual pressing of the trigger with the finger). The act is discharging the loaded shotgun, and that comprised a number of different movements: loading the gun, cocking it, presenting it, firing it.

It was also the topic of Jiminez:[13]

  • Facts: the accused was driving a car and collided with tree, killing a passenger. He argued that he had fallen asleep at the wheel, making the act involuntary.
  • Held: If the defendant had fallen asleep at wheel, his actions were not conscious or voluntary, thus he is not criminally responsible for driving car in a manner dangerous to the public. However, one can be held responsible for the period of time which immediately precedes his falling asleep (ie, when he was driving in a drowsy state), if that period was close enough to the accident and if the driving during that period caused the crime.
    • In this case, a new trial was ordered because the jury was not informed about this aspect of voluntariness properly.

Voluntariness and Causation

[14] There must be causation between the voluntary act and the consequence. For example, in the case of homicide, the prosecution must prove that a voluntary act of the accused caused death. For Barwick CJ in Ryan, while this might have resolved the voluntary act issue, it simply created another problem - causation. For the act must cause the death, and the earliest voluntary act which, according to Barwick CJ, the jury might reasonably have accepted as the cause of death, was the presentation of the gun.

Burden of Proof

Actus Rues, Not Mens Rea

Culpable Driving

Duress and Involuntary Act


[15]It often happens that a criminal act is not completed, or that the consequence is not caused, in spite of the accused attempting to do so. These offences will still be punishable under the law of attempts, which operates in two main situations:

  1. Where the accused only performed some of the acts necessary acts - ie, where the act is left incomplete because it was stopped before it was completed (eg, being stopped by police whilst trying to steal a car, or even a change of heart).
    • The rationale for still pursuing a conviction is to allow the police (and others) to intervene without risking the chance of a conviction.
  2. Where the accused performed all of the acts but still failed - where the person attempted to carry out the crime but failed to do so due to his own incompetence (eg, shooting a gun and missing) or because certain circumstances were not as he thought there were (eg, gun was not loaded).
    • The rationale is that the accused still had the requisite mens rea and may try again and succeed.

s 344A of the Crimes Act 1900 (NSW) prescribes that the same maximum penalty applies to the attempt of an offence as the actual offence. However, in practice attempts often receive lighter sentences.

  • The exception is attempted murder, which is 25 years as opposed to a life sentence.[16]

Making out the actus reus of attempt involves showing acts of perpetration, as opposed to mere acts of preparation.

Acts of Preparation and Acts of Perpetration

[17] There is a distinction between acts of preparation and acts of perpetration. Mere acts of preparation are not sufficient to constitute an offence.[18]

The courts are reluctant to find criminal attempt, because it is so hard to determine the line of what constitutes an act of perpetration. The current most favoured test is the proximity test, which inquires whether the defendant’s conduct was sufficiently proximate to the commission of the completed offence to constitute an attempt to commit.[19] It has three dimensions:

  1. Temporal – How much time remains before all necessary acts?
  2. Physical – How near is the accused to the physical location?
  3. Task-related – How many more tasks must the accused perform?

The distinction between non-criminal preparation and criminal attempt is a matter of degree, and the test is a highly subjective one.

'Early Intervention' Offences

[20] There are specific criminal offences that extend liability back further along the time dimension to include acts of preparation. This is done to encourage 'early-intervention' in those offences.

  • They are anticipatory offences.
    • These offences allow intervention by the authorities at a much earlier point of time than would be the case if they had to wait for the planned offence or the attempt to take place.
  • For example, possession of housebreaking equipment, the offence of supplying drugs (which includes receiving for supply etc), and ‘any act in preparation for, or planning, a terrorist act’ (as per s 101.6 of the Criminal Code (Cth)).
  • Similar to law of attempt in terms of rationale etc.


This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. (1990) 171 CLR 30.
  2. (1990) 171 CLR 30.
  3. (1945) 62 WN (NSW) 126, 127.
  4. [2010] NSWCCA 151.
  5. Crimes Act 1900 (NSW), s 344A.
  6. Textbook, p. 326.
  7. Textbook, p. 326.
  8. Textbook, p. 327.
  9. Textbook, pp. 327-30.
  10. (1967) 121 CLR 205.
  11. Textbook, pp. 330-3.
  12. (2002) 211 CLR 193.
  13. (1992) 173 CLR 572.
  14. Textbook, pp. 333-4.
  15. Textbook, p. 336.
  16. Crimes Act 1900 (NSW), s 30.
  17. Textbook, pp. 336-9.
  18. McMillian v Reeves (1945) 62 WN (NSW) 126, 127.
  19. Park [2010] NSWCCA 151.
  20. Textbook, pp. 339-40.
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