ISSUE
Deliberating on the criminal liability of the death of his grandmother, Frieda (“F”) conveyed through acts/omissions of anonymous threatening and silent phone calls by David (“D”). Concurrent with verbal comments made prior, liability of D for assault, “physical hit”, to the chest amounting to the death of F in accordance with the Crimes Act 1900 (NSW), (“the Act”).

FACTS
Common Assault
David’s initial anonymous threatening and silent phone calls to F over approximately one week when D believed he had “taught her a lesson” on cessation.

LAW
Intrinsically provided under s.61 of the Act common assault is:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”

Primarily perceived as battery, it is not limited to …show more content…
Fagan defined recklessness as an act with intent or recklessness which instils imminent fear to another together with unlawful personal violence. Reckless is not just physical but consequently adverted by what the reasonable person would have intended, known or foreseen.

In MacPherson v Brown Zeeling J stated:
“Mens rea of assault is sufficiently established by proof of the mental element of recklessness”

Accordingly D identified intent through threats made in the disguised calls, supported by the belief that he had “taught her a lesson” and later act of punching F’s chest amounts to physical contact (assault).

DEFENCE ELEMENTS
Raising the ratio held in Knight of threats made through phone calls cannot be proven to be imminent as they could have happened at any time and if at all, could be relied upon. To be successful in quashing the conviction for assault the onus would be on D to prove BRD that his acts were not imminent. In Camplin , Lord Diplock stated:

“…the defendant may not rely on ‘his exceptional excitability or pugnacity or