Director of Public Prosecutions v Sherna

[2009] VSC 494

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1412 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
v
ANTHONY SHERNA	Accused

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2009
DATE OF RULING:	28 October 2009
CASE MAY BE CITED AS:	DPP v Sherna
MEDIUM NEUTRAL CITATION:	[2009] VSC 494

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CRIMINAL LAW – Ruling – Application by prosecution to take self-defence away from the jury - Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A.J. Tinney	Office of Public Prosecutions
For the Accused	Ms J.A. Dixon SC	Lewenberg & Lewenberg

HIS HONOUR:

1. The Crown submits that the issues of self‑defence and defence of another[1] and the possible alternative offence of defensive homicide[2] should not be left to the jury.  If self‑defence and defence of another are left for the jury it is, of course, for the Crown to prove beyond reasonable doubt that the accused was not acting in self‑defence or defence of another.

   [1]See s 9AC of the Crimes Act 1958.

   [2]See s 9AD of the Crimes Act 1958.

1. The Crown relies on a passage in a judgment of Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions[3] in the following terms:

“Moreover, the appellant had only to raise a reasonable doubt in the minds of the jury to entitle him to succeed in his defence.  As Gibbs J observed in Reg v. Muratovic ‘… the plea of self‑defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided … that there is evidence on which a reasonable jury could decide the issue favourably to the accused.’”[4]

[3](1987) 162 CLR 645 at 665.

[4]Footnotes omitted.

1. In this case the accused has given evidence.  He said, amongst other things:[5]

“I was totally convinced that if I left Susie then either myself or a family member would be harmed either directly or indirectly from Susie.  There is no doubt in my mind that was going to happen at that point because Susie never spelt anything out.  She was 5' tall, sure, but goodness me she knew how to use the phone and she had connections, and if something, if she had a bee in her bonnet she used to make things happen and I was bloody terrified.”

[5]T330.16 - .24.

1. It is true that the accused never gave as a reason for killing his wife self‑defence or defence of another. Section 9AC of the Crimes Act provides:

“A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.”

1. Further, s 9AH(1) of the Crimes Act provides:

“Without limiting section 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary -

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person –

even if -

(c) he or she is responding to harm that is not immediate; or

(d) his or her response involves the use of force in excess of the force involved in the harm or threatened harm.”

Family violence is alleged in this case.

1. It is also true that the accused never gave evidence or said that he strangled his wife while believing his conduct to be necessary to defend himself or another person from the infliction of death or really serious injury.  To have done so would have been inconsistent with his primary defence that when strangling his wife he did not intend to kill her or cause really serious injury.

1. The plea of self‑defence or defence of another may be weak and tenuous.  However, that is not a matter for me.  Remembering where the onus lies and noting that the jury may not accept the accused’s denial of a murderous intention, in my view there is evidence from which a reasonable jury could draw inferences and then decide that they were not satisfied beyond reasonable doubt that the accused did not have the belief that his conduct was necessary to defend himself or his family from the infliction of death or really serious injury.

1. Accordingly, I reject the Crown’s application to take the issue of self‑defence and defence of another away from the jury.