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[2009] VSC 494
defendant. The Crown's application to take the issues of self-defence and defence of another (and possible defensive homicide) away from the jury was rejected; those issues are to be left to the jury (see [8]).
No linked legislation citations have been extracted yet.
In a trial for murder, the Crown asked the judge to remove the issues of self-defence and defence of another from the jury. The accused had given evidence that he feared harm to himself or family from his wife. Beach J held that this evidence, when read with the statutory provisions recognising defensive belief in family violence cases, provided an evidentiary basis on which a reasonable jury could find the accused genuinely believed his conduct was necessary. Accordingly the judge refused the Crown's application and left the issues of self-defence and defence of another to the jury.
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1,544 words · generated 15/08/2026
This ruling records an interlocutory decision by Beach J in the Supreme Court of Victoria on 28 October 2009 in the criminal trial of Anthony Sherna. The Crown applied for a judicial ruling removing from the jury the issues of self-defence, defence of another, and the possible alternative offence of defensive homicide. The accused had given evidence at trial. That evidence included a statement that he was "totally convinced that if I left Susie then either myself or a family member would be harmed ... I was bloody terrified" ([3]). The Crown contended there was no adequate evidential basis to leave the defences to the jury and relied on the principle stated in Zecevic v DPP about the boundary of judicial intervention in factual defences ([2]).
Beach J considered the statutory provisions relevant to defensive belief, s 9AC (the not-guilty-by-reason-of-belief provision for murder) and s 9AH(1) (which, in family violence circumstances, expressly permits a defendant to have believed, or to have had reasonable grounds for believing, defensive necessity even if harm was not immediate or the response involved excessive force), and the accused's evidence. The judge concluded there was evidence from which a reasonable jury could draw inferences and thereby be left to determine whether the Crown had disproved the defence beyond reasonable doubt. The Crown's application was refused; the issues were left to the jury ([4]–[8]).
Two legal touchpoints drive the decision: the evidential threshold for withdrawing an issue from the jury and the statutory scope of defensive belief in family violence cases.
First, Beach J accepted the principle, quoted from Zecevic, that while a plea of self-defence may be weak, if there is "evidence on which a reasonable jury could decide the issue favourably to the accused", it is the jury, not the judge, that must resolve the matter ([2]). The judge noted that the Crown relied upon that precedent but that the quoted principle supports leaving factual defences to the jury where some evidence exists.
Second, the judge applied the statutory framework. Section 9AC provides that a person is not guilty of murder if he or she carried out the conduct while believing it was necessary to defend against death or really serious injury ([4]). Section 9AH(1) then expands on that in family violence cases, explicitly providing that a person may believe and may have reasonable grounds for believing the conduct was necessary even where the harm was not immediate or where the response involved excessive force ([5]). Family violence was alleged in this case ([5]).
On application, the judge treated the accused's evidence, his expressed conviction of impending harm and fear, as some evidentiary material from which jurors could infer a genuine defensive belief. The fact the accused did not expressly state that he strangled his wife because he believed it was necessary was noted; Beach J observed that would have been inconsistent with the accused's primary defence that he did not intend to kill or cause really serious injury ([6]). Nonetheless the accused's testimony supplied enough for a reasonable jury to consider the defensive belief issue. Therefore the judge refused the Crown's application to withdraw the issues from the jury ([7]–[8]).
Before this ruling, the established approach (as reflected in the Zecevic quotation used by the Crown and recorded by the judge) was that judges should not usurp the jury's role if there is any evidence that reasonably could support the accused's defence. This principle was applied in the present ruling.
What this ruling does in the immediate sense is to apply that principle to the statutory provisions now operative in Victoria (s 9AC and s 9AH) and to confirm that, in a family violence context, evidence of fear and belief about future harm, even without an explicit contemporaneous claim of defensive necessity, may suffice to create an evidentiary basis for submission of self-defence and defence of another to the jury. The decision emphasises that the broadened statutory conception of defensive belief in family violence cases must be given effect when determining whether there is evidence fit for the jury.
The ruling does not change the legal test; it is an application of the existing Zecevic principle alongside the explicit statutory language of ss 9AC and 9AH. The "after" state is simply a recorded application: where the accused's evidence can be read to supply a belief that defensive conduct was necessary, a judge should not take those issues away from the jury.
Paragraph [2] (quoted Zecevic passage): The judge records the established rule that even a weak self-defence claim is for the jury to decide if there is evidence a reasonable jury could accept. Plain English: If there is some evidence that the accused genuinely believed defensive action was necessary, the judge should not rule the defence out; it is for the jury to weigh it.
Paragraph [3] (accused's testimony): The accused said he was "totally convinced" leaving his wife would result in harm to him or family and that he was "bloody terrified". Plain English: The accused said he feared real danger to himself or relatives from his wife; that fear is what he told the court.
Paragraphs [4]–[5] (statutory text references): Section 9AC says a person is not guilty of murder if they acted believing defensive force was necessary to prevent death or really serious injury. Section 9AH(1) clarifies that in family violence situations a person may have a reasonable belief in necessity even if the danger was not immediate or the force used was excessive. Plain English: The law says defensive belief can negate murder, and in family violence cases the belief can still count as reasonable even if the danger was not right in front of the person or the response was stronger than the threatened harm.
Paragraph [7]: "there is evidence from which a reasonable jury could draw inferences ..." Plain English: The judge found the accused's evidence gave jurors enough to consider whether he honestly thought his actions were necessary; therefore the jury must decide.
Paragraph [8]: The Crown's application is rejected. Plain English: The judge refused to remove self-defence from jury consideration.
This ruling is engaged where:
A defendant in a homicide trial adduces evidence indicating fear of harm to self or family, such as statements expressing conviction of likely harm and terror ([3]); and
The prosecution applies to exclude self-defence on the ground there is no evidential basis; and
The alleged facts occur in a family violence context, bringing s 9AH(1) into play, which expands what can be regarded as a reasonable belief about defensive necessity ([5]).
Concretely, if a defendant testifies that they were convinced some third party could use connections to cause harm, or expresses a real fear that leaving a relationship would result in harm, those statements may be sufficient to satisfy the low threshold required to leave the defence to the jury, particularly where family violence is alleged.
This ruling itself is a single-court interlocutory decision by Beach J and records an application of the Zecevic principle and the statutory provisions then in force. The judgment does not record subsequent appellate treatment. The present decision illustrates the application of the established principle that judges should not decide contested factual defences in preference to the jury when there is any evidentiary substrate. Any later treatment by appellate courts is not recorded in this ruling and therefore cannot be extracted from the text of this decision.
Grounded in the text of this ruling, the following remain matters for future clarification or contest and are not resolved here:
The ruling does not explore the scope of inferences a jury may permissibly draw from equivocal or non-explicit testimony. The judge accepted that the accused's testimony, though not an express claim of defensive necessity, could support an inference of belief. What degree of specificity or contemporaneousness in testimony will suffice remains fact-dependent.
The ruling notes a potential inconsistency between the accused's denial of murderous intent and the possibility of claiming defensive necessity ([6]). The decision does not resolve how such apparent inconsistencies should be weighed by a jury.
The limits of s 9AH(1) in closely contested cases where the alleged fear relates to indirect threats or reputational/associational harms (for example, fear of 'connections' using the phone as the accused mentioned at [3]) are not fully traversed; how courts will treat claims of defensive belief grounded in non-immediate or indirect threats will require further elaboration on the facts.
Finally, while this ruling follows the principle from Zecevic that judges should not remove borderline factual defences, the precise boundary between 'no evidence' and 'some evidence' is inherently malleable; future appellate authorities may further refine practical contours.
This deep dive has summarised and analysed the ruling of Beach J in DPP v Sherna [2009] VSC 494 using the reasoning and statutory material recorded in the judgment. It does not provide legal advice. Before acting on or relying on this material, get a qualified Australian lawyer to check it. I can make mistakes.
CRIMINAL LAW - Ruling - Application by prosecution to take self-defence away from the jury - Application refused.
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.
2 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 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."
4 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."
"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."
6 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.
7 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.
8 Accordingly, I reject the Crown's application to take the issue of self-defence and defence of another away from the jury.
[1] See s 9AC of the Crimes Act 1958.
[2] See s 9AD of the Crimes Act 1958.
[3] [1987] HCA 26; (1987) 162 CLR 645 at 665.
DPP
Sherna [2009] VSC 494
(1987) 162 CLR 645
The Crown's application to take the issues of self-defence and defence of another (and possible defensive homicide) away from the jury was rejected; those issues are to be left to the jury (see [8]).