R v Duca (Ruling)
[2019] VSC 372
•6 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0094
| THE QUEEN | |
| v | |
| LAWRENCE MICHAEL DUCA | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 February 2109 |
DATES OF RULING: | 18 February 2019; 6 June 2019 |
CASE MAY BE CITED AS: | R v Duca (Ruling) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 372 |
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CRIMINAL LAW – Evidence – Murder – Issue of whether accused was present and fired the fatal shots– Lies told in record of interview – Whether lies reasonably capable of being viewed as evidence of incriminating conduct – s 20 (1)(b) Jury Directions Act 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Ms D Manova | John Cain, Solicitor to the OPP |
| For the Accused | Dr T Alexander | Anthony Condello, Condello Lawyers |
HER HONOUR:
Lawrence Duca was charged with the murder of Phuong The Vuong. Duca’s trial commenced in front of a jury on 25 February 2019. On 20 March 2019 the jury found him guilty of statutory murder,[1] after being unable to reach a unanimous verdict as to common law murder.
[1]Crimes Act 1958, s 3A.
Before trial, on 4 February 2019, the prosecution filed a notice outlining its intention to adduce evidence of conduct it proposed to rely upon as evidence of incriminating conduct.[2] The defence objected to that course. The parties agreed that I rule on the issue prior to the empanelment of the jury.
[2]Jury Directions Act 2015, s 19 (‘the Act’).
On 18 February 2009 I ruled that the conduct was, on the basis of the evidence as a whole, reasonably capable of being viewed by the jury as evidence of incriminating conduct. I said that I would provide my reasons later. These are those reasons.
The Prosecution Case
The prosecution case was that Duca, together with his friend, Abelardo Ramos, went to the Deer Park home of the deceased on 16 June 2017. Their initial purpose was to steal hydroponic equipment and valuables, premised on the (incorrect) information of Ramos that Mr Vuong was operating a marijuana ‘crop house’. That agreement was reached between them when Ramos attended at Duca’s residence that day.
From there, Duca and Ramos went first to the home of Duca’s mother, from where Duca picked up a ‘Country Road’ bag, the contents of which were unknown to Ramos, as well as a high viz vest and hard hat. Ramos and Duca had previously had a conversation that they would assume such clothing to disguise themselves as tradesmen.
Duca and Ramos next went to a car hire company in Coburg, from where they hired a van. CCTV footage from that company shows that at the time they left the premises they were not wearing high viz vests or hard hats. Unbeknownst to Duca and Ramos, the van was fitted with a tracking device. Upon later examination, that tracking device showed that the van had been driven to Deer Park and back. On the way to Deer Park, Duca and Ramos stopped, stole licence plates from a parked vehicle and affixed those to the hired van in a further attempt at subterfuge.
Several times as it was travelling, the van was captured on other CCTV cameras. Some of that footage shows the two male occupants wearing high viz clothing. An orange hard hat is visible on the dash board. One image shows the van parked outside the deceased’s home at the relevant time. No occupant is visible. Neither is the hard hat.
Upon arrival at the home of the deceased, the Crown argued that both men left the van. Duca was carrying the Country Road bag. Upon the door step, he produced a shotgun from that bag. Mr Vuong answered the door and, upon seeing the gun, tried to slam the door shut. At that moment Duca and Ramos reached a silent understanding to commit armed robbery. They both pushed against the door. The gun went off twice; once whilst being held by Duca and once in the control of Ramos. Those shots went into the door jamb and door mat, respectively. Duca reloaded the firearm. They managed to push the door open. Duca entered the house and, very shortly thereafter, fired two shots in rapid succession at the chest of Mr Vuong. He died from those gunshot wounds.
Duca searched the house and took some valuable items.
The van was returned to the Coburg hire company. Only Ramos is visible in the relevant CCTV footage. He is not wearing high viz clothing.
The deceased’s body was found 10 days later.
Duca was arrested on 17 July 2017. Commencing on that day, he participated in a record of interview. The incriminating conduct relied upon by the prosecution comprises three sets of lies told during that interview.
The Defence Case
Duca’s case at trial was that he did not approach the doorstep of the deceased’s Deer Park home. He did not bring a shotgun. He did not enter that home and he did not shoot the deceased. In short, he admits that he was present in the van, but does not admit that he approached the house, or that he was a participant in the murder.
The Lies
The Prosecution argued that the relevant lies were, in short:
(a) Lies about where Duca and Ramos went after they hired the van (‘Paco Coles lies’).
(b) Lies that Duca was not wearing high viz on the day the van was hired (‘high viz lies’).
(c) Lies that Duca remained in the van while Ramos went somewhere, before returning and placing something in the back of the van (‘staying in the van lies’).
The Defence Position
The defence argued that none of these three sets of lies had been, or could be, identified with sufficient precision and could not be established as demonstrably untrue.[3] Further, the Paco Coles lies had been disavowed in a timely fashion.[4]
[3]Citing Zoneff v The Queen (2000) 200 CLR 243 and R v Khoosal (1994) 71 A Crim R 127.
[4]Citing The Queen v Lee (2005) 12 VR 249.
The Legal Test
The test to be applied under s 20(1)(b) is not controversial. I must determine, on the basis of the evidence as a whole, whether the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct. That is, it must first be reasonable open to the jury to conclude that the conduct occurred – here that Duca told the relevant lies. And, second, it must be reasonably open to the jury to conclude that the only reasonable explanation of the conduct was that the accused believed he had committed the offence charged – that Duca murdered the deceased.[5]
[5]DPP v Zhuang [2014] VSC 276, [21]-[23], per Kaye J.
Analysis
The Paco Coles Lies
At the commencement of the interview on 17 July 2017, Duca was told that he was being interviewed in relation to the murder of the deceased, whose body was found in his Deer Park home.
Duca was asked various questions about his movements with Ramos on the relevant date. He said that Ramos had rung him, asking for the return of some loaned power tools. Ramos picked Duca up and took him to Duca’s mother’s house (the location of the power tools) and on the way there collected a van from a hire company.[6] They went straight to Duca’s mother’s house from the van hire premises and stayed about an hour.[7] When asked where they went after that, Duca said, ‘oh, it’s only, man, to get some meat, then home. … I dunno the suburb we were in … I went shopping at some fucking joint on the way, went for a quick spin, and went straight back home. … it wasn’t Coburg Coles, I think it was the Paco Coles, you know, in Sussex Street’.[8] He said from there he went home, cooked ‘a barbie’ and went to bed.[9]
[6]Qs 432-435.
[7]Qs 437-442.
[8]Qs 443-448.
[9]Qs 449-452.
Duca was later asked if he remembered going anywhere further away from his address than the shopping centre he mentioned. He said that he bought the meat at Coles on the corner of Gaffney and Sussex Streets, about five km or 10 minutes from his home.[10]
[10]Qs 530-539.
Upon resumption of the interview some time later, and after Duca had been seen by a doctor, he was asked to picture whether the van was hired before or after he and Ramos had visited Duca’s mother’s house. He said he couldn’t remember, but continued, ‘I was [with] [Ramos] at my mum’s for a while … I went for a cruise with him. I got some meat. … I think that was [in] the van. We were in the van at that stage. … so we must have got the van first, before my mum’s’.[11] He then said that he was sure he was in the van when he got the meat[12] and that he thought it was from Coles ‘in Paco’, which he explained meant Pascoe Vale.[13] He said he went into the store on his own.[14]
[11]Qs 735-741.
[12]Q 744
[13]Qs 746-747.
[14]Q 749.
When asked where he went from Coles, Duca replied: ‘No comment. I just can’t – I’m blank’.[15] He said he had been off ‘the gear’ for a while, but that day had taken ‘ice’ and a Xanax. He said again that he couldn’t remember where he went from Coles[16] before saying that he was ‘pretty sure’ they went back to his house because of the meat.[17] He had a nap and Ramos went away somewhere for an hour without him, to do something for his wife.[18]
[15]Q 755.
[16]Q 766.
[17]Q 773.
[18]Qs 774-778.
Later still, Duca said that the Xanax tablets began to kick in while he was at his mother’s house and before the van was hired.[19]
[19]Qs 972-976
Duca was asked again what happened after they left his mother’s house. Duca said, ‘I’m certain we went to Coles, man, and no comment after that. I just can’t remember’.
Later, Duca said that he couldn’t remember how long he was out at ‘Paco’ for. He said, ‘I remember the meat. Don’t remember back more in my mind. Then [Ramos] went missing for a bit. Then I was with him again and the next minute I know I was cooking the barbecue, yeah, and I went to bed ‘cause that tablet fuckin’ knocked me about so bad.’[20]
[20]Qs 1080-1082.
It is to be noted that to this point, Duca made several positive and sure statements that he went to a supermarket and bought meat. He stated he remembered doing so while in the van with Ramos.
Duca was then told that the police had information that the van was driving in Deer Park near the deceased’s house a short time after it had been rented. And, further, that police had CCTV footage showing two occupants in that van, the front passenger bearing similarity to him.[21] He was then asked if it was possible that he had gone further than Pascoe Vale.[22] Duca replied, ‘I can’t remember man. Like I can’t remember where the fuck I was’.[23] When told that the van appeared to have been driven from the rental place in Coburg to Deer Park without deviating, Duca queried whether it was to the Coles in Deer Park.[24] When asked if he remembered going to that store, Duca said he did not. He remembered Coles, but thought it was in Pascoe Vale up the road from his mother’s house. He did not remember being in Deer Park. He had never been to any house in Deer Park with Ramos.[25]
[21]Qs 1083-1086.
[22]Q 1087.
[23]Q 1089.
[24]Qs 1149-1150.
[25]Qs 1152-1155, 1163- 1165.
Duca thereafter maintained that the did not remember going to Deer Park, but did remember going to Coles to get his meat.[26] He was not certain that it was in Pascoe Vale, but he did buy meat with cash.[27]
[26]Qs 1161.
[27]Qs 1254-1255.
The evidence of the GPS tracker showed that the van did not travel to the Coles supermarket in Pascoe Vale, or to Pascoe Vale at all, or to any other Coles supermarket.
In my view, when considered in the context of all of the evidence, the jury could be satisfied that Duca told a deliberate untruth when he said that he was certain that he went to Coles to buy meat. Further, his stated uncertainty whether that Coles store was in Pascoe Vale (which he was initially pretty certain it was) or somewhere else does not disavow the lie that after hiring a van in Coburg, he and Ramos went to a Coles supermarket where he bought meat and they then went to his house, before Ramos left without him and returned later.
And, in my view a jury acting rationally could conclude that the only reasonable inference that Duca told the Paco Coles lies was because of a belief that he had murdered the deceased without justification.
High Viz Lies
During the interview, Duca was asked if he remembered what Ramos was wearing on the relevant day. He said that Ramos was wearing ‘his tradie stuff, his work stuff’. He said he couldn’t remember if Ramos had had his high viz gear on. He said that when he himself was in construction, he lived in his construction clothes.[28]
[28]Qs 350-355.
It is to be noted that Duca suffered a serious car accident in May 2016 and, in June 2017, was not in paid employment. He said that he no longer wore tradie clothes.[29]
[29]Qs 381-382.
Later, Duca was asked if he remembered what he was wearing the day the van was hired. He said he would have been in his ‘trackies’ and ‘dressed casual’.[30] He was then shown an image from the CCTV footage when he and Ramos attended at the Coburg hire premises.[31] As I have said, neither man was wearing high viz gear at that time.
[30]Qs 476-477.
[31]Qs 496-497.
Sometime later, Duca was again asked if he remembered what he was wearing in the van. He said he always wears blue jeans and he had a jumper on.[32] He said he remembered Ramos wearing a high viz top, tradie pants and boots.[33] Later still Duca was told that police had searched his mother’s house and found high viz work gear. Duca said that he worked in construction for 12 years and had high viz gear ‘all over the joint’.[34]
[32]Qs 807-808.
[33]Q 812.
[34]Qs 1032-1034.
Duca was asked if he remembered putting on or having high viz gear while he was in the van. He said he didn’t remember. When asked if it was possible, he said, ‘I can’t remember at all’.[35]He was then shown a photograph of a man looking very much like him in the passenger seat of the hired van wearing high viz gear.[36]An orange hard hat is also visible on the dashboard. A little later he said that he didn’t ‘know where the fluoro business came into it’.[37] He said that he didn’t remember wearing it, didn’t think he could have been wearing it, adding, ‘why would I? it wasn’t – you’d wear it to go to work or some shit, not to fuckin’ go out casual’.[38]
[35]Qs 1055-1056.
[36]Q 1086
[37]Q 1118
[38]Qs 1141-1143.
The CCTV footage and/or stills taken from that footage establish that neither man was wearing high viz clothing when the van was hired, Ramos was not wearing it when it was returned, but both were wearing it when the van was travelling in Deer Park. The inescapable inference is that it was put on during the journey. In my view the combined evidence, including the items found in the garage of Duca’s mother’s house, could allow a rational jury to conclude that Duca lied when he said that he was not, would not have, or could not remember, whether he wore high viz clothing while travelling in the van.
Further, in my view, it would be reasonably open to the jury to conclude that Duca told the high viz lies because that clothing was worn as a disguise to help mask the true purpose of the trip to Deer Park and Duca believed he had murdered the deceased.
Staying in the Van Vies
As outlined above, an early version of Duca’s statement of the route the hired van took was that after visiting (Paco) Coles to buy meat, he and Ramos returned to Duca’s house, after which Ramos went missing for a bit, later returning to Duca’s premises. The barbecue was cooked and Duca went to bed.[39]
[39]Q 1082.
Duca was then confronted with the evidence that the van, with him in it, travelled to Deer Park and was stationary outside the deceased’s home. Duca said that he remembered sitting ‘in the ‘front seat at one stage’. He said that he couldn’t remember if Ramos was still with him then or if he ‘jumped in and chucked the keys on – switched the car on to fuckin’ get the aircon on and the radio happening in the driver’s seat’. He said it was ‘hot as fuck’. He said that he was in the driver’s seat before returning to the passenger seat, so Ramos could not have been in the car at the time.[40] He said that he was fatigued on the tablet and was just kicking back in the van. Ramos came back and put something into the back. Duca said he had no idea what Ramos had been doing. There was no conversation about it and Duca wasn’t interested in it.[41]
[40]Qs 1192-1201
[41]Qs 1216-1222.
The image of the stationary van outside the home of the deceased does not depict the presence of either Duca or Ramos.
I note that the jury were taken on a view, which included an inspection of the van and the location of the air-conditioning switch. Even if it had been hot in the middle of June and Duca leaned completely sideways to push the button, as suggested by defence counsel, he would have been visible in the still image. It is to be remembered that Duca did not suggest to police that he was leaning over or in any way slumped. Further, Duca never suggested to police that he got out of the van in order to move to the driver’s seat, and the layout of the van did not require such a manoeuvre. On the contrary, Duca was at pains to convey the idea that he never got out of the van.[42]
[42]In evidence given at trial, Duca subsequently stated that he had gotten out of the van ‘to smoke a joint’, and that he had walked around to the driver’s side.
On the whole of the evidence, a rational jury could conclude that Duca lied about remaining in the van in Deer Park, being a location he was not aware he was in, while Ramos went somewhere unknown and of no interest to him for a period of some minutes. In my view, it would be reasonably open for the jury to conclude that Duca told the staying in the van lies because he believed he had murdered the deceased without justification.
Conclusion
For those reasons, I permitted the prosecution to argue to the jury that the foregoing conduct of Duca was, on the basis of the evidence as a whole, reasonably capable of being viewed as evidence of incriminating conduct.
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