Horror crash driver to get trial sequel

Written By Unknown on Kamis, 29 November 2012 | 23.51

A MAN who was jailed for smashing his car into oncoming traffic and killing an elderly driver on the Sunshine Coast has won a retrial on appeal because he may have been asleep at the time.

The Court of Appeal ruled Johnny George Kuruvinakunnel should get a new trial because of inadequate directions by the trial judge.

A jury at the Maroochydore District Court took two days in September to find Kuruvinakunnel, 34, guilty of causing grievous bodily harm to his wife Rhea Eugene and family friend Ninny Varkey - both passengers in his car - and for the death of another driver, Ray Milburn, 73.

He was sentenced to two years imprisonment to be suspended after nine-months.

The trial heard the defendant was driving a van northbound on Steve Irwin Way towards the Australia Zoo, near Beerwah, with his wife, two adult friends and two young children aboard, on June 20, 2011.

It heard Mr Milburn was driving a ute which was travelling in the opposite direction when the van, driven by Kuruvinakunnel, failed to follow a sweeping bend and travelled onto the wrong side of the road.

The two cars collided head-on at 1pm.

The trial heard Kuruvinakunnel told police investigating the crash he "momentarily, and without warning, fell asleep" behind the wheel.

This evidence was raised by his defence during the two-day trial.

In the Court of Appeal, Justice Margaret McMurdo, Justice John Muir and Justice Robert Gotterson agreed the judge's directions may have led the jury to reach their verdict on a wrong basis and deprived Kuruvinakunnel of "a chance fairly open to him of being acquitted".

Justice McMurdo said the trial judge misled the jury on whether the crash was a "willed act" or done while the defendant was "momentarily and suddenly asleep" by reversing the onus of proof.

"... the jury should have been instructed that, if they were satisfied beyond reasonable doubt that the driving was objectively dangerous to the public, then they must consider whether they were satisfied beyond reasonable doubt that the appellant when doing so was not momentarily and suddenly asleep," she said.

"If so, his actions whilst asleep would be involuntary and could not amount to dangerous operation of a motor vehicle."


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