A TOURIST who drove on the wrong side of the road while taking his son to Australia Zoo as a first birthday gift has won his fight for a new trial for allegedly killing another driver.
Johny George Kuruvinakunnel, 34, was convicted of dangerous driving causing 73-year-old Glasshouse Mountains man Ray Milburn's death after a two-day trial in Maroochydore District Court in September.
The Darwin child safety worker was sentenced to two years jail, suspended after nine months.
The Court of Appeal, in a judgment handed down on Friday, found there had been a miscarriage of justice, set aside the guilty verdict and ordered a re-trial.
The three justices found the trial judge's directions could have misled the jury on the way they should consider the sleep issue.
Justice Margaret McMurdo said Kuruvinakunnel's actions could not amount to dangerous driving if he fell asleep suddenly without warning.
She said the accused man had told police officers at the road side he thought he might have fallen asleep.
"I consider the judge's directions may have led the jury to reach their verdict on a wrong basis and that this has deprived (Kuruvinakunnel) of the chance of an acquittal," she said.
Justice John Muir said to dismiss sleep as a defence, the prosecution had to prove the driver was aware they were tired or suffered a condition compromising their ability to remain awake while driving.
He said if the jury was satisfied the accused person was asleep, then "the act was not intentional, it was not willed and (the accused) is not criminally responsible" for events while asleep.
Justice Muir said the trial judge did direct the jury that the prosecution had to exclude beyond a reasonable doubt the possibility the aberrant driving was causing by Kuruvinakunnel falling asleep.
But he concluded the judge's directions had the potential to lead the jury into erroneous reasoning.
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