VIC: Verdict quashed for man accused of killing two friends

AAP General News (Australia)
08-18-2008
VIC: Verdict quashed for man accused of killing two friends

MELBOURNE, Aug 18 AAP - A man who was driving a ute in which two friends were killed
when it crashed in Victoria while they were out rabbit hunting has had his conviction
quashed and a new trial ordered.

Paul Jacob Poduska was driving a ute that rolled down an embankment, killing James
Herbert, 26, and Kale Shaw, 18, north-east of Melbourne on February 7, 2004.

In November last year, Poduska was found guilty by a jury on two counts of culpable
driving causing the death of another person.

He was sentenced to a three-and-a-half-year jail term, with a minimum two years, in
the Victorian County Court.

The Victorian Court of Appeal today ordered Poduska be acquitted and a new jury trial held.

The dead men had been riding in the tray of the ute Poduska was driving on the vineyard
he was a manager at in Tarrawarra.

The three appeal justices said the facts of the case were not in dispute - that Poduska
and his mates had been drinking the night before and decided to go out rabbit hunting
early in the morning.

They were driving on rough terrain and in the darkness, but it was accepted that Poduska
was driving slowly.

All the justices agreed the original guilty verdict could not be supported once all
the evidence was looked at.

They also said the original trial judge failed to fully identify to the jury Poduska's
conduct upon which the Crown relied to prove its case.

Justice Phillip Mandie said: "... it was not open to a reasonable jury to be satisfied
beyond a reasonable doubt that the appellant, in driving the utility, had failed 'unjustifiably
and to a gross degree to observe the standard of care which a reasonable man would have
observed in all the circumstances of the case'."

The justices said the law required Poduska, in his driving, be seen as negligent to
a 'gross degree' for a guilty verdict to be upheld.

In deciding a new trial should be held, the judges said the original trial judge was
right to rule there was a case to answer and it is not at issue that the applicant was
the driver of the vehicle that killed two men.

Poduska has so far served nine months of his original jail term.

AAP kb/gfr/lh

KEYWORD: PODUSKA

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