Man acquitted of killing rabbiting friends

A man who killed two mates riding on the tray of his ute on a drunken early morning rabbit shoot has been acquitted of two culpable driving convictions by Victoria's Court of Appeal.

Paul Jacob Poduska, 28, was tired and affected by alcohol when he left a Healesville hotel at 3am and took a taxi with three friends to a nearby vineyard he managed, where they decided to go rabbiting.

He was driving at less than 15 km/h along the edge of a creek looking for rabbits when his ute slid down the bank and overturned, killing James Herbert, 26, and Kale Shaw, 18, who were on the tray.

Poduska had a blood alcohol reading of 0.08 more than two hours after the crash on February 7, 2004.

He was sentenced in November to 3 years jail, with a minimum of two years, after a County Court jury found him guilty of two counts of culpable driving.

In a Court of Appeal judgement handed down yesterday, Justice Peter Buchanan said the trial judge had failed to spell out the factors the Crown relied upon to prove that Poduska's driving was grossly negligent.

He said it was open to the jury to find that Poduska had been negligent by driving off the track and close to a creek at night, with two passengers on the tray, while he was tired and affected by alcohol.

"Unless the trial judge identified (those) matters on which the Crown relied . . . there was a risk the jury may have taken into account matters which the Crown did not or could not have relied upon," he said.

Justice Buchanan said there was evidence that Poduska had in fact driven with care, over familiar territory, and was "edging along" when the ute slipped into the gully.

"The evidence rather pointed to the conclusion that the applicant did have proper control and that the accident was due to his mistaken belief, for which there were reasonable grounds, that the (ute) was well short of the edge of the gully," he said.

All three appeal judges agreed the trial had miscarried because of the judge's failure to properly direct the jury. Justice Philip Mandie agreed with Justice Buchanan that Poduska should be acquitted, but Justice Geoffrey Nettle said there was sufficient evidence to justify a conviction and called for a retrial.

"Two young men were killed and it is not in issue that (Poduska) was the driver of the vehicle that killed them," Justice Nettle said.

"The errors which necessitate that the conviction be quashed were technical and they were made by the judge, not the Crown.

"It is in the interest of the public, the deceased and (Poduska) himself that the question of his guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery."

County Court trial judge Jim Duggan told the Court of Appeal he had expected the jury to acquit Poduska and that "it was not a strong case".

During sentencing, Judge Duggan described the accident as tragic and said Mr Shaw and Mr Herbert's families had not blamed Poduska for the men's deaths.

A Corrections Victoria spokeswoman said Poduska would be freed once court paperwork had been finalised.