A TOURIST who drove on the wrong side of the road while taking his son to Australia Zoo as a first birthday gift is appealing his conviction for killing another driver.
Johnny George Kuruvinakunnel, 34, strayed into the path of an oncoming ute on Steve Irwin Way, killing 73-year-old Glasshouse Mountains man Ray Milburn.
The crash also injured Kuruvinakunnel's wife Rhea Eugene and family friend Nimmy Varkey.
Kuruvinakunnel was sentenced to two years jail, suspended after nine months, after a trial in Maroochydore District Court.
The Darwin child safety worker took his case to the Court of Appeal, arguing the judge erred in the way he directed the jury before they began deliberations.
Paul Smith, counsel for Kuruvinakunnel, said the judge had given "mixed messages" which might have influenced the verdict.
"They had to draw an inference about sleep before they could even consider the issues and that's, in my submission, wrong," he said.
"Once the issue was raised there was evidence of it.
"In this case, the clear evidence was that there was no dangerous operation of the vehicle."
Mr Smith said his client believed he was driving in a safe manner and "it was only at the last minute that he was on the wrong side of the road".
Crown prosecutor David Meredith said the jury could not be in any doubt that the onus lay on the prosecution to prove its case.
"It wasn't the prosecution case that he fell asleep without warning ... (but that) he had not fallen asleep at all," he said.
Kuruvinakunnel, a Christian man, conducted separate masses in honour of Mr Milburn and had prayed for his soul.
The Court of Appeal has reserved its decision.
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