Tsalapatis v The King

Case [2025] SASCA 27

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TSALAPATIS v THE KING

[2025] SASCA 27

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Bleby)

20 March 2025

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PROCEDURE - DIRECTIONS TO JURY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE - EXPERT OPINION

The appellant was convicted by a jury of one count of causing death by dangerous driving, contrary to s 19A(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act) and two counts of causing harm by dangerous driving, contrary to s 19A(3) of the Act.

The appellant seeks permission to appeal against his conviction on five grounds.

The appellant contended that the Judge erred in directing the jury there was an alternative pathway to guilt, namely that if the appellant failed to see the signs preceding the intersection where the collision occurred due to glare, he nonetheless drove dangerously due to his failure to adjust his driving to meet the conditions.

Further, the appellant contended that the Judge failed to sufficiently relate his legal directions with respect to the element of driving in a manner dangerous to the facts of the case.

It was also submitted the Judge erred in directing the jury that the appellant would be guilty of dangerous driving if he had driven with gross inattention, and could only be guilty of the lesser charge if they were satisfied he had driven with inattention, when the degree of inattention was a matter of fact for the jury to decide. 

The appellant also contended that the Judge made incorrect decisions on two questions of law. First, by not directing the jury that the appellant had to be found not guilty of all charges unless the prosecution had excluded beyond reasonable doubt the defence of an honest and reasonable mistake of fact. Secondly, the Judge erred in refusing to admit expert evidence regarding drivers developing low expectancy for needing to yield at upcoming intersections when they had previous priority. 

Held, per the Court, granting permission to appeal but dismissing the appeal:

1.      The Judge did not leave an alternative pathway to guilt;

2.The finding of dangerousness excludes any scope for the defence of honest and reasonable mistake of fact. The Judge did not err in law in failing to leave the defence of honest and reasonable mistake of fact to the jury, and in not giving directions thereon.

3.The Judge related the evidence to the elements of the offence when summarising the addresses of counsel and…

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Tsalapatis v The King [2025] SASCA 27
Case
[2025] SASCA 27
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction for causing death by dangerous driving. The appellant, Mr Tsalapatis, was the driver involved in a collision that resulted in a fatality. The central dispute revolved around whether Mr Tsalapatis's driving was dangerous, and whether the trial judge had adequately directed the jury on the relevant legal principles. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court included whether the trial judge erred by failing to leave the defence of honest and reasonable mistake of fact to the jury, and whether the judge's directions to the jury on the elements of dangerous driving and their application to the facts were erroneous. Specifically, the court had to consider the distinction between dangerous driving and driving without due care, and whether the evidence supported the defence of mistake of fact in light of the finding of dangerousness.

The Full Court reasoned that the finding of dangerousness, as a matter of law, excluded any scope for the defence of honest and reasonable mistake of fact. The court held that the judge's directions accurately articulated the legal elements of dangerous driving, distinguishing it from lesser offences like driving without due care. The directions correctly conveyed that the prosecution had to prove beyond reasonable doubt that a reasonable driver in Mr Tsalapatis's position would not have recognised the risk posed by his driving. The court found that the judge's directions adequately applied these legal elements to the salient aspects of the evidence, including the conditions of sun glare and obscured vision, and that there was no miscarriage of justice.

Permission to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

On the facts, and in the circumstances of this case, we would hold that the finding of dangerousness excludes any scope for the defence of honest and reasonable mistake of fact. There was no miscarriage of justice in the Judge not leaving that defence to the jury, and in not giving directions thereon to the jury.Ground 3 – failure to apply the legal elements to the facts The directions of the Judge in that passage reproduced above in the discussion of Ground 1, in which his Honour summarised the defence’s case, illustrates that the Judge articulated and applied the legal elements of a charge of causing death by dangerous driving and causing harm by dangerous driving to the salient aspects of the evidence. His Honour’s extensive general directions on the elements of the offences are set out below in the consideration of Ground 4. Together, they properly directed the jury on the legal elements and their application to the facts. The directions conveyed to the jury that the prosecution had to exclude beyond reasonable doubt that a reasonable driver in Mr Tsalapatis’ position would not have seen the indications that he was approaching an intersection with sufficient time to stop. There was, accordingly, no miscarriage of justice in the Judge’s directions to the jury. Ground 4 – erroneous directions to the jury The general directions of the Judge on the legal elements of the offences were as follows:I will now explain the three elements and how they apply in this case. Firstly, the driving. The first element is the accused drove a vehicle. The defence accepts that Mr Tsalapatis was the driver of the Subaru which … was involved in the collision. You can find this element proved without troubling yourselves.The second element required to be proved by the prosecution is the accused drove in a manner dangerous to others. This requires the prosecution to prove that a reasonable person, in the situation of Mr Tsalapatis, would have realised their driving was dangerous. In law, driving is dangerous if it involves a risk of injury to others which is greater than the ordinary risks of the road and which amounts to a real danger. In determining whether Mr Tsalapatis drove in a dangerous manner, it may help you to consider the distinction that the law draws between driving in a manner dangerous to others and driving without due care which is also an offence, but a lesser offence.As I say, driving without due care is a lesser offence that is committed whenever a person fails to exercise the level of care of a reasonably prudent driver would have exercised in the same or similar circumstances. The lesser offence covers any departure from the standard of care the law expects of all motorists. The offence covers mistakes often due to momentary inadvertence or minor and temporary lapses in concentration or attention. These are the sorts of things we all suffer from, from time to time, and we accept that it is one of the ordinary incidence of driving on our roads that we and others might commit such infractions of the law amounting to driving without due care or attention. The law recognises that none of us is perfect and any of us may have a minor lapse in concentration or fail to devote to our driving the care and attention the law requires. By acknowledging that each of us may do that ourselves, we must also, I think it follows, recognise that others might simply drive in that manner and have a lapse of concentration without the appropriate care and attention to their driving. The law recognises, in creating this offence, that a risk of this kind is something we must accept in driving a motor vehicle and as I said, it is one of the ordinary risks of the road that we or someone else may have a lapse in concentration and fall below the standard of faultless driving. These minor departures, which we all acknowledge in ourselves and recognise in others, and accept as an ordinary part of using the roads, as I say, are known as careless driving or driving without care and attention. No doubt, you will have seen that sort of careless driving frequently on our roads and you will know the manner of driving to which I refer. You have heard some examples given in court, including straying across a line dividing two lanes travelling in the same direction and those sort of offences. I do not think I need to bother you with more examples. Now that is driving without due care and attention.By contrast, let me now direct you of what amounts to dangerous driving. Dangerous driving involves a more serious departure from the standard of driving. It is a departure over and above careless driving or driving without due care. Dangerous driving is a departure from proper driving standards which exposes other road users to a risk which is, by no means, a fair or an ordinary risk of the road. The manner of driving exposes other road users to a risk which any reasonable person, in the situation of the driver, ought to recognise as a real danger to the public.It is the sort of risk which we do not expect to have imposed upon us or, indeed, others. It is the sort of driving that if you as a reasonable person, observed, witnessed, you would recognise it immediately and you might say to yourself ‘That is just not an acceptable risk of the road’. It is a driving which exposes others to risk which is greater than the risk from merely careless driving or driving without due care and attention. The law recognises this type of driving as dangerous driving. This type of driving that is driving in a manner dangerous to a person, forms the critical ingredient of offences charged in counts 1, 2 and 3. I say the ‘critical ingredient’ because it is the element of those charges which is in dispute in this trial.Whether something amounts to dangerous driving will, obviously, be a matter of degree. It is really a qualitative assessment or, in other words, a judgment about a question of fact which is based on a range of different actions or omissions by a driver.But regardless of the specific conduct that may be viewed and considered as dangerous, the question remains the same. Is the manner of driving such that it places other people in real danger, and which any reasonable person in the situation of the driver, ought to recognise as such that is dangerous?That type of driving might be caused by many things such as driving too fast; misusing a motor vehicle by doing burnouts with pedestrians in the vicinity; being under the effects of alcohol or drugs or, as alleged in this case, driving with gross inattention.All of that driving could amount to dangerous driving if it results in danger to the public, that is real danger.Whatever the explanation for the driving, it is driving in a manner which is not one of those ordinary risks of the road which we are prepared to accept, from time to time, but it is driving which places other people in danger and which, as I have said, any reasonable person, in the situation of the driver, ought to recognise as such.The assessment is an objective one, fixed in relation to the safety of those who use our roads. It is judged through the eyes of the reasonable person, placed in the situation of the driver. In this case, that judgment is yours as jurors in this matter.

Evidence

Evidence Before The Court

We explicate our reasons below.The evidence The collision occurred at about 5:30pm on Sunday, 28 March 2021. It is common ground that Mr Tsalapatis was driving in the direction of the sun, which, by that time, was at an angle which fell within his line of sight and created some glare within his field of vision. Mr Tsalapatis’ view of the approaching intersection was obscured by the Salopian Inn on the northeastern corner of the intersection and by vineyards on the southeastern corner of the intersection. There is a crest on McMurtrie Road as it approaches the intersection. About 190 metres east of the intersection, and just west of the apex of that crest, was a large green directional destination sign, which indicated that: there was a road to the right leading to McLaren Vale; there was a road to the left leading to Willunga; and the road continued in a westerly direction as Johnston Road. There was two give way signs placed about 170 metres east of the intersection, on either side of the road, at a position just west of the crest. Mr Peter Silvestri was following immediately behind Mr Tsalapatis in a Toyota RAV4, with his wife Ms Maria Silvestri seated in the front passenger seat of the RAV4. Ms Olivia Silvestri, the daughter of Peter and Maria Silvestri, and her partner, Mr Marco Cecere-Palazzo, were travelling behind her parents in another Toyota RAV4. Mr Cecere-Palazzo was driving that car. The speed limit on McMurtrie Road was 80km per hour and the speed limit on Main Road, 60km per hour. All vehicles approaching the intersection just before the collision were being driven at or about their respective speed limits. No alcohol or drugs were detected in a blood sample subsequently taken from Mr Tsalapatis. Mr Silvestri testified that he and his wife ‘probably had the sun in our eyes’. He continued that it ‘wasn’t really directly in our eyes, but it was sort of up there’. He estimated the angle of the sun to be at about 45 degrees. Mr Silvestri testified that as he approached the intersection, he noticed to his left (i.e., south) a car travelling north on Main Road. He testified that he knew that there were signs before the intersection, but that he did not take much notice of them. Ms Maria Silvestri described her vision looking through the windscreen of the car in this way:A.Well, the sun was probably to my right, like about that so I was sitting like this, it was probably like that … if I turned to look at Peter then [the sun] would bother me a little bit because I had the visor down, but I still had clear vision under the visor. Ms Maria Silvestri did not think that there was any glare, having ‘tested it the other day’. A little later in cross-examination, she said that there was ‘just that little bit [of glare] at the top’. She reaffirmed that she could see clearly after she put her sun visor down. Mr Shane Cudby was seated behind Mr Silvestri in the RAV4. As Mr Cudby looked ahead, through the gap between the front seats, he did not really notice the sunlight. They were using a smartphone navigation aid. He was not wearing his sunglasses. He noticed Mr Moulton’s Subaru to his left just before the impact.

Decision

Reasons for decision

The evidence was not admissible. We would dismiss Ground 5.Conclusion We would grant permission to appeal, but would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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