Tsalapatis v The King - [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 properly directed the jury on the legal elements and their application to the facts;
4.The jury can only have understood the reference to gross inattention to mean driving which they were satisfied was dangerous. The direction was a proper and helpful restatement of the element of culpable negligence;
5.The expert evidence was correctly ruled inadmissible as it was abstract, theoretical, not related to the evidence of the case, and the objective standard which informs the element of dangerousness is a matter wholly within the province of the jury.

Criminal Law Consolidation Act 1935 (SA) ss 19A(1) and 19A(3); Crimes Act 1900 (NSW) s 52A, referred to.
R v Plath [2003] QCA 567, applied.
R v Wilson [2009] 1 Qd R 476, not followed.
Jiminez v The Queen (1992) 173 CLR 572, discussed.
Basanovic v The Queen (2018) 100 NSWLR 840; Bell v Tasmania (2021) 274 CLR 414; Gillard v The Queen (2003) 219 CLR 1; Hughes v Police (SA) (2009) 103 SASR 337; James v The Queen (2014) 253 CLR 475; Lindsay v The Queen (2015) 255 CLR 272; Proudman v Dayman (1941) 67 CLR 536; Pemble v The Queen (1971) 124 CLR 107; R v Coventry (1938) 59 CLR 633; R v Perham [2016] QCA 123; R v Turner [1975] QB 834, considered.

TSALAPATIS v THE KING
[2025] SASCA 27
Court of Appeal – Criminal: Kourakis CJ, Lovell and Bleby JJA

THE COURT: On his trial by jury in the District Court, the appellant, Mr Tsalapatis, was convicted 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. Those offences arose out of a collision between a Subaru Forester, driven by Mr Tsalapatis, and a Nissan Pulsar, driven by a Mr Sternberg, at the intersection of Main Road and McMurtrie Road at McLaren Vale. Mr Tsalapatis had entered the intersection travelling in a westerly direction along McMurtrie Road. Mr Sternberg was driving his Pulsar in a southerly direction along Main Road. The collision pushed Mr Sternberg’s vehicle into the path of another Subaru Forester, driven by a Mr Moulton, travelling north on Main Road.
Mr Sternberg’s wife was a passenger in his vehicle. She died as a result of the injuries she sustained. Mr Sternberg also sustained injuries; one of the two offences of causing harm was in respect of those injuries. The injuries sustained by Mr Moulton were the subject of the remaining count.
The appellant seeks permission to appeal against his conviction on the following grounds:
1.The learned trial Judge erred, resulting in a miscarriage of justice, by directing the jury (at SU14) that there was an alternative pathway by which the appellant could be found guilty of counts 1, 2 and 3, if he had failed to see the signs at and preceding the intersection because of glare, namely that he nonetheless drove dangerously because he failed to adjust his driving to meet the conditions present, when this pathway to conviction was not the prosecution case and the appellant was not given notice it would be left to the jury.
2.The learned trial Judge made a wrong decision on a question of law resulting in, or alternatively a miscarriage of justice resulted from, the jury not being directed that the appellant had to be found not guilty of all charges unless the prosecution had excluded beyond reasonable doubt the “defence” of honest and reasonable mistake of fact.
Particulars
2.1    At the relevant time, the appellant had a mistaken, but honest and reasonable belief, that the road he was driving on continued without being intersected by another road.
2.2    If the appellant’s belief had been correct, his manner of driving was not dangerous or lacking in due care.
2.3    The evidence before the Court satisfied the evidential burden to raise the “defence”.
3.The learned trial Judge erred, resulting in a miscarriage of justice, by failing to sufficiently relate his legal directions with respect to the element of driving in a manner dangerous to the fact of the case.
Particulars
3.1    The directions at SU14 about the prosecution case did not sufficiently explain to the jury the real questions they had to ask and answer, which were whether it had been proved beyond reasonable doubt that:
3.1.1A reasonable driver in Mr Tsalapatis’ position, who was keeping a proper lookout, would have seen the intersection and give way warning signs about 170 m before the intersection, or the give way sign at the intersection, or Mr Moulton’s vehicle approaching the intersection, or the intersection itself, in sufficient time to stop before they reached it; and
3.1.2Mr Tsalapatis’ failure to see, what they were satisfied a reasonable driver in Mr Tsalapatis’ position would have seen in sufficient time to stop before the intersection, created a real danger that was not part of the ordinary risks of the road that we accept as part of modern road use.
4.The learned trial Judge erred, resulting in a miscarriage of justice, by directing the jury (at SU16-17) to the effect 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 of driving without due care if they were not satisfied he had driven with “gross inattention”, but were satisfied he had driven with “inattention”, when the degree of inattention that proved the appellant drove in a manner dangerous was a matter of fact for the jury to decide for itself.
5.The learned trial Judge made a wrong decision on a question of law (at T243) by refusing to admit expert evidence from Associate Professor Dr Robert Anderson on the topic of how drivers who have had priority for a preceding part of their trip (in this case over about 11 kms) may develop a low expectancy for needing to yield at upcoming intersections.
In short, while we would grant Mr Tsalapatis permission to appeal on each of the grounds particularised above, we would dismiss the appeal on all bases.
Ground 1 is founded on a false premise. The Judge did not leave an alternative pathway to guilt. His Honour did no more than remind the jury of an argument put by the prosecutor in his closing address that, if the sun glare was as bad as the defence might suggest, Mr Tsalapatis should have stopped or dramatically reduced his speed. The points that the prosecutor was making were that the evidence established that the sun glare did not cause any significant difficulty for Mr Tsalapatis, or any of the occupants of other cars approaching the intersection from the east, and that the fact that neither Mr Tsalapatis, nor the drivers of the vehicle behind him, stopped or slowed down disproved any such suggestion.
Ground 2 must be dismissed because the Judge did not err in law in failing to leave a defence which he was not asked to leave, and on which defence counsel had not addressed. Moreover, there was no miscarriage of justice because, in the circumstances of this case, the mistake of fact on which Mr Tsalapatis relied — namely, that he was not approaching an intersection — was the result of his dangerous lookout.
Ground 3, too, must be dismissed. The Judge related the evidence to the elements of the offence when summarising the addresses of counsel. The direction impugned by Ground 4 was not a misdirection; it was a proper and helpful restatement of the element of culpable negligence. Finally, the Judge correctly ruled that the opinion of Dr Robert Anderson was inadmissible because it was abstract, theoretical, and not related to the evidence in the case. Moreover, the objective standard which informs the element of dangerousness is a matter wholly within the province of the jury; it cannot be informed by an explanation of the subjective reasons why motorists might fail to meet that normative standard.
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.
Ms Olivia Silvestri testified that she had sunglasses on, and that the glare was not a problem. The sun was in her direct eyeline to some extent, but, once she put down the visor, she ‘could completely see’. The glare did not impede her view of the intersection. She was following travel directions on the navigation application on her smartphone. Mr Cecere-Palazzo had the car’s sun visor down and he was wearing sunglasses. As their RAV4 approached Main Road, Mr Cecere-Palazzo asked Ms Olivia Silvestri if there was an intersection ahead, to which she responded affirmatively. The sun was not causing him any problem in viewing the road ahead. He did not recall any signage before the intersection.
Shortly after the collision, Mr Tsalapatis, who lives and works in Whyalla, was heard by Ms Olivia Silvestri to mutter, ‘I didn’t see the sign’.
Ground 1 – alternative prosecution case
The directions impugned by Ground 1 of the Notice of Appeal, in their proper context, are:
In this case, the prosecution says that Mr Tsalapatis’s driving was dangerous because he failed to give way at the intersection and drove into the path of other vehicles because his lookout was so grossly defective as evidenced by his failure to see or properly heed the give-way warning signs situated about 170 m from the intersection; his failure to see or heed the give-way signs at the intersection itself; his failure to see or respond to the vehicle to his left driven by Mr Benjamin Moulton, which was travelling on the Main Road towards the intersection.
The prosecution says to you that, as a reasonable person, you would recognise that driving as creating a real danger to the public. The prosecution says that the lookout was so grossly defective that it created unacceptable risk that went beyond the ordinary risk of the road that we accept as part of the incidence of modern road use.
Alternatively, the prosecution submits that if it is suggested that Mr Tsalapatis failed to see the green sign informing drivers they were approaching Main Road if he did not see the sign warning him of the give-way sign, if he did not see the give-way sign at the intersection because of glare, he nonetheless drove dangerously because he failed to adjust his driving to meet those conditions.
The, defence on the other hand, dispute these conclusions. For its part, the defence says that the prosecution has failed to prove that the manner of driving by Mr Tsalapatis was dangerous. The defence says that the prosecution has failed to exclude, as a reasonable possibility, that Mr Tsalapatis did not see the warning sign and the give-way sign because it was inconspicuous because of factors including glare; blending in with the background; visual clutter; the limited time to make observation because of the speed at which he was travelling, and the topography of the road contributed to his inability to see that sign. It suggests that the prosecution has not excluded that as a reasonable possibility.
It also suggests, that is, the defence also suggests, that having travelled a substantial distance along the same road, on which he had right of way, and having not seen the signs, that is, the signs approaching the Main Road intersection, there was nothing about the design or presentation of the road leading up to that intersection that alerted him to a change in that situation, that is, the situation where he had right of way.
The defence say that these circumstances represent the situation that Mr Tsalapatis was faced with as a driver. It submits that the prosecution has not excluded, as a reasonable possibility, in those circumstances, that a reasonable person in the situation of the driver, would not recognise the manner of Mr Tsalapatis’s driving posed a real danger.
It submits that the prosecution has not excluded, as a reasonable possibility, that, in those circumstances, a reasonable person, in the situation of the driver, would not recognise that the manner of driving involved driving without due care and attention. That is jumping ahead to the alternative charge.
The following points should be made. First, the passages, on their face, summarise the prosecution’s and defence’s addresses. Secondly, even though the paragraph commencing with the word ‘alternatively’ might be taken to suggest that the prosecution was putting a positive alternative case that Mr Tsalapatis was guilty of dangerous driving by failing to adjust for the sun glare, that was plainly not the prosecution case. It would be surprising if it were, because the alternative case would be destructive of its primary case that the sun glare was not a driving hazard.
As we shall see, and indeed is foretold by the introductory phrase ‘if it is suggested’, the prosecutor was anticipating a closing argument that might be put by the defence. He could not have been positing an alternative positive prosecution case, because all of the evidence in the case was to the contrary — that is, that the sun glare was not causing any difficulty.
Thirdly, and relevantly to Ground 3, the Judge’s summary of the defence case proceeded on the premise that Mr Tsalapatis could not be found guilty unless the prosecution proved beyond reasonable doubt that his failure to see the indications of the approaching intersection, in the environmental conditions then pertaining, was objectively dangerous.
Fourthly, it should be noticed that the reference in the summing up to that aspect of the defence’s closing which relied on the signs ‘blending in with the background’ is a reference to the phenomenon of ‘veiling luminance’, in respect of which Dr Anderson gave evidence. That phenomenon was a substantial plank of the defence’s case, to which we next turn.

In considering this Ground, it is first necessary to go to the evidence of Dr Anderson. Dr Anderson gave the following explanation of the concept of conspicuity:
A.Conspicuity means the ability to see something, so if something is either – if it is conspicuous you can see it, if it is inconspicuous you don’t see it.
Q.The greater the conspicuity, the more readily a person might see something.
A.Yes.
Q.I want to not talk about that intersection for now or that passage of road but are there factors which you can talk about in terms of conspicuity of signage.
A.Okay, so in general terms, that would include factors like the design of the sign, the contrast of those signs against the background environment, illumination in cases where illumination isn’t sufficient and sources of things in the environment that can interfere with conspicuity. It can include things like glare, glare can come from oncoming headlights, it can come from sun, that can cause quite a detrimental effect on conspicuity because when light is – when there is glare, light is scattered either, for example, in the eye, or it could be across someone’s glasses that they’re wearing. It can be – light can be scattered in a windscreen, it can be reflected off a dashboard and then reflected off a windscreen and all of those things can reduce the amount of contrast that is presented to the observer. And when there’s a lack of contrast, there’s a drop in conspicuity.
Q.I’ll come back to glare but you’ve talked about a lack of contrast and amongst those factors you just mentioned you said the contrast with what is behind.
A.That’s correct. Or even the contrast within the sign. So the elements of the sign or contrast with the background so that the sign stands out.
Dr Anderson explained the effect of glare and the associated phenomenon of veiling luminance in the following answer:
A.Okay, so glare is an effect when an external light source is – causes light scattering within your visual field. So typically that could be when, if the sun is shining in your eyes the light scatters, and like where the light source is in particular, of course there’s kind of a complete obliteration of anything that could be seen. But even in the rest of the visual field, if you’re not even particularly looking at the light, there’s an effect called ‘veiling luminescence’. So what that is, is like almost someone’s put a veil over the scene, a translucent veil, so all of the contrast is washed out of the scene. So what that means is that your sensitivity to contrast is very diminished, and so you start to see everything with almost the same sort of colour values if you like, and even the difference between light and dark becomes interfered with because everything has this light sort of sheen over the whole scene. So that can occur from – what it requires is for light to be scattered, and that can happen in the eye, but it can also happen in a windscreen. It can happen because, the slightly related concept of a reflection off a dashboard in the windscreen, creating a, sort of a white illumination over the whole scene, this reduces the contrast of everything behind it.
In his closing address, the prosecutor dismissed the defence’s reliance on Dr Anderson’s testimony:
According to Dr Anderson glare, in his words, ‘causes light to scatter within your visual field’, and you can end up with this thing that he described as ‘veiling luminescence’. And in Dr Anderson’s words: ‘It’s almost like someone puts a veil over the scene, a translucent veil’…
…
Is it going to be suggested to you that because of this possibility that a luminescent veil descended upon the accused as he drove to that intersection, that he just couldn’t see what was going on?
Did a luminescent veil descend upon him, and just make it impossible for him to see what was happening?
To pick up on Dr Anderson’s words again, perhaps it will be suggested that the luminescent veil from this light source was causing, I quote, ‘a complete obliteration of anything that could be seen’…
Dr Anderson went on to say that people who are subject to this luminescent veil, where there’s this complete obliteration of anything that can be seen, can sometimes miss the, in his words, ‘the visual cues’.
So if I’ve got that theory right – now I go first, I don’t know what my learned friend is going to say, she’ll tell you anyway – but if I’ve got that right, the theory must go like this that, to pick up on Dr Anderson’s words again, that this luminescent veil will cause, quote from Dr Anderson ‘Your sensitivity to contrast’ to be ‘very diminished’… And that, quote, ‘You start to see everything with almost the same sort of colour values, and even the difference between light and dark becomes [interfered] with, because everything has this light, sort of sheen over the whole scene’; end quote.
(Emphasis added)
We pause here first to acknowledge that, in the first underlined passage, the prosecutor has conflated Dr Anderson’s evidence about the lack of contrast caused by veiled luminance with his evidence about the obliterating effect of direct sun glare. But, when read as a whole, the prosecutor covered both aspects. The second of the underlined passages shows that the prosecutor was anticipating the arguments which might be put in the defence’s closing address.
The prosecutor then explained away the possibility that veiled luminance significantly reduced the conspicuity of the signs and other indications of the approaching intersection and invited the jury to reject that possibility:
Now, I just want to try and straighten up here. To me, it’s a matter for you what you make of it, but to me he’s talking about sun glare. Something that in your lives you may have experienced, sun in your eyes.
But, on that doomsday scenario, taking Dr Anderson’s evidence to its extreme, with this luminescent veil descending upon you, perhaps it will be suggested that the accused just couldn’t see what was going on.
Well, if that is suggested, I ask you to bear this in mind. If we do have this luminescent veil causing you to be able to see nothing, perhaps option A, for the prudent driver, the safe driver, might be to pull over.
Think about torrential rain, remember when it used to rain, it might again soon. It rains so heavy, you can’t see where you’re going, you’ve got to slow down. You are driving up the freeway and it’s foggy, you slow down. They’re things we expect of prudent drivers.
You haven’t got just a right to continue on. It’s my road, I pay my taxes, I’m driving on. You haven’t got that right.
(Emphasis added)
It is the argument in the last three paragraphs just quoted, to which the Judge was referring in the impugned passage of the summing up, commencing with the word ‘alternatively’. Plainly enough, the prosecutor was not submitting in his closing address that the evidence adduced demonstrated any hazard of that magnitude. The prosecutor was urging the jury to reject that suggestion, if it were to be made, because it would be inconsistent with the actions of Mr Tsalapatis, and the drivers behind him, in not adjusting their speed at all. So much is pellucid in the arguments which the prosecutor went on to make:
Anyway, the doctor was describing this as a theoretical concept. But the prosecution witnesses, I suggest, didn’t seem to be particularly inconvenienced by any luminescent veil that had descended upon them, causing, ‘a sort of white illumination over the whole scene’. They weren’t talking about that.
So, what I suspect you will be asked is to consider whether it’s a reasonable possibility that the accused had the sun in his eyes, and that’s why he missed the intersection. That I suspect is going to be what’s urged upon you. That’s why he missed the visual cues, including missed seeing Mr Moulton’s car approaching from the south.
…
But here we are fortunate to have the evidence of these eyewitnesses who can give us some assistance on that. Because they, I suggest, hit for six this notion that a veiled luminescence [was] causing a problem.
We are not satisfied that the way in which the Judge described the prosecutor’s closing argument could have misled the jury into deliberating, and convicting, Mr Tsalapatis on a thitherto unspoken prosecution case, for which there was no evidential foundation. In the context of the prosecution’s case, and the issues raised on the trial, we are not satisfied that there has been any miscarriage of justice.
Ground 2 – honest and reasonable mistake of fact
Neither the prosecutor nor defence counsel raised the question of honest and reasonable mistake of fact in the course of the trial. Unsurprisingly, therefore, the Judge did not advert to it. It is well-accepted, however, that if the defence was reasonably open on the evidence, then the Judge was obliged to direct the jury thereon notwithstanding any forensic decisions made by counsel at trial, such that any failure to do so would occasion an error of law and miscarriage of justice.[1] The defence of honest and reasonable mistake of fact absolves an accused of criminal responsibility for a strict liability offence where: [2]
… he … make[s] it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe.
[1] See, eg, Pemble v The Queen (1971) 124 CLR 107, 117-118 (Barwick CJ, Windeyer J agreeing); Gillard v The Queen (2003) 219 CLR 1, 13-14 [25]-[26] (Gleeson CJ and Callinan J); James v The Queen (2014) 253 CLR 475, 488-9 [31]-[32] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); Basanovic v The Queen (2018) 100 NSWLR 840, 853-4 [78]-[79] (Simpson AJA, Bellew and Wilson JJ agreeing).
[2] Proudman v Dayman (1941) 67 CLR 536, 541 (Dixon J). See also Bell v Tasmania (2021) 274 CLR 414, 431-2 [52] (Edelman and Gleeson JJ, Kiefel CJ and Keane J agreeing).
As a defence, honest and reasonable mistake of fact seldom arises in charges of this kind. Commonly, the reasonableness on which the defence of mistake of fact rests, in cases such as the present, will be determined in the same way as the question of dangerousness, recklessness, or culpable negligence. Ground 2 raises the question of whether the particular circumstances of this case provide an evidentiary basis for the defence of honest and reasonable mistake of fact, which is not negated by, or logically inconsistent with, a finding of dangerousness. Section 19A provides:
19A—Causing death or harm by dangerous use of vehicle or vessel
(1)A person who—
(a)     drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and
(b)     by that culpable negligence, recklessness or other conduct, causes the death of another,
is guilty of an indictable offence.
…
(3)A person who—
(a)     drives a vehicle or operates a vessel in a culpably negligent manner, recklessly, or at a speed or in a manner dangerous to any person; and
(b)     by that culpable negligence, recklessness or other conduct, causes harm to another, is guilty of an indictable offence.
…
A consideration of the relationship between the elements of the offence of dangerous driving contrary to s 19A of the Act and the defence of an honest and reasonably grounded belief in a fact which, if true, is exculpatory must commence with the decision of the High Court in Jiminez v The Queen.[3]
[3] (1992) 173 CLR 572 (‘Jiminez’).
Mr Jiminez in that case was charged with an offence contrary to s 52A of the Crimes Act 1900 (NSW), which, insofar as it criminalises dangerous driving causing death and dangerous driving causing injury, is the statutory equivalent of s 19A. When the appellant fell asleep at the wheel of his car, it failed to take a curve and collided with a tree. A passenger was killed. Mr Jiminez’s conviction was affirmed by the New South Wales Court of Criminal Appeal. The High Court set aside the conviction and, in the special circumstances of the case, declined to order a retrial. Chief Justice Mason, Brennan, Deane, Dawson, Toohey, and Gaudron JJ identified the prosecution case on why the driving was dangerous as follows:[4]
It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as “driving in a manner dangerous” is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury.
[4] Jiminez, 579-80.
We would emphasise here that the primary prosecution case on the dangerousness of Mr Jiminez’s driving, identified in that passage, was that, whether he had appreciated it or not, he had been driving dangerously drowsy before he fell asleep. Accordingly, it was objectively dangerous for Mr Jiminez to be driving in that state. It could be inferred that Mr Jiminez was dangerously drowsy from the very circumstance that he did fall asleep, and from the long period for which he had been driving, the lighting conditions, and the heating and lack of ventilation in the vehicle. In addition to objective factors of that kind, of which there was evidence in that case, in some cases there may also be evidence that the driver appreciated that he or she was drowsy before falling asleep. If evidence of that kind were adduced, it would add further support for a finding that the driving was dangerous. As it happened on the evidence in that case, there was no such prior warning of just how tired Mr Jiminez was.
The plurality in Jiminez approved the following passage from the plurality of the High Court in R v Coventry,[5] sitting on an appeal from this Court, on the availability of the defence of reasonable mistake of facts on a charge of dangerous driving:[6]
No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial. But, speaking generally, the expression ‘driving at a speed, or in a manner, which is dangerous to the public’ describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence.
[5] (1938) 59 CLR 633, 638 (Latham CJ, Rich, Dixon and McTiernan JJ).
[6] Jiminez, 582 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).
We would emphasise the Court’s observation on the exceptionality of those circumstances in which, on a charge of dangerous driving, the driver’s state of mind may be material, and that the element of driving dangerously generally is established by the actual behaviour of the driver and not his or her state of mind.
The plurality then considered the relationship between honest and reasonable mistake of fact and the objective elements of the offence:[7]
… Driving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault, but it will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver. Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order. And the same issue is raised when, in a case like the present where the dangerous manner of the driving is said to consist in the likelihood of going to sleep, a driver claims that he had no warning of the onset of sleep.
It follows from what has been said above that it was necessary for the prosecution in the present case to establish that the applicant was affected by tiredness to an extent that, in the circumstances, his driving was objectively dangerous. It was open to the jury to draw an inference to that effect from a finding that the applicant went to sleep at the wheel. It was, however, also open to the jury to find that the applicant honestly and reasonably believed that, in all the circumstances, it was safe to drive. Apart from any inference that might be drawn from the fact that the applicant has fallen asleep, there was little in the evidence to support a finding that the applicant had felt drowsy or that he had reason to believe that he was tired. He had four hours’ sleep shortly before setting out on the trip and a further period of up to three hours while the deceased woman drove the car. He had not been driving for an excessive period before the accident. There was no evidence before the jury that he had consumed any alcohol or drugs. He was thinking of stopping at the next town, but that could be explained by his statement that he intended to have breakfast there. The fact that he slept for some hours after the accident could, in the light of other evidence including evidence that he was emotionally upset and affected by grief, scarcely found an inference that he had had insufficient sleep beforehand. In these circumstances, the inference that the applicant believed that, in all the circumstances, it was safe to drive might have been drawn by the jury from the very fact of his driving. The absence of any warning of the onset of sleep, if the jury found that there had been none, laid a foundation for that being an honest and reasonable belief. Lack of warning as to the onset of sleep is only one of a number of circumstances that may bear on the question whether a driver honestly and reasonably believed that it was safe for him to drive. Ordinarily, the circumstances which bear on whether the driving was dangerous will also bear on this question.
If, in a case based on tiredness, there is material suggesting that the driver honestly believed on reasonable grounds that it was safe for him to drive, the jury must be instructed with respect to that issue. In particular, they must be told that if they conclude that the driving was a danger to the public, they must also consider whether the driver might honestly have believed on reasonable grounds that it was safe for him to drive. And, of course, they must be instructed in appropriate terms that the onus of negativing that defence rests with the prosecution. That did not happen in this case, presumably because neither counsel nor the trial judge appreciated the real nature of the issue raised.
(Footnotes omitted)
[7] Ibid, 583-4.
The focus of the plurality in Jiminez on the particular nature of drowsiness and falling asleep, and the further example of the effective condition of the car being driven, is important. They are factors extraneous to the manner of driving, in the sense of the management of the vehicle, including maintaining a proper lookout. A person who drives when he or she is in fact physiologically fatigued, or who drives a vehicle with mechanically defective brakes, has, objectively viewed, driven in a dangerous, reckless, or culpably negligent manner, whether or not they have a subjective appreciation of either of those attendant circumstances. The strictness of that position is ameliorated by the availability of the defence of honest and reasonable mistake of fact if the driver believes, on reasonable grounds, that he or she is not so tired as to be at risk of falling asleep or that the brakes of the vehicle are mechanically sound. The same analysis cannot be applied in a case in which it is alleged that the driver’s lookout was objectively dangerous, reckless, or culpably negligent.

It is neither to the point that Mr Tsalapatis did not observe or appreciate the signage alerting him to the approaching intersection — whether by reason of veiling luminance, inattention, or otherwise — nor that he honestly believed that, accordingly, there was no such intersection ahead of him.
It was the very fact that Mr Tsalapatis was not keeping a proper lookout, and thus, missed or failed to appreciate the signage alerting him to that intersection, that, on the prosecution’s case, characterised his driving as relevantly dangerous. To say, then, that the Judge ought to have directed the jury that they could return a verdict of not guilty by reason of an honest and reasonably held mistake of fact made by Mr Tsalapatis leads to a paradox: that is, it is the very mistake upon which Mr Tsalapatis claims he had honestly and reasonably made that bespeaks the dangerousness of his driving. In this respect, the following observations of White J in Hughes v Police (SA) are apposite:[8]
The appellant contended that he had an honest and reasonable belief that his driving was not dangerous to the public. He submitted that this by itself constituted the defence of honest and reasonable mistake of fact. Again, I do not accept that submission. There is a difficulty in concluding, on the one hand, that a reasonable person in the appellant’s position would have appreciated the risk of injury or harm to members of the public which his driving involved and, on the other, accepting that the appellant could reasonably have thought that his driving did not involve such a danger.
There are circumstances in which a defence of honest and reasonable mistake may be available to a person charged with an offence of driving in a manner which is dangerous to the public. A mistaken belief about the roadworthiness of the vehicle is an example commonly given in the authorities. In Jiminez v The Queen the High Court considered that an honest and reasonable mistake by a driver about the state of his mental alertness may provide a defence to a charge of driving in a manner dangerous. However, the appellant did not point to any authority in which, absent a mistake as to some matter of fact, the defence had been held to be available simply because the driver was subjectively mistaken about the safety of his or her driving.
[8] (2009) 103 SASR 337, 353 [76]-[77] (White J).
While it may be accepted, as the appellant submits, that White J’s observations in Hughes v Police (SA) were expressed obiter, that does not detract from their persuasiveness in rejecting a place for the defence of honest and reasonable mistake of fact in cases such as the present.
To contend that the defence is available, notwithstanding the driver’s objectively dangerous lookout, on account of environmental factors which contributed to the failure to see an approaching danger, which all motorists are by reason of a normative standard expected to notice, would modify the normative standard which is inherent in the very offence. By contrast, the normative standard does not require the ordinary driver to know that which only an expert can know. Only a motor vehicle mechanic could discover a latent defect and only a physician could prognosticate on the risk that a driver in particular circumstances might fall asleep at the wheel. Moreover, the normative standard does not require examinations of that kind to be undertaken by drivers every time they take control of a motor vehicle unless they have had some prior warning of the relevant risk. There can be no application of the defence of honest and reasonable mistake of fact where the very mistake relied upon to support the defence is, in itself, the mistake from which the dangerousness of the offender’s driving arises. There is only space for the defence when the exculpatory fact which is reasonably believed is not a fact that drivers are expected to know and get right.
There is Queensland authority which appears to support Mr Tsalapatis’ submission. In R v Wilson,[9] the Queensland Court of Appeal considered an appeal against a conviction for dangerous operation of a motor vehicle causing death and grievous bodily harm. The case was one where Mr Wilson drove his motorcycle, in the course of overtaking a vehicle in front of him, on the wrong side of the road, thereafter colliding with a motorcycle coming in the opposite direction. Mr Wilson gave evidence that he believed that there was no oncoming traffic when he commenced to overtake. He was distracted momentarily by the car he was overtaking, which was veering towards his motorcycle. The Judge left the defence of honest and reasonable mistake of fact to the jury, by asking them to picture themselves as the ‘theoretical, ordinary, reasonable person pulling up to overtake at whatever speed you think he did and consider whether an ordinary, reasonable person could have made that mistake’.[10] The trial Judge continued:[11]
… It really comes down to this, members of the jury, would an ordinary, reasonable person, keeping a reasonably good lookout, that you would expect an ordinary, reasonable person to do when starting to overtake a vehicle in front at that speed, would such an ordinary, reasonable person have looked closely and carefully enough to observe Mr Wood’s oncoming motorcycle.
The prosecution conceded that that was an error. The Court of Appeal held:[12]
Mr Collins now submits that the primary judge erred in directing the jury to consider mistake of fact by reference to whether the jury were satisfied that any reasonable person in Mr Wilson’s position would or should have observed Mr Wood’s oncoming motorcycle. Mr M J Copley, who appears for the respondent in this appeal, with his customary balance, concedes that the judge’s directions were wrong: the correct question was whether the prosecution proved beyond reasonable doubt that there were no reasonable grounds for Mr Wilson’s honest but mistaken belief that it was safe to overtake the Pulsar.
Mr Copley’s concession is rightly made for the following reasons. It is clear from its terms that s 24 requires a consideration of whether there were reasonable grounds for the accused person’s belief as to a state of things, not, in the primary judge’s words, whether a theoretical, ordinary, reasonable person would or should have made the mistake. The belief must be both subjectively honest and objectively reasonable but it is the accused person’s belief which is of central relevance. An accused person may hold an honest and reasonable but mistaken belief as to a state of things even though another ordinary, reasonable person may not have made that mistake. This distinction, which is admittedly subtle, was noted by this Court in R v Julian when discussing self defence under s 271 Criminal Code and more recently in R v Mrzljak when discussing s 24. The primary judge instructed the jury to focus on whether the mistake was reasonable in that the jury “must be satisfied beyond reasonable doubt that an ordinary, reasonable person would not have made that mistake”. The judge told the jury to “picture yourselves the theoretical, ordinary, reasonable person pulling up to overtake at whatever speed you think he did and consider whether an ordinary, reasonable person could have made that mistake”. The judge instructed the jury that the case really came down to “would an ordinary, reasonable person have looked closely and carefully enough to observe Mr Wood’s oncoming motorcycle”. The judge asked the jury whether they were “satisfied beyond reasonable doubt that any reasonable person in Mr Wilson’s position would have or should have observed the oncoming motorcycle”. Nowhere in the judge’s directions on s 24 did his Honour emphasise to the jury the need to focus on whether they were satisfied beyond reasonable doubt that Mr Wilson’s belief, that there were no oncoming motor vehicles when he overtook the Pulsar, was not reasonable.
(Citations omitted)
[9] [2009] 1 Qd R 476 (‘Wilson’).
[10] Ibid [17].
[11] Ibid.
[12] Ibid [19]-[20].
The reasoning of the Queensland Court of Appeal in that case reads into the offence of dangerous driving as having two different standards of reasonableness. The first informs the jury’s normative judgment of what amounts to culpable negligence or dangerous driving on the facts of any given case.
The second informs the defence of honest and reasonable mistake of fact. However, it is not obvious to us how the standard of reasonableness for the grounds of an honest mistake of fact is to be identified if it is not related to the jury’s assessment as to whether a driver has driven with culpable negligence, or objective dangerousness, or recklessness. However, if it is different, as the Court in Wilson held, it necessarily results in the incoherence to which we have referred.
The premise, however, is founded on the concession of the prosecutor that the directions on the elements of the defence of honest and reasonable mistake of fact were erroneous and the further, implicit, concession that the circumstances of the case required that defence to be left to the jury. The judgment of the Court in Wilson proceeded on an acceptance of those concessions, and importantly, for present purposes, without a consideration of the exceptional place of the defence in culpable negligence cases and the limited circumstances for its application identified by the High Court in Jiminez. Respectfully, we have come to the view that the premise of the decision is plainly wrong.
Indeed, there is earlier Queensland authority to the contrary.
In R v Plath,[13] the Court of Appeal dismissed an appeal against a conviction of dangerous operation of a motor vehicle causing grievous bodily harm driving brought on the ground that the Judge had failed to direct the jury on the defence of honest and reasonable mistake of fact. The dangerous driving alleged was failing to keep a proper look out, driving too close to the vehicle in front, overtaking when it was unsafe to do so, and driving on the incorrect side of the road. Williams JA, with whom Chesterman and McMurdo JJ agreed, gave these reasons for dismissing the appeal:[14]
Th submission by the appellant that the learned trial judge failed to leave a defence based on s 24 of the Criminal Code to the jury is without merit. Section 24 has no application in a situation such as this. The appellant’s contention is that he had an honest and reasonable belief that it was safe to go around the car ahead of him and that he honestly and reasonably believed that there was no pedestrian on the road. Those matters go to the very heart of the issue whether or not there was dangerous driving. One does not need to engage s 24 in order to make a reasonable belief held by the driver of the motor vehicle relevant when determining whether or not the vehicle was driven dangerously. Attempting to direct on s 24 in the circumstances would only have confused the issue in the minds of the jury.
[13] [2003] QCA 567 (‘Plath’).
[14] Ibid [7].
In Wilson, McMurdo P dismissed a submission that the decision in Plath was inconsistent with Jiminez as follows:[15]
Mr Collins submitted that the more recent 2003 decision of this Court in R v Plath was inconsistent with Jiminez. I do not accept that submission. Plath is authority for nothing more than that, in the circumstances pertaining there, s 24 had no application. It did not purport to decide that s 24 had no application to offences against s 328A generally or that faulty was an element of the offence of dangerous driving.
[15] Wilson [14].
We respectfully agree that the decision in Plath is not inconsistent with the decision in Jiminez, but that is because, as we have attempted to explain, Jiminez was dealing with a case of drowsiness, which like cases of latent vehicular defects, is not concerned with the management of the vehicle. However, no legally significant distinction can be drawn between the circumstances pertaining in Plath and those in Wilson. Finally, we observe that in R v Perham,[16] Mullins P approved the remarks of Williams JA in Plath:[17]
There was only a slight distinction between the principal issue of fact that the jury had to decide on the prosecution case and the issue raised by the application of s 24 of the Code on whether the appellant’s mistaken belief that there was no oncoming traffic when he proceeded to turn across the eastbound lane (which in turn depended on whether he had looked properly before proceeding) was reasonable. The trial judge directed on s 24 of the Code in response to the request that he do so made by both counsel at the trial and there was no error in his so doing. Equally, because the factual issue that was relevant to excluding the defence under s 24 of the Code was in substance in this case not open to any different answer that the principal factual issue, there would arguably have been no error if the trial judge had not directed on s 24 of the Code. The comments made by Williams JA in Plath are apposite in this regard…
(Citation omitted)
[16] [2016] QLA 123.
[17] Ibid [34].
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.

The distinction drawn by the Judge between driving dangerously and driving without due care is completely orthodox. Juries have long been directed in those terms.
We observe that gross inattention is also used as an example of dangerous driving when dealing with the elements of causing death by dangerous driving. The Judge gave the directions, which are impugned by Ground 3.
The Judge continued:
… [The defence] submits that the prosecution has not excluded, as a reasonable possibility, that, in those circumstances, a reasonable person, in the situation of the driver, would not recognise that the manner of driving involved driving without due care and attention. That is jumping ahead to the alternative charge.
The defence submit that Mr Tsalapatis’s driving has not been proven to be criminal at all by the prosecution.
The question as to whether a person has driven without due care is to be determined objectively. That means, from the perspective of a reasonable person, in the situation of the driver in a like or similar situation. In determining whether a driver has departed from the standard, it is not relevant whether the driver was unaware of or did not consider the risk in which the manner of his driving presented.
I have already outlined to you the prosecution and defence cases about the manner of the accused’s driving and you will remember I took you through what the prosecution alleges amounted to gross inattention. They are the same factors that would apply in this charge, but obviously if you are down to the level of driving without due care, you are not regarding them as gross inattention, but inattention, nonetheless.
(Emphasis added)
The Judge expressly put the directions in context by reminding the jury of his directions on dangerous driving. In that context, the jury can only have understood the reference to gross inattention to mean driving which they, the jury, were satisfied was dangerous. There has been no miscarriage of justice established in the Judge’s directions.
Ground 5 – exclusion of expert evidence
Ground 5 complains that the Judge erroneously ruled that the following expert opinion of Dr Anderson was inadmissible:
Further insight might be gained from considering how drivers detect salient features at intersections. For example, Lemonnier et al (2002) studied drivers’ visual attention at intersections, highlighting the significance of what they described as ‘top‑down’ factors in drivers’ perceptions as they approach an intersection. These include the value of visual information at the intersection, bandwidth of attention, and familiarity with the environment, influencing how drivers allocate their visual attention. The findings of this study indicate how a driver in the position of the defendant might fail to appreciate that they are required to give way at the intersection:
Low Expectancy and Priority: when a driver has had priority for the preceding part of their trip, they may develop a low expectancy for needing to yield at upcoming intersections. This expectancy is a top-down factor influencing where and how drivers allocate their attention. If a driver expects that they will continue to have priority, they may not allocate sufficient attention to search for and process. Give Way signs or other traffic control devices that indicate change in priority. As described below, there is a high possibility that the glare at the scene reached disabling levels, reducing the efficacy of the Give Way signs. Glare may reduce allocation of attention to salient information, which could lead to a failure to give way when required.
(Emphasis added)
The first cited paragraph is introductory only. Of itself, it is not probative of any fact in issue. The last two sentences of the last paragraph refer to the opinion, which Dr Anderson did give in evidence, on the effects of sun glare, veiled luminance, and conspicuity generally. The opinion which was excluded is underlined. Of itself, it does no more than explain the phenomenon, well‑known to all drivers, of falling into reduced alertness when the road conditions remain constant and hazardless over a lengthy period of time.
However, there was no evidence that the periods, distances, and traffic conditions of the study were comparable to those encountered by Mr Tsalapatis on his journey before the collision. Even if the journeys were comparable, the study did no more than reveal the lazy driving patterns some drivers fall into, and which the normative standard which underpins the offence requires them not to do. That normative standard is not developed by drawing a line in a bell curve at a certain percentile which delineates the reasonable driver from the unreasonable driver. It is determined by the jury passing judgment for the community on the standards which it judges to be dangerous, or reckless, or culpably negligent. The opinion expressed by Dr Anderson is a matter of ordinary human experience which falls well within the province and experience of the jury. It is a matter for the jury alone to judge the extent to which that consideration informs the standards which the community expects of those who drive on its roads.[18]
[18] Cf R v Turner [1975] QB 834, 841-842 (Lawton LJ); Lindsay v The Queen (2015) 255 CLR 272 [33]-[39] (French CJ, Kiefel, Bell and Keane JJ).
The evidence was not admissible. We would dismiss Ground 5.
Conclusion
We would grant permission to appeal, but would dismiss the appeal.