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District Court 22 May 2026

R v Sabra (Costs)

[2026] NSWDC 158

Traffic & driving

Citation: R v Sabra (Costs) [2026] NSWDC 158
Court: District Court of New South Wales
Date: 22 May 2026
Judge(s): Newlinds SC DCJ

Background

The applicant was tried before a jury on a single count of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW). The jury acquitted him on 13 March 2026. The Crown then proceeded on a summary charge of negligent driving occasioning death under s 117(1) of the Road Transport Act 2013 (NSW), relying on the same evidence. Newlinds SC DCJ acquitted the applicant of that charge on 27 March 2026 (reasons published in R v Sabra [2026] NSWDC 70).

The applicant then sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) in respect of both charges. The Crown opposed the application, and an oral hearing took place on 21 May 2026.

The prosecution case was entirely circumstantial. It stood or fell on a single inferential finding: that the deceased, Mrs Nasr, was still in the process of crossing the road and had not yet reached the centre traffic island at the point of impact. No primary facts were in dispute, no witnesses were materially cross-examined, and nothing turned on credibility or reliability.

  • Whether, applying ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW), it would not have been reasonable for the prosecution to institute proceedings if it had possessed all relevant evidence beforehand.
  • Whether the circumstantial nature of a prosecution case, without more, can justify the reasonableness of commencing proceedings.
  • Whether the existence of a case to answer at the close of the Crown's case is the relevant test under the Act.
  • Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings.

Decision

Newlinds SC DCJ found that the Crown case was "fatally flawed." The prosecution could not establish beyond reasonable doubt that an alternative hypothesis (that Mrs Nasr had reached the centre island and then inexplicably moved back into the path of the applicant's car) did not occur. The court had identified multiple reasons why the alternative hypothesis was rationally and reasonably open, including the absence of expert evidence on the time required for Mrs Nasr to cross the relevant distance, the consistency of physical evidence with the competing inference, and unsafe assumptions built into the Crown's case theory.

The court rejected the Crown's submission that the mere reliance on circumstantial evidence and inferential reasoning rendered it reasonable to prosecute. His Honour held that nothing in the decided cases supported the proposition that a prosecutor could reasonably commence proceedings while acknowledging that the case had no reasonable prospect of conviction, simply because the case was circumstantial. To limit the statutory test in that way could not be justified as a matter of statutory construction.

The court also rejected the Crown's reliance on whether there was a case to answer at the close of the prosecution case. The statutory test under s 3 requires consideration of all relevant evidence, including evidence answering the Crown case. The existence of a prima facie case is not the correct measure of reasonableness.

No act or omission of the applicant contributed to the institution or continuation of the proceedings. The applicant had cooperated fully with the police investigation, including giving two interviews on the day of the incident. The court was satisfied on the balance of probabilities that it would not have been reasonable to institute the proceedings, and exercised its residual discretion in favour of granting the certificate.

Orders Made

  • A costs certificate was granted under the Costs in Criminal Cases Act 1967 (NSW) in respect of both the indictable charge and the summary charge.

Key Takeaways

  • A prosecution case that stands or falls on a single inference drawn from undisputed primary facts may be found to have been unreasonable to institute where a competing hypothesis is rationally and reasonably open on all the evidence.
  • The circumstantial nature of a Crown case does not, of itself, make it reasonable to prosecute. The District Court expressly rejected the proposition that inferential reasoning immunises the prosecutorial decision from scrutiny under ss 2 and 3 of the Costs in Criminal Cases Act 1967 (NSW).
  • Under the Act, the relevant question is not whether a case to answer existed at the close of the Crown case, but whether, armed with all relevant evidence (including defence evidence), a hypothetical prosecutor would have found it reasonable to institute proceedings.
  • Where no primary facts are in dispute and nothing turns on the credibility or reliability of witnesses, the general principle that costs certificates are not warranted in credibility cases has no application.
  • Full cooperation with the police investigation, including voluntary interviews that became evidence at trial, supported the finding that no act or omission of the applicant contributed to the proceedings being commenced or continued.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), s 52A
- Road Transport Act 2013 (NSW), s 117
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Sabra [2026] NSWDC 70
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- R v Manley [2000] NSWCCA 196
- R v Johnston [2000] NSWCCA 197
- R v Fesja (1995) 82 A Crim R 253
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510
- R v Greentree [2019] NSWSC 216
- Beatson v R [2015] NSWCCA 17
- Higgins v R (No 2) [2022] NSWCCA 82
- DPP (NSW) v Davies [2025] NSWCCA 177
- Ramskogler v DPP (1995) 82 A Crim R 128
- Rodden v R [2023] NSWCCA 202
- Liberato v The Queen [1985] HCA 66
- R v Warwick Ian McFarlane (unreported, NSWSC, 12 August 1994)