//
[2026] NSWDC 70
General information, not legal advice.
District Court of NSW
2026-03-27
Newlinds SC DCJ
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Sabra [2026] NSWDC 70
Hearing dates: 25 March 2026
Date of orders: 27 March 2026
Decision date: 27 March 2026
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision: (1) As to the charge of negligent driving occasioning death pursuant to s 117(1)(a) of the Road Transport Act 2013 (NSW), I find the Accused, Abbas Sabra, not guilty.
Catchwords: CRIME — Driving offences — Negligent driving causing death — Negligence particularised as failing to keep proper lookout — Accused did not see 83-year-old lady pedestrian until moment before impact — No direct evidence of what the deceased was doing prior to impact — Inferences — Competing inference reasonably open — Accused account — No reason not to accept — Consistent with all other evidence — Verdict of not guilty
CRIMINAL PROCEDURE — Trial — Section 166 Criminal Procedure Act 1986 — Matter referred to District Court as “back-up charge” to dangerous driving causing death — Jury acquitted Accused of dangerous driving — Hearing before judge on negligent driving causing death on same evidence as was put before the jury
Legislation Cited: Crimes Act 1900 (NSW) s 52A(1)(c)
Criminal Procedure Act 1986 (NSW) s 133; s 168
Roads and Transport Act 2013 (NSW) s 117
Cases Cited: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301
DPP (NSW) v Yeo (2008) 51 MVR 157
Hawthorne v Hillcoat [2008] NSWCA 340
R v Fong [2020] NSWDC 214
Royall v The Queen (1991) 172 CLR 378
Swan v The Queen [2020] HCA 11
Category: Principal judgment
Parties: Rex (Crown)
Abbas Sabra (Accused)
Representation: Counsel:
S Sloane (Crown)
P Lange SC (Accused)
Solicitors:
ODPP (Crown)
Kings Law Group (Accused)
File Number(s): 2024/125431
Publication restriction: Nil
On 13 March 2026 after a four-day trial before me and a jury of 12, the jury found Mr Sabra (“the Accused”) not guilty of one charge of driving a motor vehicle in a manner dangerous whereby the vehicle was involved in an impact as a result of which Mrs Hayat Nasr was killed (s 52A(1)(c) Crimes Act 1900 (NSW)).
There had been referred from the Local Court an alternative “backup charge" of “negligent driving causing death" as a consequence of which, pursuant to the terms of s 168 of the Criminal Procedure Act 1986 (NSW), I am now required to determine as if I was a magistrate in the Local Court.
The parties have relied on the same evidence that was before the jury, together with supplementary submissions based on the different legal test between the dangerous driving charge dealt with by the jury and the negligent driving charge that is now before me.
For the following reasons I have determined that the Accused is not guilty of “negligent driving causing death.”
The circumstances of the incident are as tragic as they are in short compass. All of the primary facts relied upon by the Crown are not in dispute.
What was in issue before the jury, and remains in issue before me, is, what inferences can be properly drawn from those primary facts?
There is no dispute as to the following facts. On 11 November 2023, Mrs Nasr, who was an elderly lady in her 80s, was walking in a westerly direction along the footpath on the north side of Eighth Avenue, Campsie, towards the intersection with Fifth Avenue. At around the same time, the Accused was driving his father's Toyota motor vehicle in a southerly direction along Fifth Avenue, Campsie towards that same intersection. The speed limit was 50km/h, Fifth Avenue is a long straight road. The day was clear and there were no obstructions to a clear line of sight.
Mrs Nasr is captured on CCTV footage walking along Eighth Avenue in the direction of Fifth Avenue but goes out of view as she approaches the intersection of Fifth Avenue. From the moment she goes out of view, there is a period where the CCTV camera captures a number of cars going in either direction along Fifth Avenue. There are two “gaps” of 10 seconds and 14 seconds respectively between cars going south. The footage culminates at about 1 minute and 15 seconds, with the audio picking up a horrible “crash” sound, with the Accused’s vehicle coming into view with the body of Mrs Nasr cartwheeling over it and landing on the road in Fifth Avenue.
There is no dispute that the Accused immediately veered his vehicle to the left and pulled over to the side of the road on Fifth Avenue with his driver’s side front wheel colliding with the gutter. There was damage to the front of the car directly in front of the driver’s seat (i.e. on the right-hand side). The Accused got out and immediately approached Mrs Nasr who was badly injured lying on the road but still alive. He called 000 and said, amongst other things:
“She jumped in front of car…"
At the same time, fifth year medical student, Lynn Yan Zhou, was walking in Fifth Avenue. She heard, but did not see, the collision or its lead up and also rang 000. She, together with an unidentified lady who appears to have been a nurse, administered first-aid on Mrs Nasr until a paramedic ambulance arrived.
I will not go into the details of the injuries sustained by Mrs Nasr. Suffice to say she died at the scene and there is no doubt but that the cause of her death was the impact of the Accused’s car.
The Accused remained at the scene and was interviewed by a police officer not long after the incident, which was captured on body worn video.
During that interview, which was short, the Accused, who is clearly in shock, relevantly said the following:
“she just went into the car"… “she walked off the curb"… “She was on curb came into me"
I should indicate that it is accepted by the Crown, and, in any event, I am satisfied beyond reasonable doubt that the curb the Accused was referring to was what might sometimes be described as a traffic island or median strip in the centre of Fifth Avenue.
Set out below in the written form of this judgement is Exhibit S, with an ‘X’ indicating where the Accused later in a police interview indicated the possible collision point. In that photograph, the curb being referred to by him in that first interview can be seen in the middle of Fifth Avenue.
I will also set out a diagram prepared by a police officer (‘Exhibit L’), which diagrammatically sets out where that curb or median strip is in the centre of Fifth Avenue and also shows a curb at the end of Eighth Avenue. The distances in the diagram are approximate, but I am satisfied they are accurate enough to be relied upon. Significantly, I am satisfied that the distance from the kerb on the east side of Fifth Avenue adjacent to the intersection with Eighth Avenue and the centre of the traffic island is about 5.4m.
Later that same afternoon, the Accused was interviewed at the police station. That interview was electronically recorded. In that “ERISP," he was questioned on a number of occasions as to if and when he saw Mrs Nasr prior to the collision.
The consistent tenor of his evidence was that he did not see her before the instant prior to the collision.
The topic was returned to on a number of occasions during the interview, and his statements included the following:
“she jumped in front of me"… “saw her - swerve to the left"… “she J-walked"… “saw her as soon as in front"… “did not see her on the island"… “did not notice (her)”… “she came from the right-hand side"… “she came out of nowhere"
The Accused also physically indicated on a number of occasions during the ERISP from which direction Mrs Nasr came, and he consistently indicated his right-hand side.
The Accused also said when asked where he was looking that he was “paying attention to the road" … “I was looking in front of me" and finally he said, “there was no possible way I could have avoided the collision.”
There was no issue between the parties before the jury for the purpose of the dangerous driving charge, nor before me for the purpose of the negligent driving charge, that:
The Accused was driving the vehicle that collided with Mrs Nasr;
He was driving that vehicle in a southerly direction along Fifth Avenue, which has a speed limit of 50 km/h, at approximately 52 km/h;
Very near the centre median strip of Fifth Avenue, the vehicle collided with Mrs Nasr, which resulted in her death; and
Before the instant prior to the collision, the Accused did not see Mrs Nasr.
The Crown particularised both the dangerous driving and the negligent driving charge as, “the Accused failed to keep a proper lookout for pedestrians in the vicinity of the intersection of Eighth and Fifth Avenue.”
The Crown's case was that Fifth Avenue is a straight road, there were no obstructions, and it was a bright sunny day. Therefore, so the Crown submissions went, if the Accused had been keeping a proper lookout, he would have seen Mrs Nasr and avoided the collision.
The statutory command in s 117 of the Roads and Transport Act 2013 (NSW) (“Roads and Transport Act”) requires the Court when considering this charge to have regard to all of the circumstances of the case, including what are set out in subparagraphs (3)(a)-(c).
The Crown submits, and I do not think there is any dispute about any of this, that the nature and conditions of the road at the time was that it was straight and clear, had a 50km/h speed limit, was in a built-up area, and in the middle-of-the-road there was a traffic island. The amount of traffic at the time was light and there were no relevant obstacles or obstructions on the road. The time of day was daytime, and the weather was clear and sunny. All of that may be accepted.
The essential underlying issue of fact between the parties, which is the suppressed premise of the Crown’s submissions, is, whether Mrs Nasr, as the Crown contends, was still in the process of crossing Fifth Avenue, and had yet to reach the median strip in the centre of Fifth Avenue when the Accused’s car collided with her?
On the other hand, the Accused contends that it is more likely than not that Mrs Nasr had reached the centre island of Fifth Avenue prior to the collision, and then for inexplicable reasons had gone back the other way, straight into the path of the Accused’s vehicle.
There is no direct evidence going to this essential fact. The question becomes, whether the inference contended for by the Crown is proved beyond reasonable doubt?
Because this is a criminal charge, the Crown is required to prove, beyond reasonable doubt, inferential findings based on the proved circumstances. To do this, the Crown must persuade the tribunal of fact that the inference it seeks is the only rational inference available in the circumstances.
As I directed the jury in the dangerous driving charge, and as I remind myself for the purpose of this hearing, the legal requirement for the Crown to prove that inference beyond reasonable doubt is:
“I must be satisfied of the inference beyond reasonable doubt and I should not draw the inference from the evidence, unless it is the only reasonably available inference to be drawn from the evidence. I cannot be satisfied beyond reasonable doubt if there are any other reasonably available inferences.”
“Ordinarily no particular fact or circumstances relied upon in a circumstantial (inferential) case needs to be proved beyond reasonable doubt. There are, however, some circumstantial cases, and I consider this to be one, where one or more of the facts relied upon by the Crown, is or are so fundamental to the process of reasoning to the guilt of the Accused so that fact or facts must be proved beyond reasonable doubt. Such facts are referred to as “intermediate fact(s)” and are sometimes described as an indispensable “link in the chain" of reasoning towards an inference of guilt.
It is for me as the judge of the law to determine as a matter of law if any particular fact or facts, is or are, an intermediate fact.
If I reach the conclusion, the direction to myself must be that before I can find guilt based on an inference, I must be satisfied of that fact beyond reasonable doubt from circumstances that include one or more intermediate facts.
In this case, the Crown's case that the Accused was not keeping a proper lookout depends entirely on a finding of fact that Mrs Nasr was still in the process of crossing the road at the time of the impact.
That being the case, I consider that finding, which itself is inferential, to be, not just an essential link in a chain of reasoning towards a finding of negligence, but when one strips away all of the agreed or non-disputed facts, the only finding that could prove the guilt of the Accused.
Accordingly, I direct myself that, notwithstanding that the element of the charge is negligent driving and the particulars are failing to keep a proper lookout, it is essential to a finding of failure to keep a proper lookout, to make a finding as to where Mrs Nasr was on the road and from where she had come, and the Crown needs to prove that finding to my satisfaction beyond reasonable doubt.
I shall return to the other legal directions necessary for me to resolve this case shortly, but focusing on the essential issue, the question becomes, is the inference that Mrs Nasr had yet to reach the median strip or traffic island in the middle of Fifth Avenue but rather was still in the process of crossing Eighth Avenue at the time of the impact the only reasonable inference available?
I have already set out what the Accused contends occurred, but for the purpose of the criminal charge it is not necessary for the Accused to satisfy me of a competing inference. This is not a contest between the inferences, rather if I am satisfied that there is another inference to that contended for by the Crown reasonably available, I must acquit.
It is not possible to discern from the jury’s not guilty verdict what conclusion they did or did not come to as to where Mrs Nasr was because the not guilty verdict is consistent with a finding in favour of the Crown's contention but a non-satisfaction of the second step in the legal test. They may well have acquitted on other bases, including that, even if they thought Mrs Nasr was still crossing the road and that the Accused had not been keeping a proper lookout, that such a breach did not amount to a “serious breach” for the purpose of a conviction for dangerous driving.
I am required to direct myself as to the law as if I was directing a jury: see, s 133 Criminal Procedure Act 1986 (NSW). I have already directed myself as to inferences.
I will not, in detail, repeat the directions I gave the jury last week, and anyone reading this judgment should read it in conjunction with those directions. I have applied the legal principles explained in those directions to my consideration of this matter.
In summary I direct myself as follows:
The onus is on the Crown to prove the elements of the offence;
In this case, the Crown must prove that Mrs Nasr was still crossing the road;
The Accused has the presumption of innocence;
The Crown must discharge its onus beyond reasonable doubt;
The Accused has the right to remain silent;
It is a matter for me as the tribunal of fact to determine what happened as a matter of fact and what inferences should properly be drawn from the primary facts proved. In doing so, I am to judge the matter based on my impression of witnesses, my common sense, logic, and life experience, having regard to the totality of the evidence;
I am to act impartially, fairly, dispassionately, and fearlessly, to use logic and not emotion;
As to inferences, I have already addressed that issue;
In the event that the Accused provides an account as to relevant events, and in circumstances where that account is inconsistent with a finding of guilty, if I accept the Accused’s account I must acquit. If I do not accept the Accused’s account but think it might be true, I must also acquit. If I reject the Accused’s account in its entirety, I do not at that point convict, rather I return to the evidence adduced by the Crown and consider whether that evidence is sufficient to discharge the heavy burden on the Crown to prove the elements beyond reasonable doubt; and
In this case, as the Accused relies on an account of events found in what he said on the 000 call, what he said to the officer at the scene, and what he said in the “ERISP” interview. The relevant aspect of the Accused’s account which engages this direction is his various statements to the effect that Mrs Nasr came from the direction of the median strip (i.e. from his righthand side), rather than was proceeding across the road in the other direction. This account directly contradicts the inference contended for by the Crown.
**“117 Negligent, furious or reckless driving(**cf STM Act, s 42)
(1) A person must not drive a motor vehicle on a road negligently.
Maximum penalty—
(a) if the driving occasions death—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or
(b) if the driving occasions grievous bodily harm—20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence), or
(c) if the driving does not occasion death or grievous bodily harm—10 penalty units.
(2) A person must not drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public.
Maximum penalty—20 penalty units or imprisonment for 9 months or both (in the case of a first offence) or 30 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence).
(3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following—
(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).
(4) In this section —
grievous bodily harm includes any permanent or serious disfigurement.”
It is necessary for the Crown to prove that the Accused was driving the vehicle “negligently," and that negligent driving was the cause of the death of Mrs Nasr.
There is no definition of negligence for the purpose of s 117(1) Roads and Transport Act 2013 (NSW). However, as Abadee SC DCJ explained in R v Fong [2020] NSWDC 214 at [4]-[17]:
There is no definition of negligence, for the purpose of s 117(1) of the RT Act. That provision is to be construed, however, with reference to the objects of the RT Act, which relevantly includes the regulation of road users and improvement in road safety.
Section 117(3) provides that in determining whether the offence of negligent driving on a road is made out, the Court is to have regard to:
“(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes).”
…
The word “occasions” imports the causal connection between the negligent driving and a person suffering grievous bodily harm. This, I consider, required the Crown to prove that the appellant’s negligence was a substantial or significant cause of the grievous bodily harm suffered by Mrs Horsey – it did not need to be the only cause of it (Royall v The Queen (1991) 172 CLR 378 and Swan v The Queen [2020] HCA 11 at [24]).
…
The Crown and appellant jointly referred me to the decision of DPP (NSW) v Yeo (2008) 51 MVR 157, which dealt with a predecessor provision to the current s 117(1)(b) where the Court said that:
“[27] Negligent driving is established where it is proved … that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.
….
[32] It is clear that negligent driving is to be regarded as something less serious than reckless or furious driving or in a manner dangerous to the public...”
Similarly, I do not regard this passage, with respect, to be particularly illuminating. This is one instance where the Court is required to apply what it understands as community standards to an evaluative assessment of whether a motorist has failed to exercise reasonable care. But that evaluative assessment is shaped by the mandatory considerations under s 117(3) of the RT Act, as well as the context indicated by the statement of some of the objects of the RT Act – the regulation of road users and improvement in road safety.
“The standard in respect of the position a driver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight:” Hawthorne v Hillcoat [2008] NSWCA 340 at [47].
At [48], the Court of Appeal also made the important observation that the wisdom of hindsight can often result in an unreasonably and unrealistically high standard being posed and can be to depart from the standard of reasonable skill and care.
I direct myself as to the element of negligence as follows. It is necessary for the Crown to prove that the Accused drove the motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in all the circumstances, and insofar as the causation element is concerned, in direct contradistinction with the shift in onus of proving lack of causation mandated in the dangerous driving charge. It is necessary for the Crown to satisfy me beyond reasonable doubt, that any negligence of the Accused was a substantial or significant cause of the death of Mrs Nasr, accepting that it does not need to be the “only cause.”
One only needs to look at the photographs and diagram to understand that there is roughly 5.4m distance between the curb at the edge of Fifth Avenue to the traffic island in the middle of the road.
If one analyses the CCTV footage there are two periods where there are no cars travelling south on Fifth Avenue between the time where Mrs Nasr goes out of view of the CCTV camera and the moment of impact. I am satisfied that the first period is 10 seconds, and the second is 14 seconds.
The resolution of this case boils down to these competing submissions. The Crown contended that it was not possible for Mrs Nasr, being an old lady who does not appear to have been particularly mobile, to have crossed Fifth Avenue to the centre in either of those timeframes.
On the other hand, on behalf of the Accused, it is contended that there was sufficient time in 10 seconds for Mrs Nasr to travel 5.4m, and again sufficient time for her to travel that distance in 14 seconds.
The Accused also makes the submission that the distance required to be travelled by Mrs Nasr, measured from the actual curb of Fifth Avenue to the middle of the median strip, is not necessarily a sound assumption because, as can be seen from the diagram being Exhibit L, there is, to the north of where Mrs Nasr probably crossed, a traffic island of sorts next to the curb, probably placed there to prevent cars from parking too close to the intersection. If Mrs Nasr had stepped out from the curb and stood behind that structure, which in my opinion would be a perfectly natural and reasonable thing to do, then the distance from where she would have been standing to the median strip would have been quite significantly less than 5.4m.
The police did not engage the specialist crash investigation unit to carry out any forensic examination of the site or the CCTV footage although it was an agreed fact that the average speed of the Accused’s car could be determined by reference to that footage. It would have been possible, it seems to me, for the Crown to tender evidence proving the average speed of Mrs Nasr, at least during the period she can be seen walking down the footpath, and then to perform some arithmetical exercise by reference to that speed and the distance of 5.4m. There is no evidence at all of that kind. It would be wrong for me to speculate as to what the result of such analysis might have been, nonetheless, the lack of such evidence is relevant to the question of proof of the Crown case. In any event, such an exercise would have had its difficulties because it would involve an assumption that Mrs Nasr walked across the road at the same speed she was walking down the footpath. Such an assumption, it seems to me, would not be safe. It is also unsafe to assume that 5.4m is the relevant distance. For reasons I have explained, it is perfectly plausible that it was shorter than that by a metre or so.
I am required to use my common sense and life experience to determine whether the competing inference, that is that Mrs Nasr had crossed Fifth Avenue to the centre island prior to the impact, and that she then turned around and came back the other way stepping out effectively directly in front of the Accused’s vehicle, which collided with her directly in front of the driver's wheel - and I should observe, caused significant injuries to the left side of her body - being consistent with her coming from the right-hand side.
In my opinion, that inference is reasonably open. In my experience, a person walking quite slowly can cover quite a distance in 10 seconds and obviously further in 14 seconds. I consider it is reasonably open to conclude that in either of those time frames Mrs Nasr crossed Fifth Avenue to the median strip in the centre.
For all those reasons, my verdict is not guilty.
Before I leave the matter may I express my own sympathy and the sympathy of the Court to the family of Mrs Nasr. Nothing I have said in these reasons is to be taken as some sort of finding that what happened was her fault. She was an elderly lady who undoubtedly lived a good and full life. For it to end the way it did is a horrible thing. My conclusion is that the Crown has not proved its case that the cause of her death was due to the negligence of the Accused. I am satisfied that what happened was instead a tragic accident for which no one is to blame.
My orders are:
As to the charge of negligent driving occasioning death pursuant to s 117(1)(a) of the Road Transport Act 2013 (NSW), I find the Accused, Abbas Sabra, not guilty.
**********
R
Sabra [2026] NSWDC 70
(2001) 181 ALR 301
(2008) 51 MVR 157
(1991) 172 CLR 378
I am fortified in that conclusion by reference to the various statements made by the Accused in the various recorded statements he made on the day, all of which are entirely consistent. They all have Mrs Nasr suddenly coming into view from his right-hand side.
I see no reason why I ought not accept the Accused's account to the effect that Mrs Nasr came from his right-hand side as he was approaching her, and therefore from the direction of the median strip. In my opinion, he was entirely consistent in that aspect of his various Statements. This finding is wholly destructive of the Crown case. In accordance with the directions I earlier gave myself, it is sufficient to conclude that the Crown has failed to discharge its onus. In reaching my conclusion as to acceptance of the Accused’s account, I have not looked at it in a vacuum but rather have considered the Accused’s account in the context of all the other evidence in the case which includes the damage to the car and the injuries to Mrs Nasr being themselves consistent with her coming from the cars right-hand side.
Accordingly, I am not satisfied that the inference of fact contended for by the Crown is the only reasonably available inference from the primary facts. I am not satisfied beyond reasonable doubt that Mrs Nasr was still in the process of crossing the road, which in accordance with the direction I have given myself, is an essential finding for the Crown's case, and of itself is sufficient to conclude that the Accused is not guilty.
It is not necessary for me to go further, but in deference to Mrs Nasr’s family who have sat through both the trial before the jury and the hearing before me, in my opinion, as sad and inexplicable as it is, what probably happened is that Mrs Nasr did get to the centre of the road and then she has either turned around to come back the other way or has perhaps fallen, tripped, or something has happened to cause her to come out directly in front of the Accused’s vehicle.
I should observe at this stage that the Crown did not run either in the dangerous driving case before the jury, or the negligent driving case before me, an alternative case. In other words, the Crown did not contend that if it was open to conclude that even if Mrs Nasr got to the centre island, that the Accused’s failure to see her there itself amounted to a failure to keep a proper lookout.
Against the possibility that alternative case may be being thought about, there are two short answers to it. Firstly, I do not think that it would amount to a negligent failure to keep a proper lookout for the Accused, in all the circumstances, not to notice a person who had been moving across Fifth Avenue in a westerly direction and was on the median strip in the middle of the road. Second, in any event, if Mrs Nasr came from the right-hand side of the Accused’s motor vehicle and stepped out in front of him, nothing he could have done if he had been keeping a better or different lookout would have made any difference to the tragic outcome.