A magistrate has criticised prosecutors as he threw out their “weak“ case against a diabetic driver who ploughed into and killed five people seated in a beer garden.
Mount Macedon man William Swale, 66, had all 14 charges against him struck out on Thursday following a three-day committal hearing in Ballarat Magistrates Court over the deadly November 2023 crash.
He had been facing five charges of culpable driving causing death, two of negligently causing serious injury, and seven counts of engaging in reckless conduct by driving a motor vehicle with low blood glucose levels.
The type-1 diabetic, who was diagnosed in 1994, suffered a severe hypoglycaemic episode and passed out while driving his white BMW SUV when it crashed into patrons outside the Royal Daylesford Hotel.
About 6.07pm on November 5, Swale mounted a kerb and drove into patrons seated in the pub’s beer garden.
Point Cook woman Pratibha Sharma, 44, her daughter Anvi, 9, and partner Jatin Kumar, 30, and their friend Vivek Bhatia, 38, and his son Vihaan, 11, from Tarneit were all killed, while six others were injured.
Diabetes experts, police, paramedics, and a witness who found Swale sitting behind the wheel looking “wasted“ within one minute of the crash, all gave evidence.
About half an hour before the crash, he tried to get a seat at a deli but was turned away as it was too busy.
His blood sugar levels plummeted from 7.8 to 2.9 within about two hours, the court was told this week.
Following the crash, a paramedic found Swale was below 1.1, which the court heard meant he was close to going into a coma or dying.
His barrister, Dermot Dann KC, asked the court to discharge the case against Swale as his client was unconscious at the time of the collision due to suffering a “severe hypoglycaemic attack“.
Prosecutor Jeremy McWilliams said Swale was a long-term diabetic who should have been aware of the risks of his blood sugar levels declining before he drove into the pub.
However, Magistrate Guillaume Bailin on Thursday afternoon found the prosecution case was flawed and decided not to commit Swale to stand a criminal trial.
He discharged the entire case, as he said there was not enough evidence to support a conviction by a jury on any of the 14 charges.
“The evidence is so weak that the prospects of conviction are minimal,“ he told the court.
The magistrate was critical of the way the Crown had framed their case against Swale, which was that his negligence period began at 5.36pm and not earlier that day.
Because of this, Mr Bailin said his decision was not about whether Swale was being negligent in ignoring warning signs about his declining blood sugar levels, or by driving without getting food.
“This was about one issue – were the actions of the accused from 5.36pm voluntary?“ he said.
“From 5.36pm, the accused was suffering a severe hypoglycaemic episode, the result of which his actions of driving were non-voluntary.
“No hypothesis of guilt is open given how the Crown have made their case.“
He noted none of the victims’ names were aired in court during the committal, as he acknowledged how difficult the process would have been for their families, who attended court every day.
“This is a highly emotionally charged case,“ he said.
“This hearing is not about whether the accused is guilty or not.
“It does not permit space to talk about any impact on the victims or family, nor can it in any real way reflect the lives of the victims.“
Mr Bailin said those present in court, including family of Swale and the five victims, had carried themselves “with dignity and decorum that was … perhaps missing from the bar table“.
Swale, who was previously on bail, walked free from court.
