A magistrate has opted to dismiss all charges against the driver of a car that crashed into the outdoor area of a Daylesford pub last year, with families and survivors challenging the ‘injustice’.
According to police and witnesses, around 6pm on 5 November a white BMW X5 mounted a kerb and drove across a grassed area outside the Royal Hotel full of dining patrons, where it “collided with those tables and those people.”
The driver was identified as 67-year-old William Herbert Swale of Mount Macedon. The Hotel is a popular hub of the tourism-based town of Daylesford, about 100 kilometres north-west of Melbourne.
It was a sunny Sunday and dozens of people were outside. Tragically, five died in the crash.
Paramedics found Swale unresponsive and sweating, unable to communicate and said to be displaying symptoms consistent with someone having a hypoglycaemic episode.
There was uncertainty regarding the culpability, but the following month Swale was charged with five counts of culpable driving causing death, two counts of negligently causing serious injury, and seven counts of reckless conduct endangering life.
This week he walked free from a committal hearing at Ballarat Magistrates Court, after all charges were dropped.
The court heard that prior to the accident he had been at a national shooting competition in Clunes, where a witness reported he had seemed “vague” about the proceedings.
Around 5:20 CCTV captured him casually entering Winespeake Cellar and Deli, where he was turned away due to no table being available, and seen exiting snacking on something.
The management of Swale’s diabetes proved central to the proceedings.
A digital forensics expert testified for the defence that Swale’s glucose monitor, worn on his arm, was not always connected with his phone, and not sending data. It was also offered that during the roughly 24 minutes he was in Daylesford his phone was in his pocket and it was unestablished if he received notifications from his glucose monitor.
The defence argued, successfully, that Swale was suffering a hypoglycaemia episode due to diabetes prior to and when the crash took place, and as such he did not have a case to answer.
Evidence provided by medical experts, Professor John Carter and Dr Matthew Cohen, suggested the man did not voluntarily get behind the wheel.
Cohen has been Swale’s treating physician for his diabetes for decades, and previously wrote to VicRoads in support of him being allowed to retain a driver’s licence. Swale, a Type 1 diabetic since the 90s, was known to have “hypos” before meals, but Cohen described the management of the condition as “well-controlled”.
Magistrate Guillaume Bailin questioned what evidence demonstrated the issue of voluntariness, which he noted was the “key element” to the charges, and without which all charges were “so weak that the prospects of conviction are minimal”.
Conceding that Swale’s decision to knowingly get behind the wheel while he was having an attack was central to the Crown’s case, prosecutor Jeremy McWiliam argued that the defendant was well aware of the risks and knew his blood sugar dropped before meals, accusing him of ignoring the notifications.
McWiliam also entered that there is conflicting evidence about states of hypoglycaemia, and suggested Dr Cohen might have motive to help his patient, but maintained that attempting to drive was an act that was “conscious, voluntary and deliberate”.
Magistrate Bailin remained unconvinced that accountability could be sufficiently proven.
“I am of the opinion the evidence is not of sufficient weight to support a conviction for any indictable offence.”
The outcome hinged on the prosecution being unable to exclude the possibility that the defendant was having a severe ‘hypoglycaemic episode’ when he got into the vehicle, in a condition in which he was unable to drive safely and maintain control.
The verdict may call into question whether anyone suffering from such a condition that renders them incapable of sound judgement might be allowed a licence.
Outside the court, Swale’s lawyer Martin Amad stated his client’s sorrow over the incident.
“He has asked me again to express his deepest sympathy to the families and friends of the deceased, to those injured, their family and friends, and to the wider community, especially those in Daylesford.”
Swale is reportedly now seeking legal costs from Victoria Police.
Father and grandfather of crash victims Vivek and Vihaan Bhatia, Ashok Bhatia, was grief-stricken over the verdict.
“This is not justice,” he said.
