Justin Quill: There are no winners in the outcome of the Daylesford tragedy that killed five

Although William Swale won in Court this week following the Daylesford crash tragedy – there are absolutely no winners in this story.

The decision this week by Magistrate Guillaume Bailin to dismiss all charges against William Swale who killed five people when he drove his car into the beer garden of a Daylesford pub while apparently having a “severe hypoglycaemic attack” has understandably caused much debate, outrage and at times confusion in the community.

This is a tragic case. And although William Swale won in Court this week – there are absolutely no winners in this story.

Swale faced five counts of culpable driving causing death, two counts of negligently causing serious injury and seven counts of conduct endangering life.

He was diagnosed with type-1 diabetes in 1994 meaning he has required insulin to manage his blood sugar levels for about 30 years.

Swale faced five counts of culpable driving causing death, two counts of negligently causing serious injury and seven counts of conduct endangering life. Picture: Andrew Henshaw

The day of the crash Swale attended a cafe and tried to sit down but was turned away because there was no room. He returned to his car and began driving again at 5.36pm.

To prove the key charges, the prosecution had to prove that Swale consciously or unjustifiably disregarded a risk of death as a result of his driving or that he disregarded to a gross degree the standard of care required.

So, in lay terms, it really all comes down to how negligent or reckless Swale was.

The case seems to have turned on the way the prosecution put its case and in particular the timing of when they say his negligence or recklessness commenced.

The prosecution argued the negligence or recklessness began at 5.36pm when Swale returned to his car after being turned away at the cafe and hopped back behind the wheel.

That means, because of the way the prosecution put the case, they had to prove Swale’s actions from 5.36pm were negligent or reckless to the necessary degree. Of course for your actions to be either, they would have to be voluntary.

As the Magistrate put it, “this was about one issue – were the actions of the accused from 5.36pm voluntary”.

Flowers and stuffed toys were left at the pub by locals and tourists to pay tribute to the five lives tragically lost at The Royal Daylesford Hotel. Picture: Helena Powell

But the expert evidence from diabetes experts – including Swale’s treating doctor – was that by 5.36pm, Swale was already suffering a hypoglycaemic episode such that his actions were not voluntary.

His Honour therefore concluded that “the evidence is so weak that the prospects of conviction are minimal”.

That being decided, there was nothing left to do than to dismiss all charges and let Swale walk from Court a free man.

It must be said this is very different to a drink driving charge. It is not an answer for someone accused of drink driving to say, “I was too drunk to make a good decision when I hopped in my car”. Drink driving is a strict liability offence and the prosecution just have to prove a person was under the influence of alcohol (or a drug) to such an extent they were incapable of having proper control of the motor vehicle.

Whether you like it or not, the decision by his Honour was a brave one.

Too often judges, magistrates’ or prosecutors seems to want to leave tough decisions to others. It’s easy for prosecutors to charge someone and leave it to the Courts to decide (although I’m not critical of the decision to charge Swale here). It’s also easy for magistrates to commit someone to stand trial thereby leaving it to a jury to decide.

So, this decision was, at the very least, a brave one because it was always going to be criticised by many – particularly victims and victim’s families.

Daylesford pub car crash victims named: Pratibha Sharma, daughter Anvi, partner Jatin Chugh and dad Vivek Bhatia and his eldest son killed.

I feel deeply for the family. Perhaps the case could have been put differently to achieve a different result. Maybe Swale should have been accused of recklessness well before 5.36pm. It’s concerning that he found himself in his car by himself having to pull over at a cafe to get food to avoid a hypoglycaemic episode.

Of course we’re not at the point where people with diabetes shouldn’t be permitted to drive. There are about 1.3 million diabetics in Australia – or about 1 in 20 people. But they do need to take extra precautions – as I’m sure the vast majority (including Swale) do. In fact, the law in Victoria requires all type-1 diabetics to notify VicRoads of their condition. It may be that this case will lead to the imposition of further precautions to stop another tragedy like this.

Possible change to the law aside, I wouldn’t be surprised at all if the family of the deceased victims and some of the victims who survived bring civil proceedings against Swale. No doubt the way in which those civil cases would be framed will be informed by the failure of this prosecution.

This case has perhaps raised more questions than it has provided answers.

But one thing is for certain, the events that day in Daylesford were a tragedy and no legal result – criminal or civil – will ever make up for the devastation suffered by the victims and their families.

Justin Quill is a Partner at major law firm, Thomson Geer, which acts for the Herald Sun.

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