Driver ‘virtually close to death’ when he ploughed into beer garden: Court

Charges against a diabetic driver who killed five people when he ploughed into diners outside a Daylesford pub should be dropped, his lawyer says.

William Swale’s lawyer says charges against him should be dropped. Picture: Andrew Henshaw

Charges against a diabetic driver who killed five people when he ploughed into diners outside a Daylesford pub should be dropped, his lawyer has argued.

William Herbert Swale, 67, allegedly ignored several phone alerts that his blood-glucose levels were low in the hour before he drove through a beer garden at the Royal Daylesford Hotel just after 6pm on November 5 last year.

He faced the final day of a committal hearing at Ballarat Magistrates’ Court on Wednesday, where his lawyer, Dermot Dann KC, pushed for his charges – including five counts of culpable driving causing death – to be thrown out.

Dermot Dann KC (centre) says charges against William Swale (right) should be dropped. Picture: Nicki Connolly

While the case was tragic, Mr Dann said two medical experts had given evidence that Mr Swale, from Mount Macedon, was in a hypoglycaemic state and had “no comprehension” of what he was doing in the lead-up or at the time of the crash.

“The evidence is not of sufficient weight to support a conviction in respect of any of the charges,” he said.

“The prosecution is not in a position to establish beyond reasonable doubt, and never will be, that Mr Swale was performing a conscious and voluntary act when driving his motor vehicle at the time of the fatal accident.”

Vivek Bhatia and his eldest son, Vihaan, were killed in the tragedy. His wife and younger son were injured but survived.

Pratibha Sharma, her daughter Anvi, and partner Jatin Chugh were all killed.

Mr Dann said if the prosecution could not exclude that his client was in a severe hypoglycaemic state when he entered his vehicle, phone messages notifying him that his blood glucose levels were low were irrelevant.

In his submissions, Crown prosecutor Jeremy McWilliams said Mr Swale had been a hypoglycaemic aware diabetic since his diagnosis in 1994, meaning he was aware of the symptoms and risks associated with the condition.

“He is well aware ... of recognising his own personal suite of symptoms of falling blood glucose levels and what to do to remedy or rectify those circumstances,” he said.

“Here we have a driver that is very aware of what the consequence of driving with low blood sugar level is — it’s loss of control.”

While there were outstanding questions, Mr McWilliams said it should be up to a jury to determine them.

On Tuesday, Mr Swale’s diabetes physician for nearly 30 years, Matthew Cohen, described him as a “model patient” and said he had only ever missed one appointment.

The court heard a continuous blood monitoring device recorded Mr Swale’s blood-glucose levels dropping from 7.2 millimoles per litre — within the normal range — to 2.9 mmol in a 20-minute window about an hour before the crash.

After the second reading, Mr Swale allegedly received the first of several phone alerts at 5.18pm that his blood-glucose levels were low, which prosecutors allege he ignored.

Mr Swale went into Winespeake Cellar + Deli at 5.22pm — about 45 minutes before the crash — but left immediately because no tables were available.

The court heard he began driving again at 5.36pm and six minutes later his BMW SUV was recorded on CCTV sitting motionless in the middle of the road outside Daylesford bowls club, forcing other motorists to go around.

It took him a further 23 minutes to travel about 300 metres before he failed to negotiate a turn and ploughed into the beer garden, the court was told.

When he was assessed by paramedics after the crash, a blood-glucose reading of 1.1 mmol was taken and Mr Swale was “virtually close to death” according to Dr Cohen.

Mr Swale is charged with five counts of culpable driving causing death, two counts of negligently causing serious injury, and seven counts of reckless conduct endangering life.

Melbourne woman Pratibha Sharma, 44, nine-year-old daughter Anvi, and partner Jatin Kumar, 30, along with Vivek Bhatia, 38, and son Vihaan, 11, were killed in the tragedy.

Magistrate Guillaume Bailin is expected to commit Mr Swale to stand trial or dismiss the charges on Thursday.