By Erin Pearson
A magistrate will determine whether a diabetic driver will face trial for the deaths of five people as the defence calls for the case to be dismissed because the 66-year-old was suffering from a medical episode when the crash occurred.
William Swale faced Ballarat Magistrates’ Court for the third day on Wednesday flanked by his family and seated metres from the relatives of those who were killed while dining outside the Royal Daylesford Hotel, in regional Victoria, on November 5.
William Swale outside court.Credit: Justin McManus.
In calling for the case to be discharged, defence barrister Dermot Dann, KC, said the prosecution had failed to establish that his client’s actions were conscious, deliberate and voluntary when he careered down a hill in Daylesford and into a crowd of pub patrons.
Dann said there was insufficient evidence to support a conviction against Swale for all charges, including five counts of culpable driving and seven of reckless conduct endangering life. Two expert witnesses earlier told the court that at the time of the crash, 6.07pm, the 66-year-old was in the grip of a severe hypoglycaemic episode.
“Not only do you have the expert witness evidence in this case ... you have evidence of so many witnesses who observed Mr Swale in immediate aftermath of the fatal accident where he is lapsing in and out of consciousness, his car is sitting in the middle of the road, motionless, not moving,” Dann said.
“This is consistent with someone who has no comprehension of what they’re doing – consistent with innocence.”
The prosecution alleges that in the lead-up to the fatal crash, Swale ignored a string of low blood-glucose level alerts from a monitoring device on his arm linked to his mobile phone, and continued to drive.
They say he left a shooting competition in Clunes, a nearby town, without eating lunch, and then drove to Daylesford, where he attempted to get a table at Winespeake Cellar + Deli at 5.21pm. When he learnt the restaurant was full, CCTV showed Swale return to his BMW and drive away.
The prosecution alleges Swale, who had been a diabetic for nearly 30 years, knew or ought to have known the risks associated with going into a severe hypoglycaemic state, including being unable to control his car.
Crown prosecutor Jeremy McWilliams said Swale was well aware of the risks of having low blood sugar levels, what the warning signs were and what to do to remedy low levels.
“Here we have a driver who is very aware of what the consequences are of driving in an environment of low blood sugar is – it’s loss of control,” McWilliams said.
Patrons were at wooden picnic tables on a grass reserve outside the Royal Daylesford Hotel – at the bottom of Albert Street – when CCTV footage showed Swale’s BMW failing to make a right-hand turn and driving straight across the reserve, hitting numerous patrons, killing five and seriously injuring others.
Vihaan Bhatia, 11, and his father, Vivek Bhatia, 38, died at the scene, alongside family friends Pratibha Sharma, 44, and Jatin Kumar, 30. Sharma’s nine-year-old daughter, Anvi, was taken to hospital, where she later died. Vihaan’s mother, Ruchi Bhatia, and his brother, Abeer, were seriously injured.
Three other people, a 43-year-old woman from Kyneton, a 38-year-old man from Cockatoo and an 11-month-old boy, were also injured.
Magistrate Guillaume Bailin is expected to give his decision on Thursday. Swale remains on bail.
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