By Erin Pearson
A driver who was in the grip of a medical episode when he careered into diners outside a Daylesford hotel, killing five people, will not face trial.
After three days of evidence and submissions, Magistrate Guillaume Bailin on Thursday discharged the case against William Swale, finding there was insufficient evidence to put before a jury.
Outside Ballarat Magistrates’ Court, the families of the victims expressed their devastation at the magistrate’s decision.
Ashok Bhatia – who lost his son Vivek, 38, and grandson 11-year-old Vihaan – had been in court every day of the case. “There is no value on five lives,” he said.
Swale had faced five counts of culpable driving causing death, negligently causing serious injury and reckless conduct endangering life, after his car ploughed into patrons in Daylesford just after 6pm on November 5.
He sat in court surrounded by his family as the decision was read out, with the families of the victims seated in the row behind.
Earlier this week, the court heard Swale, a diabetic, lost control of his car while suffering a severe hypoglycaemic episode, which occurs when the body’s blood sugar levels become too low. Swale’s specialist doctor, Matthew Cohen, gave evidence that the 66-year-old’s blood glucose levels showed he was “virtually close to death” at the time of the crash.
In his ruling on Thursday, Bailin acknowledged at the outset that this was a highly emotionally charged case, and read out the names of each person injured or killed.
“This hearing is not about whether the accused is guilty or not, or even about if the accused could have done something different. It means the nature of this hearing proceeds in a way that appears distant from emotion, focusing on the legal test I have to decide,” Bailin said.
“I make clear, this dispassionate focus on those issues is in no way meant to reflect a disrespect or lack of acknowledgement of what those in court and online have been experiencing.
William Swale arriving at court on Monday.Credit: Justin McManus
“This ruling is designed to explain how the decision I have made has been reached so it is understood, rather than been accepted.”
The burden of proof, Bailin reminded those in court, was on the prosecution to prove there was sufficient evidence to take the case to trial.
Vivek and Vihaan Bhatia 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.
Vivek Bhatia (left) and his son, Vihaan Bhatia (in blue top), died at the scene, alongside friends Pratibha Sharma (in academic gown) and her partner, Jatin Kumar (right). Sharma’s daughter, Anvi, died later in hospital. Ruchi Bhatia (in yellow) and son Abeer (bottom left) were seriously injured.
After the hearing on Thursday, the families of the victims gathered on the steps of the courthouse.
“This man should realise that he had done this, so many people died, so many people were injured,” Ashok Bhatia said. “We are really upset with this decision.”
Vikas Sharma, brother of victim Pratibha Sharma, said no one was safe on our streets any more.
Security video footage from the day of the crash shows Swale’s BMW failing to make a right-hand turn and driving straight across a grass reserve outside the Royal Daylesford Hotel – at the bottom of Albert Street, Daylesford – where patrons were sitting at picnic tables.
Family members of the victims leaving court with Vikas Sharma, brother of victim Pratibha Sharma.Credit: Justin McManus
Swale had been a “well-managed” insulin-dependent type 1 diabetic since at least 1994, and there were conditions on his licence that required him to undergo medical assessments every two years.
He was also using a continuous blood-glucose monitoring device, attached to his arm, which sent updates of his levels to his mobile phone.
In his ruling on Thursday, Bailin said it was not about whether Swale was negligent in ignoring warning signs or if he should have been aware of the risks of driving that day.
He said the core issue was whether his driving was voluntary.
“A reasonable jury could not convict the accused on the evidence available,” Bailin said. “And as such, I discharge the accused of all charges.”
This week, the court heard there was no evidence that Swale applied the brakes to his BMW before, during or after impact.
Witness Martin Hinck recalled working at Winespeake Cellar and Deli when he heard the crash. He said he then found Swale semi-conscious in the driver’s seat of a white BMW, looking very unwell and possibly “wasted”.
Swale’s defence team said that in the 23 minutes before the crash, his BMW moved just 300 metres. They said CCTV showed Swale driving from a car park near the bowls club on Camp Street before stopping multiple times in the middle of the road as other cars overtook him.
Dermot Dann, KC, said his client had no memory of the fatal crash, and that his actions were consistent with those of an innocent man.
He argued the prosecution had failed to establish that Swale’s actions were conscious, deliberate and voluntary.
The prosecution had argued that in the lead-up to the fatal crash that 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.
Crown prosecutor Jeremy McWilliams said Swale knew or ought to have known the risks associated with going into a severe hypoglycaemic state, including being unable to control his car.
Accused man William Swale (right) and lawyer Martin Amad outside Ballarat Magistrates’ Court.Credit: Justin McManus
Outside court, Martin Amad – part of Swale’s legal team – said that while his client welcomed the decision, he remained deeply distressed about the deaths and injuries that occurred.
“He has asked me to again express his deepest sympathies to the families and friends of the deceased, to those injured, to their families and friends, and to the wider community, especially those in Daylesford,” Amad said.
“It would be inappropriate for us to say anything further.”
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