‘Really upset’: Family of victims of fatal pub crash voice outrage after diabetic driver William Swale has charges dismissed

Family members of one of the five people killed in a horrific pub crash have voiced their outrage after charges against the diabetic driver who was behind the wheel at the time were dismissed.

William Herbert Swale was charged with 14 offences last year after his white BMW SUV careened through a roundabout and into patrons outside The Royal Daylesford Hotel, northwest of Melbourne, in the evening of November 5.

The 66-year-old this week faced a committal hearing in the Ballarat Magistrates’ Court, where magistrate Guillaume Bailin was tasked to decide if the case should head to trial.

Mr Bailin concluded the expert evidence could not rule out that Mr Swale had “no comprehension of what he was doing” when he got behind the wheel of his car.

Sitting nervously with his head bowed and arms crossed throughout the hearing, The New Zealand-born retiree reacted with relief as all charges were thrown out.

Mr Balin acknowledged at the outset that the case was “highly emotionally charged” with members of Mr Swale’s family and those of the five people that died present in court.

He said his judgment was not about whether Mr Swale was guilty or if he could have done something differently to avoid the tragedy, but on the narrow legal issue of whether prosecutors could prove his actions were conscious and voluntary.

“This is a case where there is a hypothesis consistent with innocence that so fundamentally weakens the case,” he said.

“It is reasonably possible the accused was suffering a severe hypoglycemic event; the result of which means his actions in driving from 5.36pm onwards were not voluntary.

“As such I discharge the accused on all charges.”

Melbourne woman Pratibha Sharma, 44, her nine-year-old daughter Anvi, and Ms Sharma’s husband Jatin Kumar, 30, died alongside their friend Vevek Bhati and his 11-year-old son Vihann.

Following the verdict, a relative of Mr Bhati voiced his fury at the charges being dropped, saying the family was “really upset”.

Mr Swale’s lawyer, Martin Amad, said his client remains “deeply distressed” about the deaths and injuries that occurred, while Mr Swale remained silent.

Witnesses on the scene in the immediate aftermath described Mr Swale as non-responsive, appearing “wasted” and drifting in and out of consciousness as he just sat in the car, the court was told.

The court was told Mr Swale had left a national clay shooting competition in Clunes about 4.50pm, driving half-an-hour west to Daylesford on the day in question.

He was captured on CCTV entering a deli at 5.22pm but was turned away when informed they didn’t have any tables free.

About 5.36pm Mr Swale returned to his vehicle and was later seen outside the Daylesford Bowls Club stopped in the middle of the road for several minutes.

Two experts, Dr Matthew Cohen and professor John Carter gave evidence this week it was likely Mr Swale was already in an impaired consciousness state when he re-entered the vehicle.

Professor Carter told the court he could not rule out Mr Swale was in a severe hypoglycemic state and “it would make sense” if he was, while Dr Cohen went further saying he believed Mr Swale was acting automatically and without conscious effort from the time he entered the deli.

Prosecutors, led by Jeremy McWilliams, had alleged Mr Swale, who was diagnosed with type-1 diabetes nearly 30 years earlier, knew or ought to have known the risks when he re-entered his car.

“He’s well aware of the risks of having low blood sugar levels … of recognising his own personal suite of symptoms for falling blood glucose levels and what to do to remedy or rectify those circumstances,” Mr McWilliams said.

“Here we have a driver that is very aware of what the consequences of driving in an environment of low blood sugar is – it’s loss of control.”

He argued that while there were issues with the prosecution case, the issue of Mr Swale’s state should have been left for a jury to determine.

Both the prosecution and defence agreed he was in a severe hypoglycemic state when his car ploughed into the front beer garden at 6.07pm, killing five and injuring six others.

Mr 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 in December.