New Zealand-born 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 faced a committal hearing in the Ballarat Magistrates’ Court this week, where Magistrate Guillaume Bailin will decide if the case is sent to the County Court for a jury trial.
On Tuesday, defence barrister Dermot Dann KC called for the charges against his client to be dismissed, arguing there was insufficient evidence to support a conviction.
Dann said it was common ground between the parties that Swale had suffered a severe hypoglycaemic event – where his blood sugar fell below levels required for normal functioning.
He told the court two medical experts had given evidence Swale was likely not driving consciously, deliberately and voluntarily when the crash occurred.
Witnesses on the scene in the immediate aftermath described Swale as non-responsive, appearing “wasted” and drifting in and out of consciousness as he just sat in the car.
“This is consistent with someone who has no comprehension of what they’re doing, consistent with innocence,” Dann argued.
Dann said the prosecution could not exclude that his client was in a severe hypoglycaemic state when he entered his vehicle, nor that he received or understood low blood sugar alerts on his phone.
The court was told 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.
William 'Bill' Swales is a New Zealander living in Mt Macedon, Victoria, who is charged with five counts of culpable driving causing death after crashing into a pub in Daylesford. Photo / Seven News
About 5.36pm Swale allegedly returned to his vehicle and was later seen outside the Daylesford Bowls Club stopped in the middle of the road for several minutes.
Prosecutors, led by Jeremy McWilliams, allege 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,” 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 the medical evidence was not as clear-cut as Dann had claimed.
Five people were killed and seven others were injured when the car ploughed into the front beer garden at 6.07pm.
Melbourne woman Pratibha Sharma, 44, her 9-year-old daughter Anvi, and Sharma’s husband Jatin Kumar, 30, died, alongside their friend Vevek Bhati and his 11-year-old son Vihann.
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.
Magistrate Guillaume Bailin will hand down a decision on whether Swale should stand trial or have the charges dismissed on Thursday afternoon.
