William Swale: Diabetic driver accused of Daylesford pub crash asks for case to be thrown out of court

Lawyers acting for a diabetic man accused of killing five in a horror beer garden crash have called for the charges to be thrown out of court. William Swale, 66, was charged by police a month after his white BMW SUV allegedly ploughed into diners outside the The Royal Daylesford Hotel in Victoria’s spa country on November 5 last year. The New Zealand-born retiree has been facing a committal hearing in the Ballarat Magistrates’ Court this week to determine if the case should be sent for a trial by jury. On Wednesday, his barrister Dermot Dann KC argued the allegations were fundamentally flawed and the prosecution could “never” prove Mr Swale’s decision to get behind the wheel was a conscious and voluntary act. The court was told Mr Swale was found in a severe hypoglycaemic state, drifting in and out of consciousness and unable to speak immediately following the 6.07pm crash. He had been returning to his Mount Macedon home from a multi-day national clay shooting competition in Clunes – about 30 minutes west of Daylesford. He arrived in Daylesford about 5.15pm and allegedly received an alert on his phone from a blood glucose monitor on his arm, indicating his blood sugar levels had fallen dramatically. A further eight alerts were allegedly sent to his phone before the horror crash occurred at 6.07pm. CCTV captured him entering the Winespeake cellar and deli about 5.22pm, but he was turned away because the venue was full. According to the prosecution case, Mr Swale returned to his car and began driving again at 5.36pm. It’s alleged his decision to get back behind the wheel represented “gross negligence”, with Mr Swale, who had been diagnosed with diabetes almost 30 years earlier, aware of what the consequences of driving with low blood sugar could be. But Mr Dann argued the prosecution had been unable to prove Mr Swale was acting in a conscious and voluntary manner when he got behind the wheel or that he was aware of his low blood sugar. He pointed to evidence from two diabetes experts, Professor John Carter and Dr Matthew Cohen, that it was likely Mr Swale was already in an altered consciousness state. William Swale is facing a key court hearing to determine if he should face trial after allegedly crashing into a beer garden at the Daylesford pub, killing five.Dr Cohen, who has been treating Mr Swale since 1994, went further, saying he believed Mr Swale was operating automatically and was not conscious. “If the prosecution can’t exclude at 5.36pm he’s conscious and voluntary … The prosecution case is left with nothing, nought, zero on this issue,” Mr Dann said. “This case and the evidence is stuff of chaff and a discharge should occur.” Prosecutor Jeremy McWilliams told the court there was “no doubt” there were lingering questions in the case, but he argued they should be determined by a jury. He said the expert evidence was not as clear-cut as Mr Dann would have the court believe, arguing there were clear differences of opinions on Mr Swale’s state about the time he entered Winespeake cellar and deli. “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 said. “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. “The timeline is of significance insofar as it informs gross negligence at the time of driving.” First responders found the Mount Macedon man unable to communicate at the scene, with witnesses describing him as sweating profusely, drifting in and out of consciousness and appearing “wasted”. The court was told Mr Swale’s blood sugar level was 7.2 mmol per litre – within the normal range – about 4pm but had fallen to 2.9 by 5.17pm. It was less than 1.1 — below the lowest possible reading — when tested a half-hour after the crash. He was first diagnosed with type-1 diabetes in 1994 and had been a “model patient” in managing the condition, his endocrinologist Matthew Cohen told the court on Tuesday. “This is an unusually rapid decline in blood glucose levels,” he said. Road crash reconstruction expert Janelle Hardiman told the court there was no evidence of braking or steering input before or after the crash. She agreed with a suggestion by Mr Dann that this could reflect the driver was in a “deeply impaired state”. Five people were killed and others injured when Mr Swale’s vehicle ploughed into the front beer garden of the Royal Daylesford Hotel at 6.07pm. 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. 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. Magistrate Guillaume Bailin will hand down a decision on Thursday afternoon.