No direct indictment for pub crash driver

Victorian prosecutors have ruled out directly indicting William Swale after charges over a horror fatal pub crash were thrown out of court.

The 66-year-old was charged with driving offences after his BMW SUV ploughed through a beer garden outside The Royal Daylesford Hotel on November 5 last year.

Five people were killed in the crash and six others were injured.

Mr Swale successfully fought to have the charges dismissed during a committal hearing in the Ballarat Magistrates’ Court in September, where a magistrate ruled the evidence was “so weak” that no reasonable jury could convict.

The court was told Mr Swale, a type-1 diabetic for three decades, was found in a state of severe hypoglycaemia — dangerously low blood sugar levels — after the crash.

Called to give evidence, two diabetes experts, professor John Carter and Dr Matthew Cohen confirmed at the time of the crash Mr Swale would have had “no comprehension” of what he was doing.

Dismissing all charges, Magistrate Guillaume Bailin said the prosecution had been unable to prove when Mr Swale returned to his car at 5.46pm he was acting in a conscious and voluntary manner.

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

After the decision, Victoria’s Office of Public Prosecutions said they would review the case and consider whether it should nonetheless proceed to trial.

Under the criminal procedure act, prosecutors have powers to file charges directly in a superior court if a magistrate dismisses a case in what’s known as a direct indictment.

On Friday, the Office of Public Prosecutions published a statement announcing that a direct indictment will not be filed.

“The experts’ evidence on this point effectively deprived the Crown case of reasonable prospects of success,” the statement read.

“The implication of this evidence was that it was possible Mr Swale was so impaired throughout the relevant period as to be incapable of acting consciously.”

The Office Of Public Prosecutions said the decision had been explained to the families.
“We understand that this is not the outcome they were hoping for and acknowledge that they have been profoundly affected by this event,” the statement said.

“We extend our sympathies to all who have been impacted by this terrible incident.”

Over a three-day hearing in September, Mr Bailin was told Mr Swale had attended a two-day shooting competition in Clunes and was on his way home to Mount Macedon when the crash occurred.

He was captured on CCTV stopping in Daylesford where he entered the Winespeake cellar and deli about 5.20pm.

His SUV was captured driving slowly outside the Daylesford Bowls Club at 5.42pm before the fatal crash at 6.07pm — just 300m away.

Mr Balin found it was reasonably possible Mr Swale was already suffering a severe hypoglycaemic event when he re-entered the car, “the result of which means his actions in driving from 5.36pm onwards were not voluntary,” he said.

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.

Outside of court, defence lawyer Martin Amad told media his client welcomed the decision but remains deeply distressed about the accident.

“He has asked me, again, to express his deepest sympathy to the family and friends of the deceased, to those injured, to their family and friends, and to the wider community, especially those in Daylesford,” he said.