Twist after fatal crash driver’s charges dropped

Victorian prosecutors will “carefully review” a magistrate’s decision to dismiss all charges against a diabetic driver accused of causing a fatal crash.

William Herbert Swale, 66, successfully fought to have the case against him tossed out of court this week, arguing the prosecution could not prove his decision to get behind the wheel was made consciously and voluntarily.

On Thursday, Magistrate Guillaume Bailin agreed, ruling the evidence was “so weak” that no reasonable jury could convict him.

In a statement, Victoria’s Office of Public Prosecutions said Mr Bailin’s judgment would be reviewed and next options considered.

“The Office of Public Prosecutions acknowledges the decision of Magistrate Guillaume Bailin not to commit Mr William Swale for trial over the tragic crash in Daylesford last year,” a spokeswoman said.

“As is the usual course, His Honour’s decision will be carefully reviewed in accordance with prosecution guidelines with a view to considering whether the matter should nonetheless proceed to trial.

“Our Office reiterates its deepest sympathies to the victims injured in this tragic event, and all the families of those who lost their lives.”

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.

This week, the Ballarat Magistrates’ Court was told Mr Swale, who was diagnosed with type-1 diabetes three decades ago, was found in a state of severe hypoglycaemia immediately after his BMW SUV crashed through a beer garden outside The Royal Daylesford Hotel on November 5 last year.

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

Prosecutors had alleged Mr Swale was aware of his low blood sugar and the risk it posed, but nevertheless got behind the wheel about 40 minutes before the crash.

Two experts gave evidence that due to Mr Swale’s condition he had “no comprehension” of what he was doing immediately prior to the crash.

They said it was likely Mr Swale was already in a state of impaired consciousness when he returned to the car at 5.36pm.

Defence barrister Dermot Dann KC argued the crash was squarely the result of a medical episode and the prosecution had failed to prove his client was aware of what he was doing.

The following day, Mr Bailin agreed, saying it was “reasonably possible” Mr Swale was already experiencing a severe hypoglycaemic event when he got behind the wheel, meaning his actions were likely not voluntary.

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

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

Outside of court, defence lawyer Martin Amad told media his client welcomes 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.