The driver who killed five people and injured nine others outside the Royal Daylesford Hotel on November 5 last year will not face court after a magistrate dropped all charges after a committal hearing this week.
The driver, William Herbert Swale, 67, of Mount Macedon, drove through an outside dining are in Burke Square beside the Royal.
No locals were killed or injured but the accident has taken a grave toll on first responders and local residents who cared for the dead and injured in the aftermath of the accident. The court proceedings this week have been a raw reminder of the events that traumatised locals and visitors to the town.
Friends and family of the injured and deceased were understandably distressed by the court’s decision.
Mr Swale, a diabetic, had been 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 evidence, the court heard that Mr Swale was a Type 1 diabetic and was known to have periodic hypoglycaemic events. He reportedly had repeated warnings from his blood glucose monitor in the time immediately preceding the accident.
However, two medical experts, Professor John Carter and Dr Matthew Cohen, who gave evidence during the hearing testified that it was possible that Mr Swale was having a hypoglycaemic episode while driving and could not be held responsible because of the medical episode.
Magistrate Guillaume Bailin discharged the 67-year-old on all charges saying that there was not sufficient evidence to support a conviction. In Australia, people who commit what are otherwise criminal actions, or might be criminal actions, have to do so consciously, deliberately and voluntarily. The issue of the “voluntariness” of Mr Swale getting behind the wheel of his vehicle was key element in the decision. Mr Bailin said his judgment was about the narrow legal issue of whether it could be proved that his actions were voluntary, not about whether he could or should have done something different.
Diabetics drivers who are insulin dependent are required by law to notify VicRoads of their condition. They are also responsible for ensuring that their blood glucose levels are safe before making a decision to drive. This week’s ruling highlights that that they are only responsible for that decision if they are capable of making the decision.
Mr Swale’s lawyer Martin Amad said outside court that his client remained deeply distressed about the deaths and injuries that occurred last November and expressed his deepest sympathy to the families and friends of the injured and deceased and to the wider community, especially those in Daylesford.
An article on the ABC website suggests that Victoria’s Director of Public Prosecutions (DPP) has the power to prosecute Mr Swale again using a different legal avenue, called a direct indictment. A DPP policy document indicates that the department could pursue a direct indictment if it believed there was a reasonable prospect of a conviction, the case was in the public interest, and there had not been “an unreasonable” delay after a magistrate’s decision to discharge a case.
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