The devastated father and son family who were among five people killed in the Daylesford pub garden tragedy are refusing to give up their fight for justice as the diabetic BMW driver who hit them walks free

The devastated relatives of a father and son who were among five people killed when a diabetic driver crashed into a pub’s beer garden are planning to file a lawsuit after charges against them were dropped.

Property tycoon William Swale, 66, faced a three-day preliminary hearing this week in Ballarat Magistrates Court as he contested 14 charges, including five counts of culpable driving causing death, over the fatal crash in November 2023.

The type 1 diabetic, who was diagnosed in 1994, claimed he suffered a “severe hypoglycaemic attack” while driving his white BMW SUV when he crashed into customers outside the Royal Daylesford Hotel.

Swale stepped onto the pavement and killed five people sitting in the pub’s beer garden: Pratibha Sharma, 44, her daughter Anvi, 9, and her partner Jatin Kumar, 30, and their friend Vivek Bhatia, 38, and his son Vihaan, 11.

Diabetes experts, police, paramedics and a witness who found Swale sitting behind the wheel looking “disorganised” a minute after the crash all gave evidence.

Magistrate Guillaume Bailin concluded on Thursday that the prosecution’s case was flawed and there was insufficient evidence to support a conviction on any of the 14 charges.

Mr Bhatia’s uncle, Mukesh Bhatia, told the Herald of the Sun that his family was considering their legal options after suffering an “unimaginable loss.”

“We are devastated by the acquittal of this driver. We feel that (…) justice has not been done,” he said.

“Our family is demanding accountability. We demand justice for the lives lost, for the families torn apart, and for the pain that will haunt us forever.”

Outside court, Bhatia’s brother-in-law Rupinder Singh said the judicial system had failed him.

“I have to say that there is no system of justice. No system. Simply no system,” he said.

Bhatia’s father Ashok, “really upset”, added: “Five lives have no value.”

Ms Sharma’s heartbroken brother Vikas told A Current Affair that the court’s decision made them feel as if their loved ones had been killed all over again.

“They killed them again today,” he said.

‘On the first day, November 5, the five people were killed by the driver, and today they were killed again by this Australian justice system.’

Swale made no comment outside court but remained silent as his lawyer, Martin Amad, said the driver was “deeply distressed” by what had happened that day.

“He has asked me once again to express his deepest condolences to the family and friends of those who died, to those injured, their families and friends, and to the wider community, especially those in Daylesford,” Amad said.

Sitting nervously with his head bowed and arms crossed throughout the hearing, Swale, a New Zealand-born pensioner, reacted with relief when all charges were dropped.

In delivering his decision, the judge sharply criticised the way the Crown had presented its case against Swale.

“The evidence is so weak that the prospects of conviction are minimal,” the judge told the court.

Mr Bailin said his judgment was not about whether Swale was guilty or whether he could have done something differently to prevent the tragedy, but rather the narrow legal question of whether prosecutors could prove his actions were conscious and voluntary.

“This is a case in which there is a hypothesis consistent with innocence that fundamentally weakens the case,” he continued.

‘It is reasonably possible that the defendant was suffering from a severe hypoglycaemic episode, the result of which means that his driving actions from 5.36pm onwards were not voluntary.

‘I therefore acquit the accused of all charges.’

His lawyer, Dermot Dann KC, asked the court to throw out the entire case against Swale because his client was unconscious at the time of the collision having suffered a “severe hypoglycaemic attack”.

But prosecutor Jeremy McWilliams said Swale was a long-term diabetic who should have been aware of the risks of his blood sugar levels dropping when he got into the car to drive.

“He’s very aware of the risks of having low blood sugar levels… of recognizing his own set of symptoms of falling blood glucose levels and what to do to remedy or rectify those circumstances,” McWilliams said.

‘Here we have a driver who is very aware of what the consequences of driving in a low blood sugar environment are: loss of control.’

Witnesses who were at the scene immediately after the crash described Swale as unresponsive, appearing “fainted” and drifting in and out of consciousness as he sat in the car, the court was told.

This comes after it was revealed Swale was a wealthy artist and property tycoon who once complained to his local council about road safety.

The 66-year-old and his wife, Thea, have been buying and selling multi-million-dollar properties for years.

In November 2023 they sold a home called Tower House in Kyneton for an estimated $3 million, and just a few years earlier they offloaded another $3 million-plus property called Grayton House in picturesque Woodend, both northwest of Melbourne.

Swale appeared on Channel 7 reality show A Moveable Feast in 2017, where he showed the Grayton estate to radio presenter Ross Stevenson and co-presenter Kate Stevenson.

In an article that appeared in property publication Domain in March, Swale’s wife boasted that the multi-million pound properties they lived in were always temporary.

“As much as I love living here, the project is finished and I’m a project-driven person,” she told the publication.

Swale has also been a member of the Cobaw Sporting Club, a shooting club in the Macedon Ranges where hunters embark on escapades similar to those of British lords.

Social media images show members arriving at hunts in limousines and posing with dead birds while dressed in the finest British hunting gear.