Devastated family of father and son who were among five killed in Daylesford pub garden tragedy refuse to give up fight for justice – as diabetic BMW driver who ploughed into them walks free

The devastated families of a father and son who were among five people killed when a diabetic car drove into a beer garden plan to file a lawsuit after charges against him were dismissed.

Property magnate William Swale, 66, faced a three-day hearing in Ballarat District Court this week, where he fought 14 charges, including five counts of reckless driving causing death, in connection with the fatal crash in November 2023.

The Type 1 diabetic, who was diagnosed in 1994, claimed he suffered a “severe hypoglycemic attack” when he crashed his white BMW SUV into guests outside the Royal Daylesford Hotel.

Swale drove over a kerb, killing five people sitting in the pub’s beer garden: Pratibha Sharma, 44, her daughter Anvi, 9, and partner Jatin Kumar, 30, and their friend Vivek Bhatia, 38, and his son Vihaan, 11.

Diabetes experts, police, paramedics and a witness who saw Swale driving “drunk” within a minute of the crash all gave evidence.

Judge Guillaume Bailin ruled Thursday that the indictment was flawed and that there was not enough evidence to warrant a conviction on any of the 14 charges.

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

“The acquittal of this driver has destroyed us. We believe that … justice has not been done,” he said.

“Our family calls for accountability. We demand justice for the lives lost, for the broken families, and for the pain that will haunt us forever.”

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

“I have to say, there is zero justice system. Zero. Just zero,” he said.

Bhatia’s “very upset” father, Ashok, added: “Five lives are worth nothing.”

Ms Sharma’s brother Vikas told A Current Affair that the court’s decision left them feeling like their loved ones had been murdered again.

“They killed them again today,” he said.

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

Swale declined to comment outside the courtroom but remained silent while his lawyer Martin Amad said the driver was “deeply shocked” by what had happened that day.

“He has asked me again to express his deepest condolences to the family and friends of the deceased, to the injured, to their families and friends and to the community at large, particularly the people of Daylesford,” Mr Amad said.

Swale, a New Zealand-born pensioner, sat nervously with his head bowed and arms crossed during the hearing. He expressed relief when all charges were dropped.

In delivering his verdict, the magistrate was highly critical of the way the Public Prosecution Service had presented the case against Swale.

“The evidence is so weak that the chances of a conviction are minimal,” the magistrate told the court.

Mr Bailin said his verdict was not about whether Mr Swale was guilty or whether he could have done anything differently to prevent the tragedy, but about the narrow legal issue of whether prosecutors could prove his actions were deliberate and voluntary.

“This is a case where there is a hypothesis that is consistent with innocence, but it fundamentally weakens the case,” he continued.

‘It is reasonably possible that the suspect had severe hypoglycemia. This means that his actions while driving from 5:36 p.m. were not voluntary.

“Therefore, I acquit the suspect of all charges.”

His lawyer, Dermot Dann KC, asked the court to dismiss the entire case against Swale, on the grounds that his client was unconscious at the time of the collision due to a ‘severe hypoglycaemic attack’.

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

“He is very aware of the risks associated with low blood sugar… of recognizing his own personal set of symptoms of falling blood sugar and what he needs to do to remedy or correct those conditions,” Mr McWilliams said.

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

Witnesses at the scene immediately after the shooting described Mr Swale as unresponsive, “hooked up” and passing out in and out while in the car, the court was told.

This came after it emerged that Swale was a wealthy artist and property magnate who once complained to the local authority about road safety.

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

In November 2023, they sold a home called Tower House in Kyneton for an estimated price of $3 million and a few years earlier they sold another property worth over $3 million called Grayton House in picturesque Woodend – both north-west of Melbourne.

In 2017, Swale was a guest on Channel 7 reality show A Moveable Feast, where he showed off the Grayton estate to radio presenter Ross Stevenson and co-presenter Kate Stevenson.

In an article published in March in real estate magazine Domain, Swale’s wife boasted that the multi-million dollar properties they lived in were always temporary.

“While I love living here, the project is finished and I am a project-driven person,” she told the publication.

Swale was also a member of the Cobaw Sporting Club, a shooting club in the Macedon Ranges where hunters engage in hunting activities similar to those of British gentlemen.

On social media, members can be seen arriving at the hunt in limousines and posing with dead birds, dressed in the finest British hunting gear.