No jury will convict a diabetic driver as he was rendered unconscious by declining blood sugar levels when he drove into and killed five people outside a pub, his lawyers have told a court.
William Swale, 66, is fighting 14 charges, including five counts of culpable driving causing death, after passing out behind the wheel of his BMW SUV in Daylesford on November 5, 2023.
The type-1 diabetic claims he suffered a severe hypoglycaemic episode when he mounted a kerb and ploughed into two families outside the Royal Daylesford Hotel about 6.07pm.
Pratibha Sharma, 44, her daughter Anvi, 9, and partner Jatin Kumar, 30, were killed along with their friend Vivek Bhatia, 38, and his son Vihaan, 11.
Their families have attended every day of a committal hearing at Ballarat Magistrates Court this week.
Diabetes experts, police, paramedics and a witness who found Swale sitting behind the wheel of his vehicle within one minute of the crash have all given evidence.
This included Swale's long-term diabetes specialist Matthew Cohen, who said Swale had no memory of the crash and that his hypoglycaemic state was so severe he was "close to death" when the crash occurred.
Swale's defence on Wednesday argued all charges against him should be dismissed as there's not sufficient evidence to prove he was performing a conscious act when he caused the collision.
"The prosecution are not and never will be able to establish Mr Swale was performing a conscious and voluntary act at the time of driving," his barrister Dermot Dann KC told the court.
"This man was in a severe hypoglycaemic state, no comprehension of what he was doing.
"The evidence is not of sufficient weight to support a conviction on any of the charges."
However prosecutor Jeremy McWilliams said Swale was a long-term diabetic who should have been aware of the risks of his blood sugar levels declining.
"Mr Swale has been a hypoglycaemic-aware diabetic since 1994," he told the court.
"He’s well aware of the risks of having low blood sugar levels ... and what to do to remedy or rectify those circumstances."
He said Swale had taken a dose of insulin as he expected to eat at a barbecue in Clunes before driving into the Daylesford area.
However Mr McWilliams said when Swale got to the event it had finished so there was no food and subsequently his blood sugar levels would have begun to drop.
He alleged Swale would have been further notified his blood sugar levels were dropping in the hour before the crash, as his device sent out alerts to his phone.
The prosecutor said there was enough evidence to send Swale to a jury trial and asked for the magistrate to commit him.
Magistrate Guillaume Bailin adjourned the case to Thursday afternoon, when he will rule on whether Swale will stand trial.
