The man charged over a horror beer garden crash that killed five people has been granted bail after his son stumped up a $250,000 surety.
More than a month after the incident, William Swale, 66, was arrested and charged on Monday after voluntarily attending a police station.
The New Zealand-born retiree is facing five counts of culpable driving causing death, two counts of negligently causing injury and seven counts of recklessly placing a person in danger of death.
Police allege he “ignored” up to nine alerts on his phone that his blood sugar was low, while his lawyers contend the incident is purely a “medical episode”.
On Friday, Mr Swale returned before the Melbourne Magistrates’ Court as magistrate Brett Sonnet was expected to hand down his judgment on bail in a short 30-minute hearing following an application on Monday.
But prominent barrister Dermot Dann KC stepped in to continue arguing that Mr Swale should be freed.
“There’s never been a prosecution case like this,” he said.
“This was just a tragic accident, as my client already has conveyed his sympathies through his solicitor, and we do so again.”
A debate broke out between Mr Dann and Mr Sonnet on case law for bail applications and whether Mr Swale had reached the “compelling” test to grant bail.
Mr Sonnet expressed disappointment that new arguments were being made on Friday following Monday’s lengthy hearing.
“The court has to be very mindful … that the relevant threshold is met,” he said.
“I don’t speak for other magistrates, but I don’t certainly rubber stamp bail for people charged with causing the death of another person.”
On Monday, the court was told a family of three visiting from Melbourne, Pratibha Sharma, her nine-year-old daughter Anvi and partner, Jatin Kumar, were killed in the deadly crash shortly after 6pm on November 5.
Their friend Vevek Bhati and his 11-year-old son Vihann died at the scene, while his partner and six-year-old son were injured.
Police allege Mr Swale, who has lived with diabetes for three decades, had low blood sugar and ignored nine warnings on his phone before the crash.
First responders found the Mount Macedon man unable to communicate at the scene, with witnesses describing him as “hot, sweaty and clammy”.
“The collision can be attributed to a failure to treat his blood glucose levels,” Detective Sergeant Peter Romanis alleged.
“The decision to return to his vehicle and continue to drive whilst knowing his blood glucose levels were low and without sourcing the required treatment has caused catastrophic and fatal consequences for all the families involved.”
Mr Swale had been making his way home after attending a multi-day national clay target shooting championship in Clunes – a half-hour drive west of Daylesford.
On Monday, the court was told Mr Swale scanned his blood glucose at 5.17pm and was made aware that his levels were “well outside” the parameters set by the app.
Prosecutors allege he “ignored” eight further alerts by his phone between 5.18pm and 6.06pm before he lost control of the car.
CCTV footage showed him entering a restaurant opposite the pub at 5.20pm asking for a table but returned to his car after he was turned away.
The court was told Mr Swale had a lengthy history of “excessive speeding”, with 32 fines and one criminal offence.
Applying for bail on Monday, Mr Swale’s lawyer, Martin Amad, told the court that his client had effectively managed his condition for decades and his actions on the day were “inconsistent with all he’s done previously”.
“It’s the defence case there’s a reason for that,” he said.
“We don’t know if he was in a position to adequately understand the alerts.”
Mr Adam said, on the defence case, this was “fair and square a medical episode”, noting his client would contest the charges.
The court was told Mr Swale had a conditional driver’s licence because of his diabetes and had been given a two-year extension in June after an endocrinologist reported his condition was “well managed”.
Mr Swale was granted bail shortly before 1pm after Mr Sonnet said he had been satisfied the “high bar” for bail had been reached.
Initially, Mr Swale’s son had offered a $500,000 surety, but Mr Amad said they would need to “calculate” what equity he had on his home.
“Would Your Honour consider $200,000?” he questioned.
Mr Sonett countered with $250,000, to which Mr Amad quickly replied “deal”.
The court was told Mr Swale would be released on Friday afternoon to reappear in the Ballarat Magistrates’ Court in April for a committal mention.
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