In 2024, a magistrate dismissed all charges against an individual after determining his actions were not intentional.
Currently, a coroner is set to examine the fatal crash, with Swale being one of the many witnesses summoned to provide testimony.
Last December, Swale formally opposed this process, as his lawyer, Dermot Dann KC, argued in court that it could be detrimental to his client.
Nonetheless, today, coroner Dimitra Dubrow ruled that for justice to be served, Swale must testify at the inquest.
Swale, who has type-1 diabetes, experienced a severe hypoglycemic episode while driving, leading to a crash into patrons sitting outside the Royal Daylesford Hotel at 6:07 PM on November 5.
The tragic incident resulted in the deaths of Pratibha Sharma, 44, her daughter Anvi, 9, her partner Jatin Kumar, 30, along with their friend Vivek Bhatia, 38, and his son Vihaan, 11. Additionally, six others sustained injuries.
Prosecutors alleged Swale had ignored warning signs about his declining glucose levels and was negligent in driving from 5.36pm that evening.
Magistrate Guillaume Bailin dismissed the case, finding Swale was already suffering a severe hypoglycaemic episode at that time so his actions were involuntary.
Victoria’s Director of Public Prosecutions chose not to directly indict Swale because the expert evidence had deprived any reasonable prospects of a successful prosecution.
But Dann argued Swale’s evidence at the inquest could lead prosecutors to reformulate their case and file fresh charges.
Dubrow accepted Swale could face a direct indictment on a differently framed case but said the risk of that happening was “relatively low”.
The coroner said she would give Swale a certificate, which would prevent prosecutors from using his evidence against him in any future criminal proceedings.
She also noted Swale would be able to retain his right to silence if prosecutors decided to file a direct indictment.
Ultimately, Dubrow found it was in the interest of justice for Swale to give evidence at the inquest because his recollection was of “critical importance”.
The coroner said Swale was yet to provide a fulsome account of what happened on November 5.
The evidence of his actions and diabetic management would inform the findings on the circumstances of the fatal crash and any prevention recommendations, Dubrow said.
The inquest is due to be held in March.
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