By SHAUN KIRBY
David Swain, convicted of murdering his wife, Shelley Tyre, in 1999 while on vacation in the British Virgin Islands, was freed last Thursday after judges of the Eastern Caribbean Supreme Court of Appeals overturned a 2009 decision that had incarcerated him for the past two years as part of a life sentence.
The Court of Appeals rescinded the 2009 murder conviction of Swain, a Jamestown resident and former councilman, because of inadequate instruction for the jury to handle evidence provided from a 2006 civil suit filed in Rhode Island. That case, filed against him by Tyre’s parents, was successful and awarded them $3.5 million, forcing Swain to file for bankruptcy.
The court also found that the 2009 trial judge, Indra Hariprashad-Charles, ‘withdrew [Swain’s] defense of accident,’ preventing him from a fair judgment. Dr. Joseph S. Archibald, Swain’s defense attorney, argued both inadequacies to the three-judge panel on Thursday.
“The result is that we are satisfied that the trial judge’s withdrawal of the appellant’s defense of accident and the absence of any or adequate directions for the jury to assist them in assisting the Rhode Island depositions of the appellant amount to material irregularities, [making] the appellant’s conviction for murder unsafe,” the appeals court said.
The appeals court deemed that, considering it has been 12 years since Shelley Tyre’s death, a retrial would be impossible.
“We do not consider it appropriate to order a new trial,” the Court of Appeals said “particularly where the evidence falls short of establishing criminal liability, and 12 years have passed since the alleged offense.”
In 1999, Swain and his wife, along with another family, had been diving from their sailing vessel Caribbean Soul to a shipwreck nearby. Swain came up alone 35 minutes after the couple initially dove to the wreck, and Tyre’s body was found a short time afterwards. Tyre’s regulator was out of her mouth and her facemask ripped off, and all of her other gear was found to be in good working order. Tyre was a trained diver and in good physical condition, having logged 354 dives.
The 2009 court sentencing document also stated as fact that Swain made a number of unusual decisions after his wife’s body was brought back to the surface. Swain prevented a friend from issuing a Mayday call because ‘he did not want everyone coming around.’ Furthermore, according to Professional Association of Diving Instructors (PADI) regulations, equipment from a diving accident must be held isolated until authorities take possession. Tyre’s equipment was held by the owner of a local business, and Swain had visited the establishment twice, ordering the owner to dispose of his wife’s equipment.
The case was initially ruled as an accident until Tyre’s parents brought their civil suit against Swain in 2006, finding him ultimately responsible for his wife’s death. Incarcerated and without any money, Archibald has defended his client’s innocence and deems that, because the 2009 decision was made inadequately, Swain has not been let go on a technicality.
“[Swain] was a good client and faced his fate with dignity,” said Archibald. “I told the Court of Appeals that there is no record of any unpleasantness between Mr. Swain and his wife leading up to the event.”
“The allegations of the court were thus not based in fact, and it is unfortunate he had to take years of his life to wait on a decision,” he added. “I’ve been very pleased to help this man as it was not an easy case to argue. This decision was given on merit, not a technicality. The man is a grieving widower. Those are my views.”
The East Caribbean Supreme Court is different than any United States court in the sense that the judges are appointed independent of the government by a judicial commission. They are not political appointments based upon whichever government administration is in place.
“The judges here have more power than in the United States,” Archibald said. “They have unlimited jurisdiction and determined that Mr. Swain should be free.”
The court of appeals is also an itinerant one, moving from one island country to the next in order to hear cases. The written judgement of Swain’s release has subsequently not been issued to the public.
“We had hoped to have a written judgment, but it has not come through yet,” said Archibald. “I will therefore not say a word outside of the written judgment, so far as the substance of the case is concerned.”
Attorney J. Renn Olenn, the prosecuting lawyer and representation for the Tyre family, was unavailable for comment after multiple attempts to contact him.