David Swain Appellant v The Queen Respondent

JurisdictionBritish Virgin Islands
JudgeThe Hon. Mde. Ola Mae Edwards,The Hon. Mr. Davidson Kelvin Baptiste,The Hon. Mde. Janice M. Pereira
Judgment Date29 September 2011
Judgment citation (vLex)[2011] ECSC J0929-3
Date29 September 2011
CourtCourt of Appeal (British Virgin Islands)
Docket NumberHCRAP 2009/008
[2011] ECSC J0929-3



The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Janice M. Pereira Justice of Appeal

HCRAP 2009/008

David Swain
The Queen

Dr. Joseph Archibald, Qc, Patricia Archibald With Him, for the Appellant

Ms. Elizabeth Hinds, Director of Public Prosecutions, for the Respondent

Criminal appeal against conviction and sentence - Murder - Withdrawal of the appellant's defence of accident by the trial judge - Whether the defence of gross negligence manslaughter or the defence of unlawful act manslaughter should have been left to the jury by the trial judge - Whether a retrial should be ordered

Held: allowing the appeal, quashing the conviction, setting the sentence aside and discharging the appellant, that:

  • 1. The trial judge's withdrawal of the appellant's defence of accident and the absence of any or adequate directions to the jury to assist them in assessing and evaluating the transcript of the Rhode Island depositions of the appellant, amount to material irregularities which make the appellant's conviction for murder unsafe.

  • 2. To obtain and sustain a conviction for manslaughter by gross negligence, it is necessary for the prosecution to establish that the defendant: (i) owed a duty of care to the deceased; (ii) was in breach of that duty; (iii) that the breach of duty caused the death of the deceased; and (iv) that the defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion to a crime.

    R v Bateman (1925) 19 Cr. App. R. 8 cited; R v Adomako [1994] 3 W.L.R. 288 applied.

  • 3. In the present case, neither gross negligence manslaughter nor unlawful act manslaughter was a viable alternative to be left to the jury by the trial judge. The evidence relating to the panic history of the deceased in her diver's log book entries and the appellant's knowledge of this, provided no sufficient basis for lesser verdicts to be left to the jury. Having regard to the way in which the trial developed, the alternative verdict of manslaughter was not really a live issue; it would have been confusing for the jury to be advised of a possibility of a manslaughter verdict which could make no sense in the circumstances of the trial.

  • 4. The decision whether to order a retrial involves consideration of the public interest and the legitimate interests of the appellant. In the present case, the legitimate interest of the appellant calls for consideration of the time which has passed since the alleged offence and any penalty already paid. In the circumstances, the Court does not consider it appropriate to order a retrial, particularly where the evidence falls short of establishing criminal liability.

    Archbold Criminal Practice 2007 cited; Sherfield Bowen v The Queen Antigua and Barbuda Criminal Appeal No. 4 of 2005 (delivered 20 th June 2007, unreported) cited.


This is the judgment of the court. The appellant and the deceased who were married for six years lived in Rhode Island in the USA. They came on a sailing and diving trip to the British Virgin Islands in March 1999 along with another couple, the Thwaites, and their infant son. Mr. Swain is an experienced diver with top qualifications in diving, has dived all around the world and at the material time he operated a dive shop in Rhode Island. His deceased wife was also an experienced diver and was at the time of her death qualified to the standard of a rescue diver. She had dived over 300 times in the waters of Rhode Island which, compared to the pristine waters of the Virgin Islands, are murky and difficult.


On 12 th March 1999, the Swains donned their diving equipment and went from their vessel 'The Caribbean Soul' into the sea. Shortly after 12:00 p.m. the Swains dived on the Twin Wrecks off Coopers Island, an underwater attraction in the BVI. They left the Thwaites on board the vessel. There were no other divers in that vicinity at the time. It was their last planned dive for their holiday, and it turned out to be their last dive together.


A tragedy occurred under the water. After a little more than half an hour, Mr. Swain returned to the surface without Mrs. Swain. He enquired from Mr. Thwaites if his wife had returned. Mr. Thwaites told him no and then dived only to discover the fin of Mrs. Swain embedded by its blade in the sand with its heel portion up and the heel strap irregularly stretched below the sole. After swimming underwater he discovered the body of Mrs. Swain lying face up without her face mask, her mouthpiece which brought air from the tank was not in place, her eyes were open, and her arms were up. He held her and swam with her up to the surface.


He did what he was trained to do by giving her mouth to mouth resuscitation. Mr. Swain came by in a dingy and did Cardio-Pulmonary Resuscitation (CPR) on her briefly. When he stopped the procedure, Mr. Thwaites attempted to continue but was stopped by Mr. Swain who told him no. The established diving protocol for divers is to attempt resuscitation until the rescuers have no more energy left or someone of higher qualifications takes over. They were all expert divers.


After Mr. Thwaites was stopped by Mr. Swain from giving Mrs. Swain resuscitation, he tried to radio on the Mariner's Channel to call "mayday" for emergency. Mr. Swain dissuaded him, saying that he did not want any crowd to gather. Mr. Swain used his cellular phone to call Virgin Islands Search and Rescue who radioed for assistance. Assistance eventually arrived and Mrs. Swain was taken in a vessel into Tortola. She was declared dead and a post mortem was subsequently conducted. The findings in the autopsy report were that she had pulmonary oedema and congestion; white foam in her upper and lower airways; bilateral hydrothorax; cerebral oedema; haemorrhage of petrous bones; coronary artherosclerosis, mild to moderate; old and recent contusions of the lower extremities, and abrasions of her dorsal left hand. The report listed her manner of death as an accident.


Mr. Swain returned to Rhode Island a few days after her death and resumed his normal life. Prior to their marriage, the Swains made an ante nuptial agreement from which he stood to benefit on the death of his wife. He collected the proceeds of a life insurance policy on Mrs. Swain's life. Under her will he inherited property to a value of approximately $650,000.00. He expanded his business, and enjoyed another relationship with a female who turned out to be a prosecution witness at his trial.


Subsequently, Mrs. Swain's father filed a civil suit against Mr. Swain in Rhode Island for causing her wrongful death. Mr. Swain testified at the trial in Rhode Island in 2004 and also gave two depositions before the trial of the suit. He was found liable for her death. Following the conclusion of the suit, he was extradited to Tortola where he was arrested and charged with her murder.


At the trial in Tortola, the prosecution case depended solely on circumstantial evidence. The prosecution's theory was basically that Mr. Swain planned to kill his wife and took certain steps cutting off her air supply while they were diving, and then swam around until it was likely too late for her to be revived. Discontinuing CPR was one step to ensure she was not revived. The motive, according to the prosecution, was financial gain from the proceeds of the insurance policy and her estate, and his desire to pursue a romantic relationship with a lady who two years later, ended that relationship. This lady testified as a prosecution witness at Mr. Swain's murder trial in 2009. Love letters between them were also tendered in evidence at the trial.


During the trial, a transcript of the recorded depositions taken in Rhode Island from Mr. Swain were admitted in evidence as part of the circumstantial evidence after being edited on the instructions of the trial judge. 1 They were edited to remove those portions which the Director of Public Prosecutions and counsel for Mr. Swain agreed were prejudicial to Mr. Swain's case. A diving expert investigator, Mr. Jenni, who was present at the wrongful death civil suit trial in Rhode Island, also testified at the criminal trial in Tortola as a prosecution witness. Mr. Jenni testified about Mr. Swain's evidence at the trial in Rhode Island, 2 his (Mr. Jenni's) investigations in Tortola and Rhode Island, and his conclusions from those investigations. He testified that after attending and observing the proceedings in the civil trial he was of the opinion that Mr. Swain killed his wife.


Mr. Swain also testified at his trial and called expert witnesses to negative the prosecution's case, and to establish that Mrs. Swain's death had been an accident, and further that she could have died from medical causes, having regard to the paucity of findings and the failure of the pathologist to carry out further forensic inquiries and tests.


The edited transcript of the two depositions was comprised of some 261 pages. The learned trial judge treated Mr. Jenni's testimony as evidence from an expert in dive accident investigations, and gave the jury general expert directions without more. Mr. Jenni gave a blow by blow account of what Mr. Swain had said in the Rhode Island civil trial and tendered a number of exhibits. At the end of a protracted trial lasting three weeks, the learned trial judge failed to give the jury any directions at all as to how they were to deal with the evidence in the transcript of the depositions. She simply told them: 3

"You have the transcript of the Rhode Island proceedings which has been reduced into writing for ease and convenience. It has not been challenged as to its accuracy. So you will use that also as the evidence in this case." 4

She gave the jury no...

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