Diver convicted in wife's drowning

[Rhone Man]

What is the opinion in the legal community of the defense team's job?

I haven't heard much comment either way. Hayden is a sort of friendly acquiantance of mine (although I have never discussed the case with him) - I used to work with his wife. He is a perfectly able lawyer, but as I said, defence attorneys have an uphill struggle with BVI juries.

The hints that I have read in the media suggest that they think they have some grounds for appeal in Justice Charles's summation to the jury, and historically that has been a quite productive route for defence counsel.

 

[Scott L]

I haven't heard much comment either way. Hayden is a sort of friendly acquiantance of mine (although I have never discussed the case with him) - I used to work with his wife. He is a perfectly able lawyer, but as I said, defence attorneys have an uphill struggle with BVI juries.

The hints that I have read in the media suggest that they think they have some grounds for appeal in Justice Charles's summation to the jury, and historically that has been a quite productive route for defence counsel.

Tough question but it has been mentioned that the defence did not have the financial resources for expert testimony, etc. He chose to retain private counsel which I applaud but should he have gone the goverment route instead or is their a combination package avialiable in the BVI's? Sorry if I just gave you a headache.

 

[openmindOW]

I know Dave very well, the jury is wrong. In the 20+ years I've known him I've never heard him talk of or do violence to anyone not once. I've seen him angry, I've heard him curse but never threaten or hit. there was not one piece of evidence against him no marks on her no autopsy done. I'm still trying to digest it.

AfterDark, I appreciate what you are saying. I thank you for posting here on ScubaBoard. I cannot imagine how difficult this must be for you.

In light of your post here, AfterDark, I'd like to ask some questions about this case that have had me wondering.

I have tried to follow some of the news accounts of this case and I have two sets of questions about the case. Perhaps you would be willing to answer them for me. I just want to understand the facts.

First, I believe that I read somewhere that the victim's mask was "broken" and that this may have been seen as evidence of a struggle underwater. Is it true that the victim's mask was broken? If so, how was it broken? That is, was the glass broken? The frame? Can you shed any light on this issue?

Second, it is my understanding that the victim was an experienced and well-trained diver. Is that accurate? If so, might that fact have lent credence to the idea that she must have been murdered, as an experienced diver would have been unlikely to have died accidentally on a fairly easy dive in good conditions?

Again, I am just trying to understand the facts.

 

[openmindOW]

. . . civil suits are somewhat easier to prove since no one is going to jail (I'm no lawyer but I believe the burden of proof is simpler in a civil suit . . . .

That's true.

In the USA, the burden of proof in a civil case is "preponderance of the evidence." The plaintiff must prove his case by a preponderance of the evidence. This is a lower standard than that in a criminal case.

In a criminal case in the USA, the burden of proof is "beyond a reasonable doubt." The state must prove its case beyond a reasonable doubt. That's a higher standard than that in a civil case.

 

[Rhone Man]

Tough question but it has been mentioned that the defence did not have the financial resources for expert testimony, etc. He chose to retain private counsel which I applaud but should he have gone the goverment route instead or is their a combination package avialiable in the BVI's? Sorry if I just gave you a headache.

You don't usually get a very good lawyer if you go through the Govt's legal aid scheme (most firm's have some very junior attorney do the legal aid work), so he was probably better of with Hayden. But most people of means who are charged with a serious crime like murder will hire a Queen's Counsel (honorary title bestowed on very senior and respected lawyers) to defend them, but Swain clearly wasn't able to afford one.

I suspect not being able to afford his own expert testimony did hurt him though - if the jury only hears one set of expert evidence, and that is the prosecutor's witness who tells them that the gear worked perfectly but showed scratches consistent with signs of a struggle, unless he is totally demolished on cross examination, they are going to tend to believe that evidence.

 

[openmindOW]

. . .[*]No time limit on jury's deliberations in the BVI. Usual rule of thumb is that if they haven't reached a verdict after 2 full days deliberation, the judge will ask them if they think they are going to be able to. If not (ie. they are irrevocably deadlocked), he would discharge them and record a not guilty verdict.

[*]Cheating on your wife wouldn't be admissible as evidence of bad character (character evidence is almost never allowed in English common law jurisdictions), but it might be admissible as motive. Whether a jury is able to draw the distinction is another issue. The judge would be expected to give a very careful direction on that.

[*]It is a small island, and people do talk a lot. Certainly when the original incident happened, a lot of people (particularly the diving community) assumed guilt on the part of Swain. But it was 10 years ago, and although I am sure it is awful for the two families involved, it hasn't really been the subject of that much media attention down here.
[/LIST]

Thank you, RhoneMan, for your posts.

I'm in the USA, and I am not familiar with law in BVI. Could you tell us what the burden of proof is in a criminal trial in BVI?

How many people are on a criminal jury in BVI? What is the population of BVI?

Can you tell us what may have led the jury to convict in this case? Were there fats that were suspicious?

Has Swain filed an appeal? If so, what is the basis of it?

 

[DandyDon]

AfterDark, I appreciate what you are saying. I thank you for posting here on ScubaBoard. I cannot imagine how difficult this must be for you.

In light of your post here, AfterDark, I'd like to ask some questions about this case that have had me wondering.

I have tried to follow some of the news accounts of this case and I have two sets of questions about the case. Perhaps you would be willing to answer them for me. I just want to understand the facts.

First, I believe that I read somewhere that the victim's mask was "broken" and that this may have been seen as evidence of a struggle underwater. Is it true that the victim's mask was broken? If so, how was it broken? That is, was the glass broken? The frame? Can you shed any light on this issue?

Second, it is my understanding that the victim was an experienced and well-trained diver. Is that accurate? If so, might that fact have lent credence to the idea that she must have been murdered, as an experienced diver would have been unlikely to have died accidentally on a fairly easy dive in good conditions?

Again, I am just trying to understand the facts.

If I may, I think some of the articles said her mask strap and snorkel mouthpiece were broken, which could theoretically happen with a diver experiencing a medical episode - which was not ruled out by a more complete autopsy.

 

[AfterDark]

AfterDark, I appreciate what you are saying. I thank you for posting here on ScubaBoard. I cannot imagine how difficult this must be for you.

In light of your post here, AfterDark, I'd like to ask some questions about this case that have had me wondering.

I have tried to follow some of the news accounts of this case and I have two sets of questions about the case. Perhaps you would be willing to answer them for me. I just want to understand the facts.

First, I believe that I read somewhere that the victim's mask was "broken" and that this may have been seen as evidence of a struggle underwater. Is it true that the victim's mask was broken? If so, how was it broken? That is, was the glass broken? The frame? Can you shed any light on this issue?

Second, it is my understanding that the victim was an experienced and well-trained diver. Is that accurate? If so, might that fact have lent credence to the idea that she must have been murdered, as an experienced diver would have been unlikely to have died accidentally on a fairly easy dive in good conditions?

Again, I am just trying to understand the facts.

My understanding of those facts are: yes the mask strap was broken. That could
indicate a struggle yes, it could also indicate panic which she sometimes found herself fighting it was in her own dive log. Yes, she was an experienced diver, being Dave's wife and diving with Dave it would be hard not to be. The problem is an autopsy was never done so there is no way of knowing what if anything besides a deliberate act could have caused her drowning. Right there bells should be going off! I'm also lead to understand that her equipment was not confinscated by the BVI police right away and no examanation of it was done until much later. Two alarms. I of course can't say he didn't do this with certainty but the man I know as David Swain would have to be 180 out sync to do it. As I've said before I've never heard him even speak of violence towards another never mind do it. It would take a lot more hard evidence than I've heard to convince me. Thanks for asking.

 

[Rhone Man]

Could you tell us what the burden of proof is in a criminal trial in BVI?

Beyond reasonable doubt. The usual direction given to juries is that they must be "sure" of the defendant's guilt.

How many people are on a criminal jury in BVI?

Nine

What is the population of BVI?

About 22,000, but the jury is drawn from the electoral roll, which is only about 7,000.

Can you tell us what may have led the jury to convict in this case? Were there fats that were suspicious?

I don't honestly know. The media reports tend to focus on two things, the evidence of the expert asserting that the damage to the equipment was consistent signs of a struggle but otherwise seemed to work perfectly, and the defendant's demeanor. But certainly in my experience journalists are lousy at correctly identifying key issues in legal trials.

Has Swain filed an appeal?

I think his lawyers have indicated that they will file an appeal, and they have suggested it will be based upon the summation that the judge gave to the jury.

 

[openmindOW]

My understanding of those facts are: yes the mask strap was broken. .

Just the mask strap? Could that have occurred during the recovery?