SWAIN

A magistrate judge on the Caribbean island of Tortola ruled Thursday that enough evidence exists to prosecute former Jamestown Town Council member David Swain for murder in the 1999 scuba diving death of his wife, Shelley Tyre.

The decision placed Swain’s case down for trial in October, when the island’s judicial system normally takes up capital cases. Swain, the former owner of the Ocean State Scuba dive shop, will be arraigned then and will enter a plea. But the trial will likely not begin until sometime this winter, said one of Swain’s Boston-based lawyers, Jeffrey A. Denner.

Until then, Swain, 52, will remain held without bail in a Tortola prison.

Denner said he was not surprised by the magistrate’s decision, since the standard of proof used during the inquest — similar to a grand jury proceeding — “was pretty low.”

The local prosecutor introduced evidence and presented witnesses without Swain or his local lawyer having a chance to rebut any of the material, said Denner.

“They have put on a case and we have not,” Denner said. “Frankly I would have been surprised if it [the case] had been kicked out now.”

The magistrate’s decision came a day after the final four witnesses for the prosecution either testified or had their taped depositions heard by the judge. Among the depositions used was that of Bruce Hyma, the chief medical examiner for Miami-Dade County, Fla., who testified during Swain’s 2006 civil trial in Providence that Shelley Tyre’s death was a homicide.

The jury in that case ruled that Swain had intentionally killed his wife of 5 1/2 years with “malice aforethought.”

Tortola’s inquest into Tyre’s death — initially ruled an accident by island authorities until the civil trial’s verdict forced them to reopen the case — had been spaced out over months and interrupted when some key witnesses could not make it to earlier-scheduled appearances.

Among them was Christian Thwaites, who testified before the magistrate on Wednesday. Thwaites, his wife and their young son were vacationing with Swain and Tyre at the time of her death. Thwaites, who lives in Vermont and summers in Saunderstown, found Tyre unconscious, if not already dead, on the sandy ocean bottom under about 80 feet of water.

Swain has maintained his innocence “and is anxious to get a speedy resolution of this,” Denner said on Thursday.

Shelley Tyre, a 46-year-old experienced diver, died March 12, 1999 while she and Swain were diving over the wrecks of two tugboats. Swain has said repeatedly that he separated from his wife while underwater and doesn’t know what happened to her.

Tyre’s parents, Richard and Lisa Tyre, now of Canton, Mass., brought a wrongful death lawsuit against Swain in 2002. The parents invoked the state’s “Slayer” statute, which prohibits anyone from benefiting from the estate of someone they have killed.

Their lawyer, J. Renn Olenn, told the jury during Swain’s 2006 civil trial that Swain killed Tyre at a time when he was romancing another woman and while knowing that a prenuptial agreement prevented him from receiving any of Tyre’s assets if they divorced.

Olenn said yesterday, “The Tyres are delighted and gratified by the move and they have every confidence that the people of Tortola will make sure justice is done.”

Last November, almost nine years after Tyre’s death, federal marshals, armed with a murder warrant from Tortola, arrested Swain at his Jamestown scuba shop.

In May the Rhode Island Supreme Court upheld the civil finding against him and last month a probate court judge also delivered him bad news, prohibiting Swain or either of his two children from an earlier marriage from receiving anything from Shelley Tyre’s estate.

tmooney@projo.com