A Central Criminal Court judge told the jury in the trial of Stephen Silver, who denies the murder of Gda Colm Horkan, that they had to use ‘common sense’ to appreciate the testimony of two consultant psychiatrists who differed on the mental state of the accused at the time. he shot the detective.
Judge Paul McDermott told the seven men and five women that they are not bound by expert evidence and have the right to prefer the evidence of one psychiatrist over another. He told them that this was not a “trial by expert, but a trial by jury” and that if they are convinced that Mr. Silver murdered Gda Horkan, then they must determine whether his responsibility for the murder was significantly reduced due to a mental disorder.
Mr Silver (46), a motorcycle mechanic from Augaward, Foxford, Co Mayo, has pleaded not guilty to the murder of Det Garda Horkan knowing or being reckless as to whether he was a member of An Garda Siochana acting in accordance with his duty. He pleaded guilty to manslaughter on the basis of mitigated responsibility, in Castlerea, Co Roscommon on June 17, 2020.
Mr. Silver accepts shooting and killing Gda Horkan using the detective’s own gun. Gda Horkan suffered eleven gunshot wounds. Dr Brenda Wright, a psychiatrist called by the defence, said the defendant suffered at the time from bipolar affective disorder, a mental illness which diminished his liability.
Professor Harry Kennedy, who was called by the prosecution, disagreed with Dr Wright and said Mr Silver’s mental capacity was intact at the time of the murder. Judge McDermott told the jury that Mr Silver’s plea means a not guilty verdict is not available. For him to be convicted of murder, the prosecution must prove that he unlawfully killed Gda Horkan and that at the time he intended to kill or seriously injure.
If he is guilty of unlawful killing but without the necessary intent, he said, they must find him not guilty of murder but guilty of manslaughter. If they conclude that he had the necessary intent, then they must consider whether the prosecution has proven beyond a reasonable doubt that Gda Horkan was a member of An Garda Siochana acting in the performance of his duties and that Mr. Silver either knew or was reckless as to whether he was a garda acting in the performance of his duties. If they find that all of those ingredients have been proven, the prosecution will set up the “capital murder” case, he said.
The defense of mitigated liability arises, he said, if the jury is satisfied that murder or capital murder has been proven. For the defense to succeed, he said, the accused must first establish that he suffered from a mental disorder. He reminded the jury that there was evidence that Mr. Silver had been diagnosed with bipolar affective disorder. He said the defendant also had to prove that he had relapsed or was relapsing into an acute phase of the disease at the time of the shooting, so that “significantly reduces his liability for the acts at the time. “.
If the jury accepts, it is more likely that he suffered from a mental disorder that significantly diminished his liability than it reduces murder or capital murder to manslaughter, the judge said. He said they should make their decision unemotionally and by weighing the evidence and conclusions they are happy to draw using their common sense.
He said: ‘You are not bound to accept medical evidence presented as expert testimony, you give it whatever weight you deem appropriate. If there is other evidence that contradicts or outweighs it or leads you to believe that it is unreliable, you have the right to act on that basis because you are the triers of fact and have the right to consider the evidence as a whole.
He asked them to consider whether Mr Silver’s liability was diminished and if it was ‘substantially diminished’ and if the defense established that it was more likely to be the case then the appropriate verdict would be homicide involuntary.
He said, “You must be wondering if his responsibility was greatly diminished by an operative mental disorder? Was it a real mental disorder, a real contributing factor or cause of his actions at the time?
He said the jury must also consider the extent of the mental disorder, the extent of its effect on the defendant, his decision-making and “in particular his decision to shoot and kill the victim”. .
“It’s a question that you have to assess based on all the evidence, in a good way, taking into account the medical evidence but also the other evidence that you’ve heard,” he said.
The jury is entitled to consider the behavior of the experts during their testimony and the level of rigor in their approach, he said. Judge McDermott will continue his charge to the jury on Friday.