Majella Holohan has done the State some service in challenging the legal system
One can understand the grief and upset of the Holohan family at the seeming imponderables in how the case against the killer of their son, Wayne O'Donoghue, was conducted and the apparently meagre four-year sentence that was applied. Majella Holohan, in her moving impact statement, expressed wonderment at why certain seemingly obvious evidential facts were not highlighted in the case. Her husband, Mark, expressed disdain at the sentence.
At the outset ,we want to say that the case was conducted with scrupulous fairness by the judge, Paul Carney. It is also clear that the DPP and the Gardaí behaved with comparable propriety. But there are problems with a system that seem to victims and to so many "lay" people to be inexplicable and unfair. The language and etiquette of the legal system exclude "lay" people, exclude them from an understanding of what is going on and the reasons for it.
The old judicial cliché that it is not good enough that justice is done, but that justice must be seen to be done is applicable. In this instance, although justice was done, it was not seen to be done. This is not the fault of Paul Carney, nor of the DPP, nor of the Gardaí, nor of the lawyers involved the case. It is a fault of the mumbo-jumbo of the legal system, which, unthinkingly, we inherited from the British, who had no concern for how the "ordinary" person perceived the justice system. It would help greatly if the "circus" element of judicial proceedings were got rid of – the wigs, gowns and bibs, the archaic, sycophantic language, the bowing and scraping and the rest of the codology.
This has no place in a democratic republic, where all citizens, including judges, are supposedly equal and where the proceedings of the courts should respect the equality of citizens by having procedures and language accessible to the citizenry at large. Were this to be so, then the apparent "technicalities" of the system might appear less impenetrable.
The laws of evidence, for instance, are not legal technicalities to confuse lay people and engage lawyers. They are designed to ensure fairness in a trial and the exclusion of any material that would unfairly bias the minds of a jury. Therefore reference to a sexual dimension in a trial such as that of Wayne O'Donoghue would immediately bias a jury and would do so unfairly unless the reference was backed up with evidence that was relevant to the case.
In this instance it would have been grossly unfair for any reference to be made to semen being found on the body of Robert Holohan, unless a connection could be established to Wayne O'Donoghue and then only if it was relevant to the crime or the motivation for the crime. This was not so in this case and therefore any reference to this would have been grossly unfair.
The newspaper headlines of Wednesday, 25 January, are a gross libel on Wayne O'Donoghue, but would a jury here even find in his favour in a libel case?
On the issue of sentencing, four years for the taking of a human life of a boy that so obviously brought such delight to his parents and others seems to devalue that boy's life and worth. But sentencing is not an exercise in vengeance, as Susan Denham of the Supreme Court said in a judgment a few years ago. Of course, the impact on the family of the victim must be a factor but the nature of the crime and the personal circumstances of the accused are the most pressing factors, and in this case Paul Carney seems to have got it about right.
Remember in another high profile murder/manslaughter case, where the evidence against the accused was far more damning than in this instance? This was the Padraig Nally case – Nally calculatedly and deliberately reloaded a shotgun and chased an already badly beaten and disabled man down a laneway and then shot him dead at close quarters. Curiously the jury found Nally guilty just of manslaughter and then Paul Carney sentenced him to just six years imprisonment.
In this instance there was no evidence of deliberation, the evidence pointed to this being an accident. It is true Wayne O'Donoghue behaved outrageously in the aftermath of the killing in pretending to succour the family of his victim, in engaging in a search, at all times knowing where the body was hidden and only when the net was closing in going to the Gardaí and owning up. But in the range of criminality this was not in the category of grievous, however grievous the loss and pain to the Holohan family.
Majella Holohan has done a service in raising questions but more so in prompting questions about the workings of our legal system that seem to so many to be arcane.
One further observation: Majella Holohan made reference in his statement to the "suspicions" that surrounded members of the Holohan family while Robert's body was being searched for. As is so often the case in circumstances such as this, the suspicions were widespread, although entirely unfounded, and they did terrible additional damage to this afflicted family.