Semen was not Wayne O'Donoghue's - solictitor

Majella Holohan's challenge to the legal system was moving and powerful, but the issues she raised appear to have a reasonable explanation. By Vincent Browne

The semen discovered on the body of Robert Holohan, after his body had been discovered, was NOT that of his killer, Wayne O'Donoghue, according to O'Donoghue's solicitor, Frank Buttimer. The issue of the semen has become central to public discussion of the Robert Holohan murder/manslaughter trial following the claim by Robert Holohon's mother, Majella, that semen was found on her son's body. Frank Buttimer said had forensic evidence shown that the semen was Wayne O'Donoghue's it would certainly have been part of the evidence adduced against his client on the murder charge.

The State Pathologist, Marie Cassidy, and another eminent pathologist who gave evidence for the defence, Jack Crane, both said there was no evidence of sexual abuse in the case and no evidence of any physical assault, other than that consistent with Wayne O'Donoghue's evidence of how he strangled the boy.

Majella Holohan raised the following eight issues in her powerful, emotive "victim impact statement" at Ennis courthouse on Tuesday, 25 January (we have paraphrased Majella's points here):

• Semen was found on her son's body.

• There were no marks on Wayne O'Donoghue's car, which suggested the latter's claim that Robert Holohan had been throwing stones at the car was an implausible explanation for what led up to Robert Holohan being strangled.

• There were no fingerprints on Robert Holohan's mobile phone when it was found eventually.

• Images on the mobile phone were deleted.

• Her son received a phone call on his mobile phone from Wayne O'Donoghue at 6.30 am on a morning prior to his disappearance, suggestive of an intimate relationship between the two.

• Her son was in the bedroom of Wayne O'Donoghue at 7.30 am on a morning, when he supposedly was on a sleepover in a friend's house, again suggestive of an intimate relationship.

• Her son telephoned the emergency number, 999, on the morning of his killing, suggestive of an ordeal or a crisis.

• Her son's footwear (runners) had been discarded by the time his body was found, suggesting that he had not been cycling immediately prior to his killing, as had been claimed.

Newspapers and callers to radio programmes have expressed surprise that these matter were not put in evidence at the trial and the implication of Majella Holohan's statement was that crucial evidence was excluded which, had it been admitted, would have changed the verdict from one of manslaughter to one of murder.

Garda investigations into the killing of Robert Holohan, in January 2005, took place right up to two weeks before the trial of Wayne O'Donoghue, commenced at a special sitting of the Central Criminal Court in Cork in November 2005. During the course of their investigations gardaí paid specially attention to a mat in the bathroom of the home of Wayne O'Donoghue. The latter brought Robert Holohon to the bathroom after he had been strangled, in the hope of reviving him and while there laid the body on a mat. The gardaí apparently attached significance to the mat as a source of possible relevant forensic evidence but, in the event, nothing came of it.

There was forensic examination of the traces of semen found on one of the hands of Robert Holohan but, we are informed by Frank Buttimer, solicitor for Wayne O'Donoghue, this established that the semen was not that of Wayne O'Donoghue.

On the issue of marks on O'Donoghue's car, this evidence was presented to the jury which, one presumes, took it into account along with the other evidence in the case, and concluded the proper verdict was manslaughter, not murder.

Had evidence related to the semen issue been introduced in the case it is very likely the trial would have been aborted because of the prejudicial impact such evidence would have had on a jury, in the absence of any evidence linking the accused with the semen sample.

The absence of fingerprints on Robert Holohan's phone was inconclusive and of no evidential value, we are informed.

Matters concerning the use of Robert Holohan's phone are confused by the fact that the phone was not properly timed – the proper time and date were not inserted at the time the phone was first used, which means that times of calls to and from the phone gave misleading impressions.

For instance, whereas the phone indicated that a photograph had been taken by the phone (it was a camera-phone) at 7.30 am, in fact the time the photograph was taken was much later, perhaps up to 12 hours later. This, we are informed, explained the unusual timing of a call to the mobile phone by Wayne O'Donoghue at 6.30 am one morning and the "presence" of Robert Holohan Wayne O'Donoghue's bedroom at 7.30 am, when in fact the time was much later – Robert Holohan, we are informed, took a photograph of a Manchester United team poster in Wayne O'Donoghue's bedroom early one evening, not at 7.30 am.

On the issue of dialing 999, it is not clear what significance to attach to that action on the part of an 11 year old boy who suffered from Attention Deficit Hyperactivity Disorder (ADHD).

On the issue of the footwear, according to Wayne O'Donoghue, one of the runners fell off as he (O'Donoghue) was carrying Robert Holohan's body to his car and the other fell off as he was carrying the body to the ditch in west Cork. p