Wayne O'Donoghue has been sentenced to four years in jail for the manslaughter of his neighbour and friend, 11-year-old Robert Holohan, writes Barry Roche, Southern Correspondent, in Ennis
O'Donoghue (21), from Ballyedmond, Midleton, Co Cork who was acquitted of the boy's murder, has already spent a year in custody and is expected to be released within two years.
Mr Justice Paul Carney, in sentencing O'Donoghue yesterday, said he believed the injuries suffered by Robert were "at the horseplay end of the scale", although he strongly criticised him for dumping Robert's body and covering up his crime. He said he took into account that O'Donoghue had pleaded guilty to manslaughter.
During the hearing, Robert's mother, Majella, said semen had been found on Robert's body and she asked what her son was doing in O'Donoghue's bedroom at 7.30am on December 29th, 2004, when he was supposed to be at a sleep-over elsewhere.
"Our doctors have told us to try and get on with our lives but how can we, knowing that there was semen found on my son's body?" she asked in her victim impact statement.
The Irish Times has learned that the semen, which was initially matched to Wayne O'Donoghue, was not introduced by the DPP after the scientist who carried out the tests expressed some doubts after testing a second sample.
The first sample was taken from the palm of Robert's left hand by State Pathologist Dr Marie Cassidy at postmortem and, along with other samples from Robert's body, was given priority by the gardaí and sent to Britain for analysis.
A team under Dr Jonathan Whitaker at the Forensic Science Service laboratory at Wetherby, Yorkshire, tested the sample using a new DNA-testing technique called low copy number (LCN), which allows matches to be found from very few sample cells.
Dr Whitaker tested the swab taken from Robert's palm and compared it with a DNA sample taken from O'Donoghue when he was arrested by gardaí on January 16th, 2005.
Dr Whitaker concluded the likelihood of the semen sample coming from anyone else but O'Donoghue was one in 70 million and, on foot of his report in the spring, the DPP directed that O'Donoghue be charged with Robert's murder.
However, gardaí had also taken a number of items from O'Donoghue's house, including a mat from the bathroom where he said he had lain Robert, as he tried to revive him after strangling him outside the house on January 4th.
Samples of material taken from this bathroom mat were later sent to Wetherby where Dr Whitaker again carried out DNA LCN testing and concluded it also contained semen which was not identical to the semen from Robert's hand.
This second sample led him to express some doubts about his first analysis and he revised his report, declining to give a statistical likelihood of the first sample belonging to anyone else but O'Donoghue.
Upon receipt of Dr Whitaker's second amended report on the semen found on Robert's hand, the DPP decided it would be unsafe to introduce the sample as evidence as it was not sufficiently certain and could prejudice the State's case.
While interviewing O'Donoghue following his arrest, detectives asked him what he would say if it turned out semen was found on Robert's body and he replied he was sure they would not find his semen on the body. Later in the course of a conversation with an officer during a remand hearing in Midleton, O'Donoghue was asked how could his semen have ended up on Robert. He replied that he must have picked it up from a towel.
In sentencing O'Donoghue, Mr Justice Carney stressed that he was basing his decision solely on the evidence opened before him during O'Donoghue's trial at the Central Criminal Court sitting in December in Cork and on nothing else.
Questioned after yesterday's sentencing about the semen allegation, O'Donoghue's solicitor Frank Buttimer said his client "denies any impropriety of any kind whatsoever with regard to that".
Asked if it was O'Donoghue's semen that was found on Robert's body, Mr Buttimer said "any implication of that type is flatly denied" and he insisted "all relevant evidence was led by the prosecution in this trial".
Mr Buttimer said his client would not be appealing the sentence, while Mark and Majella Holohan appealed for privacy, thanking all those who helped in the search and "brought our little boy back to us".