The trial is over and Wayne O'Donoghue is behind bars, but the questions about the killing of young Cork boy Robert Holohan won't go away, writes Barry Roche, Southern Correspondent.
During his summing up in the trial of Wayne O'Donoghue for the murder of his 11-year-old neighbour, Robert Holohan, O'Donoghue's counsel, Blaise O'Carroll SC referred to the State's case against his client as "this dark interpretation of all the data".
O'Carroll was referring to evidence presented during the trial, but this week, after Robert's mother, Majella Holohan dramatically revealed at O'Donoghue's sentence hearing that semen was found on her son's body, an even darker interpretation has emerged.
"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?" asked Majella Holohan, departing from the text of her Victim Impact Statement which was prepared in advance and agreed with the defence. She was addressing O'Donoghue's sentence hearing at the Central Criminal Court sitting in Ennis where he was sentenced to jail for four years this week for Robert's manslaughter in Ballyedmond, Midleton, Co Cork on January 4th, 2005. O'Donoghue had been acquitted of the boy's murder following a 10-day trial at the Central Criminal Court sitting in Cork.
The semen
As reported by The Irish Times on Wednesday, a swab taken of semen found in the closed fist of Robert's left palm was sent for analysis to the Forensic Science Service laboratory at Wetherby in Yorkshire for testing using a new technique called Low Copy Number.
The test, which requires a very small cell sample to provide a match with sample DNA from an arrested person, led expert, Dr Jonathan Whitaker to conclude that the chance of the semen sample coming from anyone other than Wayne O'Donoghue to be one in 70 million.
According to Garda sources, when the Garda later forwarded a semen sample found on the bathroom mat in the O'Donoghue house, Dr Whitaker found it was not identical to the semen sample taken from Robert's hand and he expressed some doubts and amended his first report.
According to O'Donoghue's solicitor, Frank Buttimer, these reports were made available by the State to the defence. They consulted their own forensic experts who disagreed with Dr Whitaker's first report that identified the semen as Wayne O'Donoghue's.
The DPP had to consider that O'Donoghue had said that after accidentally strangling Robert outside his house, he brought him into the bathroom and put him on the mat to revive him, thus allowing for the possibility of the hand sample being contaminated by the mat sample.
The DPP decided not to enter as evidence the DNA report from Dr Whitaker as it was feared it might prejudice the State's case or, as Buttimer put it, the DPP "decided correctly to abandon the introduction of any such evidence". All week, Buttimer has repeatedly stressed there was no evidential connection between the sample and his client. "If there was any evidence whatsoever to suggest anything of that kind, the material would have been introduced by prosecution before the jury," he said.
During O'Donoghue's trial at the Central Criminal Court in Cork, State Pathologist Prof Marie Cassidy said that during her postmortem of Robert, she found "no evidence of a violent sexual assault" on the boy's body.
However, Prof Cassidy was not asked if she found any evidence of non-violent sexual activity on Robert's body and the issue of whether Robert was engaged in sexual activity was not explored.
Aside from the question of the semen found in Robert's palm and where it came from, Majella Holohan raised a number of other perplexing questions, including several which were not laid in evidence during the trial.
The phone calls
Robert's mother asked why O'Donoghue had tried to contact her son at 6am one morning. "Why did a 20-year-old contact an 11-year old at that hour of the morning?" she asked.
The issue of phone times in the case has been the subject of some confusion and dispute and it should be pointed out that the only evidence introduced in the case relating to the time settings on Robert's phone relates to the taking of a picture with the phone of a poster in O'Donoghue's bedroom.
Majella Holohan referred to it on Tuesday and, during the trial, the State produced evidence that Robert took a photograph of the poster in O'Donoghue's bedroom and said that the phone settings showed that the photograph was taken at 7.32am on December 28th, 2004.
But Buttimer said that this was a chronological impossibility as the defence had called evidence at the trial from Geraldine O'Connell from XtraVision in Midleton who confirmed that Robert only bought the phone at 11.15am on December 28th.
However, The Irish Times has learned that Garda technical experts examined the phone and found that its time settings were incorrect by 23 hours and 58 minutes and the time that the picture of the poster was actually taken was 7.30am on December 29th.
This was not given in evidence, but Buttimer said that the defence would have challenged this evidence on the time settings on the phone if it had been called, and the defence's information was that the phone settings related to pm as opposed to am settings - ie it was approximately 12 hours, not 24 hours, out.
The Irish Times has learned that a young friend of Robert's who was present when the picture was taken, told gardaí that it was taken at 7.30pm on December 29th 2004 (ie 36 hours out) but gardaí believe the witness is mistaken and the technical examination time, 7.30am is correct.
A similar dispute relates to the times of the other phonecalls to which Majella Holohan referred in her address in Ennis, namely the attempt which, she said, O'Donoghue made to contact her son at 6am one morning and the 999 call which she said that Robert made.
The Irish Times has learned that the Garda investigation estabished details of two phonecalls made from Wayne O'Donoghue's mobile to Robert's mobile at 5.50am and 7.50am on December 29th, 2004 which were recorded on Robert's mobile.
The morning of December 29th was the morning when Robert was on a sleepover at the home of his friend who was with him when the picture of the poster in O'Donoghue's bedroom was taken. Gardaí say that Robert didn't answer either of these calls at 5.50am and 7.50am.
The Irish Times has also learned that Robert made two 999 calls on his mobile. One was made at 8.29am on December 29th - again later on the morning of the sleepover - while the second was made at 11.22pm on January 3rd - the night before he was killed. All these are adjusted times following the Garda technical examination of the phone.
According to Garda sources, O'Donoghue never made contact with Robert on his two calls, while Robert said nothing in his two 999 calls and so neither set of calls were deemed to be of evidential value and were excluded from the book of evidence by the DPP.
Asked yesterday about these calls, Buttimer said that all relevant material was either put in evidence or available to be put in evidence by the DPP during his client's trial and he did not intend "engaging in a re-run of the case through a trial by media".
The State case
The fact that O'Donoghue admitted manslaughter at the outset seemed to undermine some of the State's case as, at times during the trial, it appeared the prosecution was still seeking to prove what O'Donoghue had already admitted, namely that he had killed Robert.
Unable to proffer any clear motive for the killing, the State ended up relying in the main on the medical evidence of Prof Cassidy as well as the testimony of several witnesses on O'Donoghue's behaviour during the whole tragedy.
In particular, relying on evidence of O'Donoghue's actions after the event to attribute intent to him prior to killing Robert meant the State faced an uphill struggle to convince the jury that he intended to kill or seriously harm Robert when he assaulted him.
The State often ended up hinting at some other explanation of events but for the jury to be satisfied beyond reasonable doubt that this was murder would have required them making a huge leap from what was actually presented before them.
Yet, while the State's version of events was indeed, as O'Donoghue's other counsel, Tim O'Leary SC said, "somewhat vague", O'Donoghue's version of what happened also falls short of providing a full account, though it should be said there was no legal obligation on him to take the stand and give such an account.
Robert's last hour
First among the many questions which remain unanswered on acceptance of O'Donoghue's account of what happened as given in his statements to and interviews with the Garda, is, where was Robert for the last hour of his life, ie between 2.30pm and 3.30pm on January 4th? O'Donoghue said that Robert called to the O'Donoghue home in Ballyedmond at 2.35pm and asked Wayne to take him to McDonalds but he refused, so Robert left but he returned around an hour later at 3.30pm when the row broke out that led to O'Donoghue accidentally strangling the boy.
In the period between 2pm and 2.30pm when he was cycling on his new bike at Ballyedmond, Robert was seen by at least six people - Rosie Harte and Liam Tully at 2pm, Roisin Bell and Michael Daly at 2.15 - 2.20pm, and Mary Daly and his mother Majella at around 2.30pm.
Yet in the period between leaving O'Donoghue's at 2.35pm and returning there at 3.30pm, there was no sighting of Robert or his bicycle in Ballyedmond by anyone, despite gardaí making an appeal for witnesses and receiving a huge response from the public.
O'Donoghue told gardaí that when Robert returned at 3.30pm, he became angry with the boy when he started throwing stones at his Fiat Punto. Yet the court heard from technical expert Det Garda Thomas Carey that he found no stone marks or damage on the car.
The bicycle
After killing Robert, O'Donoghue said that he was in a panic and didn't know what to do and that after putting Robert's body into two plastic bags and into the boot of his car, he picked up his bicycle, placed it in the back seat of the car and drove away from his home.He admitted taking the bicycle from the car and placing it against the ditch at Carrigoghna some 500 yards from his home and yet, while a forensic examination found several sets of fingerprints on the bike, none of them belonged to O'Donoghue.
The refuse bags
O'Donoghue similarly admitted putting Robert's body into two black plastic refuse sacks in a state of panic, but Det Garda Patrick O'Brien only found two sets of fingerprints on a white plastic bag found in one of the black refuse sacks and none on the refuse sacks.
The second journey
Perhaps the most puzzling aspects of O'Donoghue's version of events relate to his account of how, after dumping Robert's body in a glen at Ballintra East near Inch Strand, he returned there that night to recover the body and place it on the beach so it would be found.
Security camera footage from Foley's Garage in Midleton confirmed that O'Donoghue had wished Liam Kelly a Happy New Year there at 7.55pm before, according to his account, he drove the 12 miles (19km) to Inch to try to find Robert's body and place it on the beach.
According to O'Donoghue, he spent some 20 to 25 minutes looking for Robert's body in the briars where he had dumped it, yet he managed to travel the 12 miles back to Midleton and be at his girlfriend, Rebecca Dennehy's house at 8.30pm to watch The Swan on TV3.
Gardaí drove the route in an identical Fiat Punto and, exceeding the speed limit, found that it took them 11.32 minutes to go from Midleton to Inch while the return journey took 11.18 minutes, leaving him with approximately 13 minutes to look for Robert's body.
Burning refuse bags
Just as puzzling is O'Donoghue's contention regarding the burning of plastic refuse sacks which he had used to conceal Robert's body when he put the youngster's body in the boot of his car and later when he threw his body into the briary glen at Ballintra East. O'Donoghue strongly denied intending to burn Robert's body and said he had brought a Coke bottle of petrol with him to burn the plastic bag in which he had brought Robert's body. He lit the plastic only in order to burn it away so he could see where Robert's body had fallen and the plastic only lit for 10 seconds.
Yet, the trial heard evidence from forensic expert, Det Garda Carey that he found charred twigs under Robert's buttocks while there were also burn marks on the hem of his T-shirt and the waistband of his trousers - all some 10 feet from where the burnt plastic was.
The mud stains
A further puzzling question derives from another examination by Det Garda Carey who found mud stains on Robert's clothing which matched neither where Robert was killed outside the O'Donoghue house in Ballyedmond nor where Robert's body was found at Ballintra East. Telecommunications expert Ivan O'Flynn said he had traced Wayne O'Donoghue's route to the beach by the signal from his mobile phone and he found that O'Donoghue had not gone directly to Inch, as he had claimed, but by another route via Rostellan and Upper Aghada.
The injuries
State Pathologist, Prof Marie Cassidy, although agreeing with defence counsel, O'Carroll SC that the account given by Wayne O'Donoghue of how he caught Robert was supported by her autopsy findings, pointed to some injuries which his account failed to explain.
Prof Cassidy was adamant there was definite trauma to the child's mouth as if he had been slapped or had a hand put over his mouth, while bruises to the back and buttocks were not consistent with how O'Donoghue described Robert slumping to the ground around his knees.
Aside from these perplexing matters arising from O'Donoghue's statements, other questions arise. Why for example did the DPP not charge O'Donoghue with concealing the body and withholding information?.
It was noted by Mr Justice Paul Carney in his sentencing of O'Donoghue that the cover-up could have provided "the basis for substantive charges and they were not laid". Gardaí have observed that such charges could easily have been proven beyond reasonable doubt.
Majella and Mark Holohan may have sat through a full murder trial with all the resources that the State can bring to bear, but more than a year on from their son's death, they are still haunted by this dark interpretation of what happened and its many unanswered questions.
Majella Holohan said at the end of her victim impact statement, "Whatever happens here today, even if we move house or leave the country, there is no place to go, no place to hide from this nightmare - it is there every minute of every hour of every day."