‘Is it panic as opposed to the dark interpretation of those events as advanced by the prosecution?’
Mr O’Carroll first turned to the relationship between Wayne O’Donoghue and Robert Holohan before the death of the boy on January 4.
Mr O’Carroll said: “Any reasonable person looking at the relationship between Robert and Wayne in the context of someone saying Wayne intended to kill Robert or cause him serious injury - it just smacks you as completely absurd. It does not have the ring of truth about it.
“What’s a more likely explanation? That something unexpected happened and in the context of that (the defendant) suddenly is transformed into a murderer (who thinks) ‘I’m going to kill him’ or ‘Robert is my brother, I’m going to kill him’ or ‘Robert is my brother and I’m going to seriously injure him’?
“When you look at the other accounts of what the prosecution are saying - was what happened panic, or was it carefully calculated pretence and concealment?
“(The prosecution say) we have this cold, heartless, indifferent human being who has cold-bloodedly killed a young 11-year-old boy.
“Or is it more likely that panic is a proper explanation (of the events after the boy died)? Is it panic as opposed to the dark interpretation of those events as advanced by the prosecution?
“The prosecution has not accepted his plea of guilty to manslaughter. The prosecution is fighting for murder.”
Mr O’Carroll said that the prosecution’s case relies on a dark interpretation of what O’Donoghue did after the death and the prosecution excluded the possibility of panic.
He said in the prosecution’s case: “Everything about this beautiful relationship between Wayne and Robert has to be removed. Panic has to be removed and you have to have this dark interpretation put on everything.
“At the very beginning Wayne was charged with the act of manslaughter.
“I am talking about panic being a better explanation - against a dark explanation.”
Mr O’Carroll said the dark explanation would mean the jury would be looking for ill-will, anger, ire or jealously in the relationship between a perpetrator and victim.
He added: “I invite you to have a look at all the factors in this case in terms of the relationship between Wayne and Robert - and I would submit to you that no matter which way you look at it that there was nothing negative.
“Not only is there nothing negative in the relationship between the O’Donoghue and Holohan family, in the relationship of Wayne and Robert there is also so much that’s positive.”
Addressing the jury about the friendship between the two, Mr O’Carroll said: “If you look at your experience of life, how would you like your son to conduct himself in life? How should he get on with his neighbours?
“How should he react to other human beings and how should he conduct himself where his friends are concerned?
“Should he abandon them as soon as he reaches a certain age or should he have the personality that is able to maintain friendships with people younger than himself like Robert?
“Everybody who has spoken about the relationship - everything about the relationship between Wayne and Robert and the Holohan family and the O’Donoghue family - not only is there nothing negative but it goes beyond that: what we have is a special relationship between Robert and Wayne.”
Mr O’Carroll then referred the jury to the task of putting themselves in Wayne O’Donoghue’s shoes as he comes to the “realisation of the awesomeness of what has happened” and Robert is dead.
He said: “Had it been an ordinary relationship in the past then maybe it might have occurred to him to ring the ambulance or run into the Holohan family or call the guards or to do all things that you might expect in terms of an ordinary relationship.”
Mr O’Carroll referred to the ‘extraordinarily beautiful relationship Wayne had with Robert’ when the accused ‘lost the plot’.
He said: “I would respectfully submit that the very special relationship is an incredibly important factor that you have to weigh up in your mind in terms of the question of panic as opposed to the cold, calculating indifferent murderer that the prosecution are saying.”
Mr O’Carroll said that given such a relationship could there ever have been any intention to kill or cause serious injury?
Later he reminded the jury of the evidence of Northern Ireland State Pathologist Professor Jack Crane who said that Robert could have lost consciousness in seconds when O’Donoghue grabbed the boy in an armlock.
Mr O’Carroll then turned to the post mortem carried out by the State Pathologist Dr Marie Cassidy and how her account independently corroborated his client’s account of what happened on January 4.
The lawyer said: “The injuries to Robert’s body are such that she was later to formulate the conclusion that first there have been an armlock or headlock. The reason for that was the marks of the necklace on the skin.”
Mr O’Carroll then asked the jury if they remembered him asking Dr Cassidy if she had copies of O’Donoghue’s statements to the gardaí.
“She said she had not been given full statements, only excerpts. (I asked her) did you take that into account? And she said: ‘No - I would have given that conclusion to the gardaí immediately after the autopsy that was conducted on January 13.’
“What she is finding out is corroborating the account given by Wayne O’Donoghue to the guards in his own home (three days later on January 16).
“Is there any better way really than the pathologist having formulated that conclusion being able to say ‘That was the conclusion I formed so the account given by Wayne O’Donoghue is in accordance with my findings’?”
Mr O’Carroll then talks about the victim in a case like this being a “silent witness” when examined by the pathologist.
He told the jury: “As that silent witness in the hands of expert professionals he speaks and says: ‘I was caught in an armlock and caught around the throat.’
“This is exactly what Wayne O’Donoghue told the guards too.”
Mr O’Carroll said O’Donoghue had pleaded guilty to manslaughter - but the accused did not intend to kill Robert or cause serious injury.
The application of the armlock (stimulating the vagus nerve in the throat and slowing down the heart) and pinning the boy against the car was with the intention of a reprimand in a most forceful fashion, Mr O’Carroll said.
He said: “It is not something you or I might have done but it seems this is something Wayne O’Donoghue did in these circumstances, but not with any intention of harming, causing serious injury or death.”
Mr O’Carroll said that because of the stimulation of the vagus nerve, the boy then fell, and O’Donoughue was totally shocked and panicked.
He posed the question “How do I go and explain to Majella and Mark (Robert’s parents) what has happened?” and “How do I explain to mum and dad what happened?” and “How can I live with this?”
Mr O’Carroll said that it must have been one of the most extraordinary moments that occurred in Ireland in 2005.
He said the evidence from Dr Cassidy and Professor Crane about the vagus nerve being stimulated and the slowing of the heart all backed the defence’s case and went against the prosecution’s.
Mr O’Carroll then said that the only criticism the accused made of Robert was that the boy was hyper. He added: “In every other way that relationship was perfect.”
He then described Robert as having Attention-Deficit Hyperactivity Disorder (ADHD) and talked about the Ritalin tablets he took in school time to control the condition. He also had Oppositional Defiant Disorder.
Mr O’Carroll then told the jury how Robert had called at to see Wayne O’Donoghue and asked to be taken for a milkshake. When the request was refused, the boy started throwing stones at O’Donoghue’s car.
Mr O’Carroll said: “Had Robert been on his Ritalin he might have been more calm and not persistent and not throwing stones.
“Wayne might have been in better form - as you know yourself in terms of relationships very little can tip the balance one way or another.
“Wayne was working on a speech for college and he had told Robert he was in no position to take him into town (to McDonald’s for a chocolate milkshake) - in a sense where Wayne has been wonderful where Robert is concerned and able to cope with him in the main, he was not when the stones were thrown - ‘I just lost the plot and I just struck out’.”
Mr O’Carroll then told the jury of the events of January 16 when O’Donoghue confessed to his father about what had happened.
Mr O’Carroll: “You recall... he is walking in the hallway at home thinking ‘Will I? Won’t I?’ and he goes into the bedroom of his dad and tells his dad what had happened and for the first time being able to unburden himself.
“It’s not a question of ‘We’ve got to get a lawyer and think of the best way to deal with it’ or arrange to get Wayne out the country or protect him in any way.
“Almost immediately Ray O’Donoghue (Wayne’s father) is ringing Detective Garda Michael O’Sullivan and saying ‘You have got to come up here’.”
Mr Carroll said that position was at the front of the mind of Wayne O’Donoghue as well.
BOC: The first reaction of Ray O’Donoghue was to make contact with An Garda Síochána and then lawyers came in subsequently.
Mr O’Carroll said Mr Ray Donoghue later personally went round to see the Holohans to tell them face-to-face what had happened and that his son was involved in the death of Robert.
Mr O’Carroll said that on January 4 the fear that had overwhelmed Wayne O’Donoghue meant he was unable to call out for help.
He said: “There were the most awful days (for the Holohans) when the search went on. If there was any consolation then at least they can say that society was not completely indifferent and people came from every quarter and gave every assistance they could.”
Mr O’Carroll said the garda investigation was thorough and that the jury could be sure all the evidence had been put before them in the case.
Mr O’Carroll said O’Donoghue’s relationship with his girlfriend Rebecca Dennehy was strong and close. He reminded them that she said in evidence that after January 4 she and Wayne were not as “touchy-feely” as they had been before.
Mr O’Carroll said the jury needed to bear in mind what she said about the strength of the relationship when they came to consider what the prosecution said was Wayne O’Donoghue’s “cold, calm and calculating manner.”
By this stage in the trial it was around 2.45pm Mr O’Carroll had been on his feet for two hours and the court was adjourned until 4pm so the jurors could have a break.
When the court resumed, Mr O’Carroll then reminded the jury that the evidence of Dr Marie Cassidy backed the account given by his client of what happened on January 4.
Mr O’Carroll said that O’Donoghue had not sought to conceal the body - whereas someone who was calculated would have acted differently.
He told the court: “What we would expect in those circumstances is that instead of throwing the body over a hedge that greater effort would have been taken to find a more concealed spot or he would have gone as far as to bury the remains to make sure they would never be discovered.
“Where the body is placed is consistent with the plan to put the body on the beach (later on) but there is no concealment.”
Mr O’Carroll then returned to the evidence of the pathologists in the case and the fact that Dr Cassidy said the pressure placed on Robert’s neck was of a sufficient force and duration.
He said the court had heard that the mechanism of death was complicated and in strangulation cases involved the airways, blood vessels and the vagus nerve.
Mr O’Carroll said that Professor Crane had said that the pressure applied to the boy’s neck was not excessive and was not maintained for any length of time.
Mr Carroll then sat down and the judge, Mr Justice Paul Carney, then began his address to the jury, who were expected to be sent out today to consider their verdict.
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