Defence Counsel for Alan Vial, Shane Costello SC made his closing arguments before the Central Criminal Court this afternoon.
Vial 39, of Drumanoo Head, Killybegs, County Donegal stands accused of the murder of 66-year-old Robert, ‘Robin’ Wilkin in June 2023. His co-accused, and partner at the time, Nikita Burns 23, from An Charraig, County Donegal also stands accused of the murder of Wilkin, a charge that both deny.
Wilkin was killed after he, Burns and Vial went out drinking on the evening of 25 June 2023.
Wilkin’s body was found in the sea after it was rolled over a cliff. The court heard evidence that the victim had sustained two fractures to the back of his skull before he died.
Addressing the jury, Costello advised that the burden of proof in criminal trials lies with the prosecution and that his client was coming to court as an innocent man unless and until he was proven guilty.
He asked the jury to consider whether his client’s version of events where he said it was Burns and not himself that delivered the fatal blows could be reasonably possible.
“If you believe it is then you can’t convict him of murder,” he said.
Costello reflected on the evidence of State pathologist, Dr.Margaret Bolster said she had “refused to speculate” in regards to the evidence of other injuries on Wilkin’s body, confirming that two pre-mortem blows to the head had contributed to his death.
He said that it was not possible that Vial – who it is accepted had an altercation with Wilkin in the car the trio had been travelling in on the night of the murder – could have gone off to pick up a rock with which to hit him on the head while embroiled in a fight.
He argued that the only logical conclusion was that Burns had picked up the rock – which the court heard was at a distance that it would take 30-40 seconds to retrieve – and that she had delivered the blows to Wilkin.
He said that Wilkin had wanted Burns and Vial out of the car and there was no way that he would have waited for Vial to come back and hit him with a rock.
“Only two people know what happened that night,” he said, adding, “everyone else is ultimately stating their opinion,”
“Third person who knows is dead,” he added.
Costello said that only one of the people who knows exactly what happened “got into the witness box” and that this was his client, who he said was not obligated to do so.
He noted that Burns had not given evidence in court.
“Mr. Vial has given you sworn testimony,” he said, instructing the jury to “treat it with respect.”
He reminded them that they cannot use evidence from the statements of Nikita Burns against Vial nor could information from her recorded phone call or text messages where she denied killing Wilkin be used against him.
“You may not consider the content of that call,” he said.
He argued that there was “no direct evidence” to suggest that Vial had hit Wilkin with a rock.
“My client under oath said he didn’t do that,” he said, adding that the prosecution’s case relied upon the conduct of Vial before and after the incident in reference to his numerous previous convictions and admissions of having lied to Gardaí.
He argued that while Bernard Condon SC, for the Director of Public Prosecutions said that cleaning of the car and walking into water to destroy evidence were “all indicative of a guilty mind”, that this was rather indicative of someone who has just participated in the cover up of a crime.
He said that Vial’s actions were indicative of him trying “to extricate himself” from the situation.
“Even if you don’t believe me, are you sure beyond reasonable doubt that that’s not reasonably possible?” he asked the jury.
He asked the jury where the evidence was that Vial had entered into an agreement to kill or cause serious injury to the victim.
He said that there was no evidence that his client had been in “cahoots” with Burns to murder Wilkin.
He said that there was also no evidence that Vial would have suspected or known that Wilkin may have been still alive when he was thrown over the cliff.
He said that in an intoxicated state it was unreasonable to assume that Vial would have been able to accurately assess this, pointing to the forensic evidence which said that it was most likely that Wilkin had died between 15 to 20 minutes after receiving the blows to the back of his head.
He argued that by the time Wilkin would have been brought to the top of the mountain from which he was thrown – which he calculated to be between 37 and 40 mins -he would have already passed away from his injuries, pointing to the large amount of blood found in the car.
Regarding Vial having lied to Gardaí, he said that just because there was an admission of this it could not be taken as a means of dismissing his client’s sworn testimony as also lies.
He described Vial as “not a pretty picture” saying that the jury had seen the “warts and all human being that my client is”.
He described him as a “middle aged”, “alcoholic” and “a petty criminal” who had stolen his father’s truck.
Costello said that Vial had lied to Gardaí because he “had feelings” for Burns who had come into his life and in a matter of weeks had gone from sharing his money, to living with him, to sharing his bed with him.
He said that Vial was “over the moon” to have the young woman in his life and wanted to protect her.
“She’s allowed to have feelings from him, but he’s not allowed to have feelings for her,” he said referring to how feelings for her co-accused had been used by her defence counsel as a means of explaining why she had initially made admissions to killing Wilkin.
He said that his client has a “litany” of road traffic offences because he is an alcoholic, and although he had “desecrated” the body of Wilkin, this did not mean he is a murderer.
He described the lies Vial had told as “sad” and “pathetic” lies designed to keep Burns “out of trouble”, but that “just because he lied does not make him a murderer.”
He said that while the prosecution maintained that Wilkin had been dragged out of the car before being hit with the rock, it was his position that the killing had taken place inside the vehicle.
He said that when the killing had taken place “Pip the dog” had been in the car and that material recovered from a hoover used to clean the car after the murder that had been speculated to be brain matter could h=in fact have been food left for the dog while Wilkin, Burns, and Vial had gone drinking on the night of the murder.
He said that the blood had “co-mingled” with the dog food.
He said that Garda evidence had suggested that the assailant had attacked Wilkin from the front passenger door side, but that his client had been sitting in the back of the vehicle.
“Nikita Burns is the woman with the rock,” he said, adding that Vial was “guilty of being an idiot”, but “not guilty of murder”.
He said that while Burns had admitted only to cleaning the car after Wilkin’s death, that it was his position that Vial alone could not have moved the 90 kilo body of Wilkin over a fence around the cliff from where he was thrown into the sea, and that she must have aided him in this endeavor.
The case continues before Mr. Justice Paul McDermott tomorrow at 11am.