After George Gonzaga Bento was arraigned, his defence counsel Padraig Dwyer SC made an application in the absence of the jury.

Mr Dwyer said that his client should never have been charged with murder as the "evidential basis" was not there. Instead, he argued that Mr Bento should have been charged with manslaughter, as it was the central issue in the case, and he noted other individuals had been charged with diverse offences such as assault and criminal damage arising from the incident.

He told Mr Justice Paul Burns that his team had written to the Director of Public Prosecutions asking them to review the charge.

Mr Bento was found not guilty today of the murder of 16-year-old Josh Dunne at East Wall Road in Dublin last year.

Mr Dwyer also said that CCTV evidence showed other individuals attacking George and his companion and showed that at all times George was engaged in self defence, the defence of another person and the defence of property. He said the use of force by his client had been reasonable.

It was unfair and oppressive to put his client on trial for murder, Mr Dwyer argued, and he asked the court to substitute the charge of murder for one of manslaughter.

Mr Dwyer also asked the judge to "keep an eye on" the evidence as the case proceeded. "Judge, if you perceive the accused is receiving an unfair trial, then you have a duty to stop it," he said.

He said George's position was that he did not believe he was guilty of either murder or manslaughter and that this was a full acquittal defence against a background where Deliveroo cyclists were under a lot of harassment in Dublin.

In reply, prosecution counsel Sean Guerin SC said the fact that other people were charged did not change the accused's circumstances, as the basis on which the charges were proffered was the CCTV footage and eye witness accounts.

In addition, Mr Guerin said, this was a case where an unarmed 16-year-old received two stab wounds to the chest, one of which was fatal. There was no question but that murder was the appropriate charge, he stated.

Josh Dunne
Josh Dunne was 16 when he died (Photo: Bohemian Football Club)

In his ruling, Mr Justice Burns said it was the defence case that it was unfair to leave the count of murder to the jury. He said it was their contention that there would be a manifest and real risk of a wrongful conviction if a murder charge was left open to the jurors.

The defence had impressed on the court that it was under an obligation to stop the trial where there was a real and manifest risk of injustice, he said.

The judge said the prosecution took issue with the defence submissions and had argued that the count of murder should be left to the jury in its entirety. He noted it was the State's case that the accused was quick to make use of the knife when he might have known it was not necessary and proportionate and that they argued the accused had knowledge of guilt after the incident.

During the trial, the State would argue that flights to Brazil were booked for Mr Bento on 28 January 2021, two days after the death of Josh Dunne. The prosecution argued Mr Bento intended to leave the jurisdiction in the belief that gardaí might have identified him as a suspect and in the knowledge that someone had died and that he had a small window to get out of Ireland.

Prosecutors also put it to Mr Bento that he had deleted his WhatsApp on his phone as he was aware of the death of Josh before he booked his flights to Brazil, that he knew messages showed that he had persuaded follow delivery driver Tiago da Silva not to go to gardaí and that he knew messages showed he had avoided going to detectives.

Mr Bento denied he was aware of the schoolboy's death before booking flights home to Brazil and disagreed with all of the State's propositions.

In legal argument, Mr Guerin said the garda investigation would have been deprived of three pieces of evidence but for the technology that allowed them to retrieve messages when Mr Bento deleted his WhatsApp.

Ruling on the defence's application to remove the count of murder, Mr Justice Burns ruled that the court would not usurp the function of the jury and that it seemed to him there was sufficient evidence to allow that count to go to the jury.