O'Connell v Director of Public Prosecutions (No 3)

[2025] ACTCA 36

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

O’Connell v DPP (No 3)

Citation: 

[2025] ACTCA 36

Hearing Date: 

25 August 2025

Decision Date: 

25 August 2025

Before:

McCallum CJ

Decision: 

Bail is refused.

Catchwords: 

CRIMINAL LAW – BAIL – where Court of Appeal set aside verdict of guilty of murder – where Court reserved question of whether “another verdict” should be entered – whether special and exceptional circumstances exist favouring the grant of bail

Legislation Cited: 

Bail Act 1992 (ACT), Div 2.4, ss 9B, 9D, 9E, 22

Crimes Act 1900 (ACT), s 297

Cases Cited: 

DPP v O’Connell (No 5) [2024] ACTSC 17

O’Connell v DPP [2025] ACTCA 20

Parties: 

Michael O’Connell ( Appellant)

Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

J White SC ( Appellant)

K McCann ( Respondent)

Solicitors

Legal Aid ACT ( Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 21 of 2023

Decision Under Appeal: 

Court:  ACT Supreme Court

Before:   Baker J

Date of Decision:       15 June 2023

Case Title:                 DPP v O’Connell

Court File Number:     SCC 251 of 2022

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․Michael O'Connell was convicted of murder after a trial with a jury and subsequently sentenced by Baker J: DPP v O’Connell (No 5) [2024] ACTSC 17. On 27 June 2025, by majority, the Court of Appeal allowed his appeal against that conviction, set aside the jury’s verdict and the sentence imposed and entered a verdict of not guilty of murder: O’Connell v DPP [2025] ACTCA 20. When those orders were pronounced, the Court reserved the question of whether another verdict should be entered in circumstances where manslaughter had been left to the jury as a statutory alternative.

2․Mr O'Connell now seeks bail in the unusual circumstances I have described. None of the sections in Div 2.4 of the Bail Act 1992 (ACT) exactly fits his circumstances. However, it is convenient, and in my view appropriate, to proceed on the basis that it is an application for bail pending appeal, the Court of Appeal still being reserved on three questions. Those questions are:

(a)whether s 297 of the Crimes Act 1900 (ACT) prevents any further verdict being entered against Mr O'Connell;

(b)whether the Court of Appeal should substitute a verdict of manslaughter for the verdict of murder; and, if not

(c)whether the proceedings should be remitted to the Supreme Court for a new trial for manslaughter.

3․I note in that context that, after delivery of the decision of the Court of Appeal on 27 June 2025, the matter came before me on 30 June 2025 for directions on the reserved questions before the Court of Appeal.  On that occasion, it was conceded on behalf of the applicant that, until the reserved question was decided, the indictment is not acquitted.  On that understanding, Mr O'Connell remains remanded in custody before this Court.

4․Separately, I note that, after those events, the applicant was sentenced by the ACT Magistrates Court in relation to summary matters, being further family violence offences concerning a different complainant.  He was convicted and sentenced to imprisonment for 12 months, commencing on 15 April 2022 and expiring on 14 April 2023.  The commencement date of that sentence, 15 April 2022, is the date on which the appellant was taken into custody for the charges tried before Baker J.  Accordingly, he is to be taken to have been in custody for those matters alone since 15 April 2023.  According to the Crown Prosecutor, that gives a calculation of some 863 days on remand referable to these matters alone.  That is a period of some two years and four months.

5․An application for bail pending appeal is governed by s 9E of the Bail Act.  On the assumption that that is the appropriate section to be applied, the Court must not grant bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail. 

6․Mr White SC, who appears for the applicant on the present application, relies on a combination of matters to satisfy that requirement.  The first is the curious circumstances I have described, wherein the applicant finds himself effectively on remand for a charge of manslaughter, his murder conviction and sentence having been quashed and set aside and a verdict of not guilty of murder having been entered.  Secondly, Mr White points to the delay since the jury’s verdict, the lengthy period during which the Court of Appeal was reserved on its substantive decision and the fact that, at least since the orders of the Court of Appeal quashing the sentence on 27 June 2025, two months have passed without resolution of the difficult consequential issues that have arisen. 

7․The Crown Prosecutor fairly noted that s 9D of the Bail Act does not apply because, although Mr O'Connell was alleged to have committed the offences that gave rise to the charge of murder in this Court whilst other charges against him were pending in relation to the other family violence matter, those were not serious offences within the meaning of the section. However, because he remains effectively subject to an indictment not yet acquitted for manslaughter, s 9B does apply to remove the presumption for bail.

8․In all the circumstances, the appropriate approach is, first, to recall that there is no presumption for bail; secondly, to consider whether special or exceptional circumstances are established; and, thirdly, to consider the matters in s 22 of the Bail Act.

9․I am satisfied that special and exceptional circumstances are established by reason of the unusual combination of legal events I have described and the delay that has transpired since Mr O'Connell’s trial. 

10․However, it remains necessary to consider the matters in s 22, particularly the risk of committing an offence if granted bail, but also the matters listed in s 22(3), which permit the Court to have regard to the nature and seriousness of the offence, the person’s background, character and community ties, and other matters that do not arise in this application, and the strength of the evidence against the person.

11․It is difficult to assess those matters in light of the split decision of the Court of Appeal on the murder conviction. Assuming s 9E applies, I am sitting in the present application as a single judge of appeal determining a question of appeal bail. If that is wrong, I am sitting determining what is in effect a bail application for a person on remand for a charge of manslaughter. Either way, my own assessment of the evidence is that the nature of the alleged offence is serious and that the evidence against Mr O'Connell is strong.

12․Furthermore, as fairly conceded by Mr White SC on behalf of Mr O'Connell, although the applicant has now spent a period of some two years and four months on remand for the present sentence, and notwithstanding factors that might push the sentence downwards, it cannot be said with any great conviction that the applicant is yet in the category of a person who is at risk of spending more time in custody for the offence for which he is on remand than might be imposed as a sentence if he is found guilty of that offence. 

13․In all the circumstances, I consider that there are risks, if he is released on bail pending the resolution of the Court of Appeal’s outstanding questions, particularly having regard to his immediate criminal history before his arrest for the matters which were tried by Baker J.  First, his record at that time included a conviction in 2021 for using a carriage service to menace, harass or offend a person (which I was told related to the same complainant as the charges dealt with recently by the Magistrates Court).  Secondly, the offences for which sentences were imposed by the Magistrates Court following the decision of the Court of Appeal, being offences of stalking, were evidently of sufficient seriousness to warrant a term of imprisonment for 12 months.  Thirdly, there is the fact that the alleged offences in respect of the deceased were committed whilst the applicant was on bail for those matters.  And fourthly, there is the fact that no fewer than two of the applicant’s recent female partners have been the victims of such offences. 

14․I do note that the applicant now has a new partner since April 2025 who is prepared to have him reside with her.  However, there are plainly risks if he is released on bail.  More importantly, as submitted by the Crown, I consider the appropriate course at this point, having regard to the strength of the case against the applicant, is to await the determination of the Court of Appeal’s decision in respect of the manslaughter charge.  Accordingly, bail is refused. 

15․I note, however, that, in the event that the Court of Appeal determines that the matter must be remitted for retrial on the manslaughter charge, the circumstances will be very different.  I know from my own personal knowledge of the listings of the Court that a trial for manslaughter will not be able to be heard by the Court until next year.  That would present a very different set of circumstances for any application for bail because, in that instance, the period of delay would have greater weight than the other matters to which I have referred. 

Orders

16․The order of the Court is that bail is refused. 

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: