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[2025] ACTCA 21
procedural. The DPP was directed to file and serve written submissions by close of business on 2 July 2025. The appellant was directed to file and serve submissions in reply by close of business on 3 July...
1 cited instrument linked from this judgment.
The judgment did not finally decide whether O’Connell could still face a manslaughter verdict or trial after his murder conviction was quashed. McCallum CJ identified a possible reading of the statutory bar on later prosecution and possible appeal-court routes for dealing with manslaughter, but left those questions open. Because one possible outcome could end the remand and affect custody, the Court ordered the parties to make submissions quickly and reserved its decision.
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1,815 words · generated 06/10/2026
O’Connell v DPP (No 2) is a short set of ex tempore reasons about what was to happen after the Court of Appeal had allowed O’Connell’s murder appeal. It does not contain the Court’s final decision on whether the manslaughter alternative could still be determined, nor a final ruling on O’Connell’s custodial status.
At his trial, the jury was asked to consider murder, with manslaughter left as a statutory alternative. The jury found O’Connell guilty of murder, so it returned no verdict on manslaughter [1]. O’Connell appealed. The majority of the Court of Appeal allowed his appeal, set aside the murder verdict and entered a verdict of not guilty of murder [1]. McCallum CJ states that she dissented from that majority decision [2].
That result raised a separate issue: whether the Court could still deal with the manslaughter alternative, and what would happen to the existing remand or bail arrangements while that issue remained unresolved. McCallum CJ initially questioned whether the Court had authority to detain O’Connell after the majority’s orders. Her concern was informed by s 297 of the Crimes Act 1900 (ACT) [2].
The judgment records three possible courses outlined by the prosecutor. The Court might substitute a manslaughter verdict and remit the matter for re-sentencing. It might order a retrial on manslaughter. Alternatively, it might conclude that it could not order a retrial and that the indictment had been fully determined. On that third possibility, the remand would be discharged, subject to another lawful basis for detention [5].
McCallum CJ did not choose among those alternatives. Instead, because the third could affect whether O’Connell remained in custody, she ordered an expedited exchange of submissions: the DPP’s submissions by close of business on 2 July 2025, and O’Connell’s reply by close of business on 3 July 2025 [6]. The Court reserved its decision on the question.
The immediate decision was procedural: to set a short timetable for submissions. The stated reason was urgency arising from the possible consequences for custody. McCallum CJ explained that the existence of a possible outcome in which the remand would be discharged indicated the need for expedition [6].
The central legal uncertainty concerned the interpretation of s 297. As reproduced in the reasons, it provides that a person tried for an offence with a statutory alternative cannot be prosecuted on the same facts for that other offence [2]. McCallum CJ first considered whether this meant O’Connell could not face the manslaughter alternative after the murder verdict was set aside. Following further reflection, she considered another construction “at least arguable” [3].
On that possible construction, s 297 is aimed at protecting an accused from being tried again on the same facts for an alternative offence that the original jury did not consider. McCallum CJ reasoned that this interpretation might not bar the appeal court from itself considering manslaughter, or from remitting the matter for a second trial on that alternative [3]. This was identified as an open reading, not adopted as a final construction.
The reasons also record that O’Connell’s counsel accepted that the matter was properly before the Court that morning, that McCallum CJ could exercise the powers of a single judge of the appeal court under s 37J of the Supreme Court Act 1933 (ACT), and that the construction of s 297 just outlined was open for consideration [4]. Counsel also accepted the need for expedition given the real question about O’Connell’s ongoing custodial status [4].
The judgment refers to s 37O of the Supreme Court Act as potentially relevant to the Court entering “another verdict” [3]. It does not reproduce that section’s text, explain the full scope of the power, or determine whether it would authorise a manslaughter verdict in these circumstances. The possibility of a retrial is likewise recorded but not ruled upon. The reasons therefore explain why the issue required submissions, not how it would ultimately be resolved.
The judgment does not set out a settled before-and-after change in the law. It is not a final ruling on the meaning of s 297 or on the appeal court’s powers under ss 37J or 37O of the Supreme Court Act. Its principal legal contribution in this document is to identify questions that required argument.
Before the reasons were given, the jury had returned a murder verdict and no manslaughter verdict. The majority then set aside the murder verdict and entered a not-guilty verdict on murder [1]. As a result, the Court had to address the consequences of that appellate disposition for the statutory alternative and for custody.
The possible interpretation of s 297 described at [3] should not be treated as a binding holding. McCallum CJ characterises it as “at least arguable” and “a possible and open reading”. The Court invited submissions on the question rather than resolving it. Similarly, the judgment’s references to entering another verdict or ordering a retrial are identified as possibilities, not determinations of legal power or its application.
The immediate change made by the decision was to the procedural timetable. The DPP had to file and serve submissions by 2 July 2025, and the appellant had to reply by 3 July 2025 [6]. The Court then intended to determine the reserved question, with urgency noted. This judgment itself does not record that later determination.
At [2], the judgment reproduces s 297: “No person tried for an offence, in any case where under this Act he or she may be acquitted of the offence but be found guilty of some other offence, shall be liable to prosecution on the same facts for the other offence.” In plain English, the provision bars a later prosecution on the same facts for the statutory alternative in the situation described by the section. The judgment’s unresolved issue was how that bar applies where the jury did not return a verdict on the alternative and the murder conviction was later quashed.
At [3], McCallum CJ describes the possible protective purpose of the section: protecting an accused from a later prosecution for an alternative offence that the first jury did not consider. In plain English, this reading would distinguish a later prosecution from a decision by the appeal court to deal with the alternative as part of the existing proceedings. The reasons do not decide whether that distinction is correct.
At [3], McCallum CJ says that, on this possible reading, s 297 “would not preclude” either the Court entering another verdict under s 37O or remitting the matter for a second trial on manslaughter. In plain English, if the proposed interpretation were accepted, the statutory bar might not itself prevent either route. The phrase is conditional on an interpretation that remained open.
At [5], the judgment records the possible consequence of the third option: if the Court could not order a retrial and considered the indictment fully determined, “the Supreme Court remand will be discharged”. The reasons qualify this by noting that another lawful reason for detention could still apply. In plain English, the possible release consequence depended on the Court’s eventual conclusion and was not itself ordered in these reasons.
At [6], McCallum CJ explains that the third possibility “indicates the need for expedition”. In plain English, because the unresolved legal question could affect custody, the Court required submissions within days and reserved its decision.
The judgment is most directly relevant to a procedural pattern with these features: an accused is tried for an offence; legislation provides a statutory alternative; the jury convicts on the principal offence without returning a verdict on the alternative; the principal conviction is subsequently set aside on appeal; and the appeal court must consider whether it can still determine the alternative or remit the case for a further trial.
The custodial dimension matters in this case because the Court’s choice among the possible procedures could affect whether the existing remand remained in place or was discharged [5]. The reasons link that practical consequence to the need for expedition [6].
The decision should be used cautiously outside that setting. It does not decide the application of s 297 to every statutory alternative, nor establish that an appeal court may always substitute an alternative verdict or direct a retrial. The judgment records those as questions for submissions. Differences in the relevant statutory wording, the trial verdicts, the appeal orders, or the source of any custody authority could matter, but this judgment does not analyse those variations.
The supplied judgment contains no discussion of later judicial treatment, and it does not cite any other case. It is dated 30 June 2025 and records that the Court had reserved the substantive question after ordering submissions [6]. The text provided therefore does not establish whether a later decision in this proceeding or another court subsequently accepted, rejected, or qualified the possible construction of s 297.
For legal research purposes, it is important to distinguish this document from a final appellate ruling on the reserved issue. The Court’s majority had already set aside the murder verdict and entered a not-guilty verdict on murder [1]. But these reasons concern the next procedural step and the questions that remained to be decided. The tentative interpretation at [3] should not be described as a concluded holding based on this judgment alone.
The primary open question is the proper construction of s 297 in circumstances where the jury did not consider the statutory alternative and the principal conviction was later quashed. The Court identified one possible interpretation but expressly left it for argument [3].
A second question is whether the Court could enter another verdict under s 37O of the Supreme Court Act. The reasons refer to that possibility but do not reproduce the statutory provision or decide whether it applied to these facts [3].
A third question is whether the matter could be remitted for a second trial on manslaughter if the Court did not substitute a verdict, or lacked power to do so. The prosecutor’s outline described that as a possible course, but the Court did not decide whether it was legally available [5].
Finally, the consequences for custody depended on how the Court answered those questions. The judgment records that the remand or bail undertaking might remain if a manslaughter verdict or retrial route were pursued; if the indictment were considered fully determined and no retrial could be ordered, the remand would be discharged unless another lawful basis for detention existed [5]. The decision about which scenario applied was reserved, so this document does not establish O’Connell’s ultimate custodial status.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: O’Connell v DPP (No 2) Citation: [2025] ACTCA 21 Hearing Date: 30 June 2025 Decision Date: 30 June 2025 Before: McCallum CJ Decision: (1) That the DPP file and serve written submissions on those questions I have outlined by COB Wednesday, 2 July 2025. (2) That the appellant file and serve written submissions in reply by COB on Thursday, 3 July 2025. (3) That the Court’s decision on the reserved question will then be reserved, noting the urgency to which I have referred. Catchwords: APPEAL – CRIMINAL LAW – where jury found appellant guilty of murder – where appellate court quashed conviction – consideration of appellant’s custodial status Legislation Cited: Crimes Act 1900 (ACT), s 297 Supreme Court Act 1933 (ACT), ss 37J, 37O Parties: Michael O’Connell (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel K Weston-Scheuber (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)
The appellant was tried by jury for murder. A statutory alternative of manslaughter was left to the jury. The jury found the appellant guilty of murder and, accordingly, no verdict was taken on the statutory alternative. He appealed against his conviction. Last Friday the Court, by majority, allowed the appeal, set aside the verdict of guilty for murder and entered a verdict of not guilty of murder.
The question then arose as to his custodial status. I was initially concerned as to whether this Court had authority to detain him in circumstances where, as a result of the judgment of the majority (from which I dissented), the orders made effectively precluded the possibility of an alternative verdict being entered. My thinking on that issue was informed by my initial reading of s 297 of the Crimes Act 1900 (ACT), which provides: 297 After trial for offence, if alternative verdict possible, no further prosecution No person tried for an offence, in any case where under this Act he or she may be acquitted of the offence but be found guilty of some other offence, shall be liable to prosecution on the same facts for the other offence.
On my initial reading of that section, I apprehended that, because there was a statutory alternative of manslaughter, Mr O’Connell was not liable to be prosecuted on the same facts for that statutory alternative. Upon deeper reflection over the weekend, I consider it is at least arguable that the purpose of the section is to protect an accused person from the double jeopardy of being prosecuted for an offence which has a statutory alternative but not having the jury consider that statutory alternative and then finding him or herself prosecuted for the statutory alternative on the same facts at a later time. That is a possible and open reading of the provision. On that reading, it would not preclude a course which would render the appellant now liable to have the statutory alternative considered, either by this Court entering “another verdict” within the meaning of s 37O of the Supreme Court Act 1933 (ACT), or by this Court remitting the matter for a second trial on the manslaughter statutory alternative count.
In any event, Ms Weston-Scheuber, who appears for the appellant, has helpfully this morning indicated her acceptance of several important propositions. First, she accepts that the matter is properly before the Court this morning and that I can properly exercise the powers of a single judge of the appeal court under s 37J of the Supreme Court Act. Secondly, Ms Weston-Scheuber accepts that, for the purposes of consideration of the appellant’s custodial status, the construction I have just outlined is open. Thirdly, that in the circumstances, since there is a real question about the appellant’s ongoing custodial status, any timetable should be expedited so as to obviate the need for an appeal bail application proper to be brought and determined. Indeed, the timetable proposed by Ms Weston-Scheuber would see submissions close before the end of this week so that the Court would then be in a position to determine what course it should take in determining the balance of the appeal.
The prosecutor helpfully provided a document which outlines three possibilities in that context: a) if the Court concludes that it can substitute a verdict and does so, then the remand warrant (or bail undertaking) remains, and this Court may remit the matter for re-sentencing for the offence of manslaughter; b) if the Court concludes either that it can substitute a verdict but declines to do so, or that it has no power to substitute a verdict, the Court may order a re-trial on the offence of manslaughter. In those circumstances the Supreme Court remand (or bail undertaking) would remain; c) if the Court concludes that it cannot order a re-trial or otherwise concludes that the indictment has been fully determined, once that order is made, the Supreme Court remand will be discharged. Subject to any other lawful reason for retaining the appellant in custody, in that event he would be entitled to be released (or, if he had been admitted to bail previously, to be released from that undertaking).
That outline of the Court’s options is helpful. The existence of the third option, being at least one of three possibilities, indicates the need for expedition. For those reasons I make the following directions: (1) That the DPP file and serve written submissions on those questions I have outlined by COB Wednesday, 2 July 2025. (2) That the appellant file and serve written submissions in reply by COB on Thursday, 3 July 2025. (3) That the Court’s decision on the reserved question will then be reserved, noting the urgency to which I have referred.
I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date:
O'Connell
DPP
The DPP was directed to file and serve written submissions by close of business on 2 July 2025. The appellant was directed to file and serve submissions in reply by close of business on 3 July 2025. The Court reserved its decision on the further question, noting the urgency of the custodial-status issue.