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[2025] ACTCA 36
respondent. Bail was refused. The Court considered that special and exceptional circumstances existed, but that the relevant s 22 matters and the outstanding Court of Appeal questions did not warrant release...
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O’Connell’s murder conviction and sentence had been set aside, and a not-guilty verdict on murder entered. But the Court of Appeal had not yet decided whether the case should end, whether a manslaughter verdict should replace the murder verdict, or whether there should be a manslaughter retrial. McCallum CJ accepted that this unusual position and the delay amounted to special and exceptional circumstances. The Court nevertheless considered the seriousness of the alleged offence, the strength of the evidence and the risks raised by O’Connell’s history. It refused bail while the appeal questions remained unresolved.
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2,129 words · generated 06/10/2026
This is an ex tempore decision by McCallum CJ on Michael O’Connell’s application for bail. The application arose after the ACT Court of Appeal had set aside his murder conviction and sentence, but had not finished deciding the legal consequences of that decision.
O’Connell had been convicted of murder by a jury and sentenced by Baker J. The Court of Appeal, by majority, allowed his appeal on 27 June 2025, set aside the guilty verdict and sentence, and entered a verdict of not guilty of murder. It reserved, however, the question of whether another verdict should be entered because manslaughter had been left to the jury as a statutory alternative ([1]).
Three questions remained before the Court of Appeal: whether s 297 of the Crimes Act 1900 (ACT) prevented any further verdict; whether the Court should substitute a manslaughter verdict; and, if it did not, whether the proceedings should be remitted for a manslaughter retrial ([2]). At a directions hearing, it was conceded for O’Connell that the indictment was not acquitted until those reserved questions were determined. He therefore remained in custody ([3]).
There was also a separate sentencing history relevant to how long he had been held. After the appeal decision, O’Connell was sentenced by the ACT Magistrates Court to 12 months’ imprisonment for summary family violence offences involving a different complainant. The sentence was recorded as running from 15 April 2022 to 14 April 2023. The judgment explains that the commencement date coincided with the date he was taken into custody for the matters tried by Baker J. The Crown Prosecutor calculated that he had spent about 863 days, or two years and four months, on remand referable to those matters ([4]).
McCallum CJ observed that no provision in Div 2.4 of the Bail Act 1992 (ACT) exactly matched the unusual circumstances. The Court considered it convenient and appropriate to proceed on the assumption that the application was for bail pending appeal under s 9E, while recognising that, if that characterisation were wrong, the application could be treated as one for bail for a person on remand for manslaughter ([2], [11]). The application was refused ([16]).
The Court separated the threshold question from the overall bail assessment. On the assumption that s 9E applied, the Court said bail must not be granted unless special or exceptional circumstances favouring bail were established ([5]). It also considered the effect of ss 9B and 9D. The prosecutor accepted that s 9D did not apply because the earlier pending charges were not “serious offences” within that section. The Court considered s 9B applicable because the indictment had not yet been acquitted, removing the presumption for bail ([7]).
The Court’s stated approach was to consider, first, that there was no presumption for bail; secondly, whether special or exceptional circumstances existed; and thirdly, the matters in s 22 ([8]). It found the threshold met. The relevant circumstances included the quashed murder conviction and sentence, the unresolved possibility of a manslaughter verdict or retrial, and the delay since the trial and appeal proceedings ([6], [9]).
That finding did not end the analysis. Section 22 required attention to matters including risk of committing an offence, the nature and seriousness of the offence, background and character, community ties, and the strength of the evidence ([10]). McCallum CJ considered the alleged offence serious and the evidence strong. She also referred to O’Connell’s recent history, including a 2021 conviction for using a carriage service to menace, harass or offend, the later 12-month sentence for stalking offences, and the allegation that the offences concerning the deceased were committed while he was on bail for other matters. The judgment also noted that two recent female partners had been victims of such offences ([11], [13]).
The Court acknowledged countervailing matters. O’Connell had spent about two years and four months on remand, and had a new partner who was prepared to have him live with her ([12], [14]). But his counsel had fairly conceded that it could not yet be said with great conviction that he was at risk of spending more time in custody than a sentence that might be imposed if he were found guilty of manslaughter ([12]). The Court concluded that there were risks in releasing him and that it was appropriate to await the Court of Appeal’s decision on the manslaughter questions ([14]).
The result therefore reflects two distinct findings: the exceptional procedural position justified satisfying the threshold, but the Court’s assessment of the statutory bail considerations still led it to refuse release. The reasons do not treat exceptional circumstances as an automatic entitlement to bail.
The judgment describes the legal framework as applied to this particular application, rather than undertaking a general review of bail law. Its central statutory statement is that, on the assumption s 9E governed, the Court could not grant bail unless special or exceptional circumstances favouring bail were shown ([5]). It then treated s 9B as removing the presumption for bail because the indictment remained unresolved, and s 9D as inapplicable on the facts ([7]).
The decision’s immediate procedural setting was unusual: the murder verdict had been set aside and a not-guilty verdict entered, but the Court of Appeal had expressly reserved whether another verdict should be entered. The decision records that the parties proceeded on the basis that the indictment had not been acquitted while those questions remained open ([2]–[3]). It does not determine the reserved questions about s 297, substitution of a manslaughter verdict, or retrial. Those matters were still before the Court of Appeal.
Accordingly, the reasons do not establish a comprehensive new test for all bail applications after a conviction is quashed. They show how McCallum CJ approached this application: identify the applicable bail threshold as an assumption, determine whether exceptional circumstances were present, and then assess the s 22 matters. The Court’s specific conclusion that the combination of procedural events and delay met the threshold is tied to the facts described in the reasons ([6], [9]).
The judgment also does not decide what the result would be if a manslaughter retrial were ordered. It says that such a development would produce “a very different set of circumstances” because a trial could not be heard until the following year, making delay more significant in a future bail application ([15]). That is a forward-looking observation, not a ruling on a later application.
At [2], McCallum CJ says: “None of the sections in Div 2.4 of the Bail Act 1992 (ACT) exactly fits his circumstances.” In plain English, the applicant’s position did not neatly fit the usual statutory categories because his murder conviction had been set aside but the Court of Appeal had not completed its consideration of manslaughter. The Court chose to deal with the application on the basis of bail pending appeal.
At [5], the reasons state that the Court “must not grant bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail.” This is the threshold the Court applied on the assumption that s 9E governed. The wording makes clear that the threshold concerns circumstances favouring bail, not simply unusual facts considered in isolation.
At [8], the Court identifies a sequence: there was no presumption for bail; the Court had to decide whether special or exceptional circumstances existed; and it then had to consider s 22. This is important because satisfying the special-circumstances threshold did not replace the statutory risk assessment.
At [9], the Court says that special and exceptional circumstances were established “by reason of the unusual combination of legal events” and delay. This records the applicant’s success on the threshold issue. It does not mean that bail was granted.
At [11], the Court states that its own assessment was that “the nature of the alleged offence is serious and that the evidence against Mr O’Connell is strong.” The Court was considering the bail application, not finally deciding the reserved manslaughter issues. The passage explains why the evidence and gravity of the alleged offending weighed against release in the application before it.
At [14], the Court concludes: “Accordingly, bail is refused.” It gives the immediate reason as the risks in release and the appropriateness of awaiting the Court of Appeal’s decision on the outstanding manslaughter questions.
At [15], the Court notes that, if the matter were remitted for a manslaughter retrial, the circumstances would be different because the trial could not be heard until the following year. In plain English, the existing refusal was not presented as resolving every possible future bail application. The judgment anticipated that further delay could alter the balance in a later application.
The decision is most directly relevant to a bail application in a procedural situation with several features together: a conviction has been set aside; a not-guilty verdict has been entered on the principal charge; the appeal court has reserved whether an alternative verdict should be entered; and the accused remains in custody while that question is unresolved. The judgment’s treatment of that combination is expressly tied to O’Connell’s circumstances ([1]–[3]).
It is also relevant where the applicant relies on delay and time already spent in custody to establish special or exceptional circumstances. Here, the Court accepted that the unusual legal events and delay met the s 9E threshold ([6], [9]). But the decision illustrates that a threshold finding is distinct from the ultimate assessment of bail under s 22. The applicant’s period on remand, the uncertain possible sentence, the strength of the evidence as assessed by the judge, and the risk matters all formed part of the further assessment ([10]–[14]).
The decision should not be read as saying that a quashed conviction automatically leads to bail, or that time spent on remand necessarily outweighs concerns about risk. Nor does it determine how s 9E operates in every case. The Court expressly noted that no provision in Div 2.4 exactly fitted the circumstances and proceeded on an assumption about the applicable section ([2], [5], [11]). The judgment is therefore most useful as an example of the Court’s structured approach to this particular combination of pending appeal, unresolved alternative verdict, delay, and bail risk.
The supplied judgment contains no discussion of later cases applying or distinguishing O’Connell v DPP (No 3). It therefore provides no basis to describe how subsequent courts have treated this decision.
The authorities it does identify are the earlier proceedings in O’Connell’s own matter: DPP v O’Connell (No 5) [2024] ACTSC 17, the trial-level sentencing decision, and O’Connell v DPP [2025] ACTCA 20, the Court of Appeal decision setting aside the murder conviction and sentence and entering a not-guilty verdict on murder ([1]). Those decisions form the procedural background, rather than later treatment of the bail ruling analysed here.
The present judgment itself should be read with its stated limits in mind. It did not resolve the manslaughter questions reserved by the Court of Appeal, and it did not decide the outcome of a hypothetical future bail application following a remittal for trial. Its observation that a retrial would produce a different bail context is prospective and confined to the expected delay described by the judge ([15]).
The central unresolved questions in the underlying appeal were whether s 297 of the Crimes Act 1900 (ACT) prevented any further verdict, whether the Court of Appeal should substitute a manslaughter verdict, and whether, if substitution were not appropriate, the proceedings should be remitted for a manslaughter retrial ([2]). This bail decision did not answer any of them.
The Court also did not finally determine whether s 9E was the correct provision for the application. It proceeded on that assumption because it considered the approach convenient and appropriate, while recognising an alternative characterisation as a remand bail application ([2], [11]). Nor did it provide a general explanation of how s 9B and s 9E interact across other procedural situations. Its comments about s 9B and s 9D explain the way the provisions were treated on these facts ([7]).
Finally, the judgment did not decide what weight a future court must give to delay if the case were remitted for retrial. It said only that, if that happened, the circumstances would be “very different” and delay would have greater weight because a manslaughter trial could not be heard until the following year ([15]). The ultimate balance in any later application would depend on the circumstances then before the court.
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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 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)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
O'Connell
DPP
Bail was refused. The Court considered that special and exceptional circumstances existed, but that the relevant s 22 matters and the outstanding Court of Appeal questions did not warrant release at that stage.