O’Connell examines the correct methodology that an intermediate appellate court should take when considering whether a verdict is unreasonable.
DPP v O’Connell [2026] HCA 41 (4 November 2026)
In this case, the High Court unanimously allowed the ACT Director’s appeal from a Court of Appeal judgment which had set aside Michael O’Connell’s conviction for murder and entered a verdict of not guilty on the basis of the verdict being unreasonable.
The facts were that O’Connell drove at high speed with his partner on the bonnet. She died, and he was charged with murder and found guilty. Amongst several grounds, O’Connell appealed his conviction to the Court of Appeal on the basis that the verdict was unreasonable or could not be supported having regard to the evidence. After the Court had reserved judgment, the parties were invited to make submissions about certain aspects of the evidence in relation to the unreasonable ground.
The majority of the Court of Appeal upheld this ground on the basis that they had a reasonable doubt as to whether the prosecution proved that O’Connell was recklessly indifferent to the probability of causing death. The majority did not consider this doubt to be explicable by the jury’s advantage in seeing and hearing the evidence at trial. However, McCallum CJ dissented and would have dismissed O’Connell’s appeal.
The DPP appealed to the High Court on two grounds. The first concerned O’Connell’s reckless indifference to the probability of causing death. This ground argued that the majority erred in allowing the appeal on a basis that was not raised at trial nor on appeal, in relation to a hypothesis which was not open on the evidence. This ground was dismissed and the plurality of the High Court said at [29]:
Both a criminal trial and a criminal appeal are adversarial contests. Ordinarily, where no question of the competence of counsel or any similar circumstance arises, the issues raised at a criminal trial define the outer boundary of the issues that may be pursued on appeal. While the court’s function in considering an unreasonable verdict ground is to make its own independent assessment of the evidence and “ask itself … whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that function does not impose a duty on the intermediate appellate court to consider parts of the record of the trial not placed by the parties before it or to search the trial record for any error requiring the quashing of a conviction where the appellant “has not relied on an issue or on evidence” that points to or suggests that error. Instead, it is for the parties to the appeal “to identify the evidence [from the trial] that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal”.
However, the Court went on to draw a distinction between an intermediate appellate court not being bound to search the record for error and not being permitted to raise an issue with the parties. “If one of the parties then takes up the point and the other affected party (or parties) is afforded procedural fairness, and if the point is otherwise capable of being raised on the appeal, then an appeal court will not fall into error by considering the point” [39]. Besides this, recklessness was actually put in issue at O’Connell’s trial [41]-[43]. Furthermore, no analogy could be drawn with the approach that the QLD Court of Appeal took in Baden-Clay (2016) 258 CLR 308. This was because Baden-Clay gave evidence in his trial denying that he had anything to do with this wife’s death whatsoever, and the QLD Court of Appeal substituted a verdict of manslaughter which was at odds with Baden-Clay’s case at trial, the substitution being an accidental death after a confrontation. In that case, the High Court reinstated the verdict of murder because “the Court of Appeal identified a factual scenario different from that contended for by the prosecution and the accused (and otherwise not supported by any evidence) …” [47]. In O’Connell, the possibility of driving without reckless indifference to the probability of the deceased’s death did arise on the evidence. Additionally, O’Connell’s record of interview was not probative either way on this issue of reckless indifference.
The DPP’s second ground submitted that the majority failed to 1) make full allowance for the advantages enjoyed by the jury and 2) failed to properly address the circumstantial case in respect of reckless indifference. This ground was allowed and the verdict of murder was reinstated. In essence, the DPP submitted that the Court of Appeal did not properly apply M v The Queen (1994) 181 CLR 487. The High Court restated the applicable principles flowing from M as: “…M v The Queen requires an appellate court, in deciding an unreasonable verdict ground, to ask itself “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”. In doing so the appellate court “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”, including “seeing and hearing the evidence as it unfolds when evaluating factual matters”. Instead, the appellate court “must pay full regard to those considerations” and make “full allowance for the advantages enjoyed by the jury”. To that end the appellate court should “identify the existence, nature and scope” of those advantages. In some cases involving (say) electronic exhibits, it will sometimes be necessary for the appellate court to view or listen to that exhibit to ascertain the existence, nature and scope of the advantage enjoyed by the jury in seeing and hearing that evidence in the context of the trial. [61].
In relation to the first asserted error, the Court found that Taylor J, who gave the leading judgment for the majority, erred by diminishing the jury’s advantage of hearing the evidence, by focusing on CCTV footage which captured O’Connell’s driving but only in part, whereas McCallum CJ acknowledged the limitations of said footage. Additionally, the jury went on a view of the scene, which was significant in the context of the facts and the majority did not.
In relation to the second asserted error, the High Court examined the methodology of Taylor J’s reasoning and said that Taylor J had incorrectly approached the circumstantial case in a piecemeal manner. As such, the matter was remitted back to the ACT Court of Appeal for O’Connell’s appeal against conviction to be heard according to law.
Edelman J agreed with the orders and reasons of the plurality, while providing additional reasons which concerned the nature and scope of ‘jury advantage’ as applied to the facts of this case, in the context of “a potentially serious error in directions to the jury” [93].
