HUMAN RIGHTS - factors relevant to grant of bail - Bail Act 1992 (ACT), s 22 - relevance of right to liberty - Human Rights Act 2004, s 18 (ACT) - presumption of innocence and interests of the accused - balanced against attendance at trial and "future risk" to the community - refusal of bail for "future risk" tantamount to "preventative detention" - policy of mandatory arrest in family violence matters - management of mental health and strict bail conditions held to mitigate risk.

EVIDENCE - assessment as to risk must be based on more than mere suspicion - court may consider any "information" it considers "relevant and reliable" - Bail Act 1992 (ACT), s 19(6).

Human Rights Act 2004 (ACT), s 18

Crimes Act 1900 (ACT), s 30

Bail Act 1992 (ACT), ss 9A, 9B, 19, 22, 23A

_Firearms Act 1996 (_ACT), ss 6, 43, 93, 180, 237, 252

Legislation Act 2001 (ACT), s 133

Drugs of Dependence Act 1989 (ACT), s 171

Prohibited Weapons Act 1996 (ACT), Sch 2, s 5

Bail Act 1978 (NSW), s 8A

Bail Act 1985 (SA), s 10

Evidence Act 1995 (Cth), ss 4, 8

Brown D, "Bail: an Examination" (1971) 45 ALJ 193

R v Boney [2008] ACTSC 30

Re an application for bail by Skeen (2009) 3 ACTLR 53

Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667

R v Hilton (1987) 7 NSWLR 745

R v Light [1954] VicLawRp 25; [1954] VLR 152

In the matter of an application of bail by Paul Blundell [2008] ACTSC 138

Re S [2005] TASSC 89; (2005) 157 A Crim R 451

Dunstan v The Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168

IN THE MATTER OF AN APPLICATION FOR BAIL BY RICHARD DONALD BREEN

1. That the applicant be granted bail with a cash surety in the sum of $2000 from Donald Maxwell Breen or Margaret Elizabeth Breen or both, on the following conditions.

(i) That he accept supervision by the Chief Executive or the Chief Executive's delegate and obey all reasonable directions of the person delegated to supervise him, including those concerning mental health treatment.

(ii) That he reside at 2/4 Silva Avenue Queanbeyan.

(iii) That he not absent himself from his place of residence between 9 pm and 6 am daily and present himself to police at his residence during this time whenever required.

(iv) That he take medication as directed by his treating health professional.

(v) That he report to the officer in charge of Queanbeyan police station every day between the hours of 8 am and 8 pm.

(vi) That he not contact, directly or indirectly, approach, assault, threaten, harass or intimidate Tracey Cowie, also known as Tracey Clyde, Jacob Clyde, Trinity Breen or Reece Breen.

(viii) That he not be in possession of a firearm, ammunition or any prohibited weapon.

(ix) That he give his consent to any treating health professional to provide any information reasonably required of the person delegated to supervise him about his treatment and medication.

(xi) That he make contact with the Belconnen Mental Health Team by 6 January 2010 and report that to the person delegated to supervise him within 24 hours after he has done so.

(xii) That he submit himself to such treatment or counselling as may be recommended by the Belconnen Mental Health Team or any other Mental Health Team to which he is referred.

(xiii) That he attend the ACT Magistrates Court on 4 January 2010 and thereafter as required.

(xiv) That he upon release go straight to Corrective Services at Eclipse House to arrange supervision.

1. On Christmas Eve, Richard Donald Breen, the Applicant, sought bail. The hearing of this application extended until after 5.30 pm and I express my gratitude to Court, Corrections and other staff who were thereby required to assist the Court in a hearing on such an occasion.

2. Nevertheless, the liberty of persons in the community is an important right, expressly mandated by s 18 of the Human Rights Act 2004 (ACT), and on occasions the personal convenience of such staff have to be subordinated to that important right. In the event, the matter could not be concluded on that day and I adjourned until today for further hearing.

3. Mr Breen has been charged with a number of offences. The most serious is a charge of threatening to kill contrary to s 30 of the Crimes Act 1900 (ACT) which carries a maximum penalty of 10 years imprisonment. While a serious offence, it is by no means the most serious in the criminal calendar.

4. Indeed, unless an applicant for bail, charged with such an offence, has been found guilty of an offence involving violence or a threat of violence in the previous 10 years, the offence does not remove the entitlement to bail (unless a court is satisfied the refusal is justified) as is found in s 9A of the Bail Act 1992 (ACT) (the Bail Act). See also section 9B of the Bail Act, to which I shall return.

5. In addition, Mr Breen has been charged with three counts of failing to surrender firearms to police and possessing a quantity of cannabis. The firearms offences are said to be laid under s 93 of the Firearms Act 1996 (ACT), but that section does not create an offence and appears to have nothing to do with the facts disclosed in the statement of facts tendered in this matter.

6. Doing the best I can, it appears that the offence is one laid under s 237 of that Act, rendering Mr Breen liable to a penalty of 50 penalty units (that is a fine of $5500: see s 133 of the Legislation Act 2001 (ACT)). For such an offence Mr Breen has an entitlement to bail without refusal: R v Boney [2008] ACTSC 30 (at [4]).

7. The drug offence is an offence under s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT) and renders Mr Breen liable to a fine of $5500 or imprisonment for two years or both.

8. These offences arose out of events which occurred on 13 December 2009. Mr Breen was at that time in a relationship with a woman by whom he had had two children. His partner also had a son by another man.

9. The partner and children live in premises at Amaroo where it is said Mr Breen also spends one or two, or three or four, nights a week, depending upon whether Mr Breen or his partner's version of the living arrangements is to be preferred. It appears that he spends the other nights at his workshop in Queanbeyan.

10. Mr Breen was, on this occasion, at the house and is alleged to have rung the mother of his partner at 8.15 am. He is said to have asked her whether his partner was there and then complained that he had been trying to contact her, saying: "I have rung [her mobile phone] over 400 times."

11. He was clearly agitated and suggested that he was taking the children with him. He said: "If we were married, we would now be divorced." He also said: "I've got big problems with my head."

12. The allegation founding the most serious charge is that he then said: "and if [his partner] gets boyfriends out of this, I will get my gun and blow all their heads off. I will kill us all. Better that than have them molested as I was."

13. Mr Breen's partner's mother said to him: "Rick, that's a stupid thing to say, you don't really mean it", but in her statement, also tendered, she said she believed that he would actually do it. She said he was agitated and on the phone for an hour. He hung up a number of times and she rang him back trying to calm him down. She claimed that on two occasions he threatened to kill the whole family.

14. Mr Breen gave oral evidence before me and was cross-examined. He gave no explanation of what precisely had caused his agitation, especially not to the extent that it was as extreme as the reported allegations made out. He did say that his partner often stayed out at night and he would try to contact her. Because she would usually be in a nightclub, where it was noisy or she would be on a dance floor, it was not uncommon for him to have to ring her 50 times before she would answer. The statement of his partner, tendered before me today, tended to support that, although the suggestion of ringing 50 times sounds a little exaggerated.

15. No evidence was given, at the first hearing, as to where Mr Breen's partner was, though police clearly made contact with her later, nor where the children were. A subsequent statement provided by Mr Breen's partner showed that she was at a school reunion and that the children were being minded elsewhere.

16. Mr Breen's partner's mother informed her son of the call and he went to the Amaroo address with his brother and father. Mr Breen claimed that they arrived, with one of the sons bringing a baseball bat, and that they hit him. Police, when they later arrived, found Mr Breen with a split lip, described in the statement of facts as: "a small cut to his lower lip."

17. When police questioned Mr Breen, he is said to have stated that he was depressed and "wanted to end it all." He was said to have thought of "necking" himself and of shooting himself. Police assert that he then turned to the back of the house where the bedrooms were, but was stopped from going there.

18. A subsequent search discovered three unregistered rifles. Mr Breen told police that he had had them for about six to eight weeks. His partner said, in the statement tendered to me today, that she thought he had them for about six months. He said in evidence to me that he had purchased a boat and had found them in the boat, a version of events not inherently incredible but not easy to accept.

19. He had been a licensed shooter but had lost his license for 10 years when he was convicted in 1999 of three counts of possessing unregistered firearms and three counts of failing to ensure their safe-keeping. On each charge he was fined only $100. He said that on that occasion the rifles were not in working order and unable to be fired, which may explain in part the low fines.

20. In an interview with police, Mr Breen admitted to having the three guns. It is not clear to me whether this was before or after they were found. He stated that he knew it was illegal to possess them.

21. A search of the premises also revealed an amount of dried green vegetable matter in two large, "clip-seal" bags, dried green vegetable matter rolled in Gladwrap and a small "clip-seal" bag with green and brown buds. Police believe that the green vegetable matter is cannabis and the buds are cannabinoid seeds.

22. In his interview with police, Mr Breen admitted to having two bags of cannabis in his possession. In his evidence to me, he implied that he had purchased the cannabis for his partner. His partner, in her statement, made no mention of that other than that she knew he had cannabis in his possession.

23. Because of Mr Breen's behaviour, he was taken to the Psychiatric Services Unit of the Canberra Hospital. He was admitted, but after assessment by a medical practitioner, was discharged and then arrested and later taken to the regional Watch-house where he was interviewed and charged.

24. He identified himself as an Aboriginal man and later appeared in the ACT Magistrates Court. The learned Magistrate refused bail and he was remanded in custody until 4 January 2010.

25. The learned Magistrate noted on the bench sheet the reasons why he refused bail and this was available to me, see Re an application for bail by Skeen (2009) 3 ACTLR 53 (at [10]). They were noted as "mental health issues" and his claimed access to "illicit" firearms. The latter arises out of information provided to police by an informer, namely that Mr Breen had secreted firearms in two locations in New South Wales.

26. The informant told me that he had already alerted New South Wales police in the Monaro and Cootamundra commands to this information and that it was being followed up by them.

27. As to the former, a forensic mental health report was ordered by the learned Magistrate, but was not available for reasons that will become apparent later. Mr Breen told me that he had been seen in the Alexander Maconochie Centre by a health official and had been diagnosed with Bipolar Disorder and had been prescribed medication, Olanzapine, which had made him feel much better.

28. He denied that he hid any firearms in New South Wales. He asked the informant who the informer was, but I disallowed the question, relying on the so-called "informer's privilege": Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 (at 674-6).

29. Mr Breen said he suspected that the informer was one of his partner's brothers who bore him ill-will because he had terminated his employment for unsatisfactory performance some years before. No doubt, if that is so, police will deal with any information provided from that source with appropriate circumspection.

30. That concern might be justified by the fact that the 1999 offences, referred to above, were discovered when warrants were executed at Mr Breen's premises where, it was apparently believed that, rifles, grenades and rockets were located. As noted, three guns only were apparently found and the offences involving them attracted a very modest fine.

31. The informant, in his evidence before me, expressed concern that if granted bail Mr Breen might interfere with witnesses, and also expressed the fears of Mr Breen's partner, though there was no evidence to show that she was a victim for the purposes of s 23A of the Bail Act. He did say that no ammunition had been found for the rifles.

32. He also referred to finding, during a search of Mr Breen's car, some tape under a seat and suggested that it showed that the car may have been used to transport guns. That seemed to me to be pure speculation. Mr Breen suggested that it was manufacturer's tape.

33. The informant also advised that further charges were likely to be laid. These included charges relating to the failure to store safely the rifles found in the Amaroo premises. These are presumably offences under s 180 of the Firearms Act 1996 (ACT) and attract, it would appear from the material before me, a maximum penalty of imprisonment for one year.

34. Whilst unsafe storage of firearms, particularly in houses where there are young children, is always of concern, the proposed offences do not add much to the criminality of the circumstances outlined above.

35. Perhaps of somewhat more concern is that the search of Mr Breen's car also revealed an extendable metal baton which, it was asserted, was a prohibited weapon, see item 11 in Sch 2 of the Prohibited Weapons Act 1996 (ACT). Possession of such a weapon would be an offence under s 5 of that Act, rendering Mr Breen, if convicted, to a fine of $5500 or imprisonment for five years or both.

36. To some extent, Mr Breen modified the concern that this raised by pointing out that when approached by his partner's brothers and assaulted by them he did not get the baton out or attempt to or actually use it.

37. Since then the informant has advised that he did propose to lay further charges. These all arise out of the fact that the firearms were not properly stored, as I have referred above, and that they were not authorised to be in Mr Breen's possession. The latter offence is a more serious offence and carries a maximum penalty of imprisonment for seven years (see s 43 of the Firearms Act 1996 (ACT)). Failure to comply with firearm storage requirements, as I have said above, renders Mr Breen liable to imprisonment for one year in each case.

38. Mr Breen has a criminal history. It is not a particularly long one. I have referred already above the firearms offences in 1999.

39. In 2001 he was convicted of charges of assault, keeping a savage dog and having a dog not restrained on a leash. Mr Breen said this arose from an incident when the victim deliberately ran into his dog and he assaulted the victim. He seemed somewhat unrepentant but said, and I can not gainsay it, that the learned Magistrate expressed sympathy for him. The penalties that the Magistrate imposed however do not reveal particular sympathy expressed in the sentence.

40. In 1995, he was convicted of possession of stolen property. The property was a coin collection, though he could not at first remember what it was. It was submitted by Mr S Lawrence, who appeared for the prosecution at the original hearing, that this failure to remember and later remembering of the property was feigned, showing that Mr Breen was not a creditable witness but I am not prepared to make that finding.

41. In 1994, he was convicted of criminal damage. He said that the property damaged was the windscreen of a car which, he said, was cruising up and down outside his place, "casing" the premises with a view to stealing from him.

42. He also had, before that, a number of convictions from traffic offences, the most recent being in 1992.

43. The assault conviction is clearly an offence of violence, and this activates section 9B of the Bail Act. This provides that the presumption of bail does not apply to a grant of bail for Mr Breen for the present offence of a threat to kill.

44. So far as I am aware, s 9B is a unique provision in Australia. There are, in other jurisdictions, provisions providing a presumption in favour of bail (for example s 8 of the Bail Act of the Northern Territory) or a presumption against bail (for example s 8A of the Bail Act 1978 (NSW)), but no other regulation referring to bail specifies that the presumption does not apply. It may be expressed in ways that do not refer to a presumption, for example s 10 of the Bail Act 1985 (SA), but the effect of the regulation there was that there was a presumption.

45. I am also unaware of any consideration that has been given to the question of how the section is to be construed, in particular what, if any, onus is cast on the applicant or the prosecution.

46. Some assistance is to be found in the decision of the New South Wales Court of Criminal Appeal in the R v Hilton (1987) 7 NSWLR 745. There, the applicant for bail had been tried, convicted and sentenced for conspiring to bribe a public officer. He sought bail pending appeal. It was held that, on the terms of the Bail Act 1978 (NSW), as then pertaining, there was no entitlement to bail, though there was an entitlement to apply. The Court held that it could not imply the common law requirement that an applicant for bail pending appeal must show special or exceptional circumstances.

47. Street CJ, with whom Hunt and Rogers JJ agreed, said, in relation to the case where there was no statutory presumption in favour of or against bail (at 748):

A convicted person must make a good case justifying the exercise in his favour of the statutory discretion under section 13 [here section 19] to grant him bail. In this sense he bears an onus of putting forward material sufficient to satisfy the Court that bail should be granted to him. The Court must be satisfied of any relevant matter on the balance of probabilities.

48. Thus, the Bail Act changes the common law in respect of offences listed in s 9B, for at common law there was, in non-capital cases, a presumption in favour of bail: R v Light [1954] VicLawRp 25; [1954] VLR 152 (at 155).

49. It is also important, however, to bear in mind s 18 of the Human Rights Act 2004 (ACT) which prescribes a right to liberty and, in particular, a right to persons awaiting trial not to be detained in custody as a general rule. Refusal of bail is not inconsistent with this right: see In the matter of an application of bail by Paul Blundell [2008] ACTSC 138 (at [2]).

50. Nevertheless, s 30 of the Human Rights Act 2004 (ACT) requires Territory laws to be interpreted in a way that is compatible with human rights so far as is possible, consistent with the purpose of a particular act.

51. A strict application of the onus on the applicant, therefore, does not seem appropriate. That is to say, the attitude and information available to the prosecution should also be considered and made available to the court. Thus, the court could not pay proper attention to the applicant's human rights without hearing from the prosecution to allow a proper evaluation of the matters about which they have information.

52. As Douglas Brown noted in his useful pre-Bail Act article, "Bail: an Examination" (1971) 45 ALJ 193 (at 198):

It is a rule of practice that the court should hear the views of the crown in opposing or not opposing an application for bail.

53. The Bail Act makes plain, by the requirement that the court is mandatorily required to take into account certain matters set out in s 22 of the Act, of what the court must be satisfied in order to come to a decision about whether to grant bail or refuse it.

54. That is to say, the court must be reasonably satisfied about whether:

(1) the applicant is likely to appear in court to answer the charge;

(2) the applicant is likely to commit further offences;

(3) the applicant is likely to harass or endanger the safety or welfare of others;

(4) the applicant is likely to interfere with evidence, intimidate witnesses or otherwise obstruct the course of justice; and

(5) the interests of the applicant can be properly protected.

55. The court is permitted by section 22(3) of the Bail Act, when considering these matters, to have regards to any other relevant matter. Section 18 of the Human Rights Act 2004 (ACT) is a relevant matter.

56. In this context, it is worth noting what Slicer J said in Re S [2005] TASSC 89; (2005) 157 A Crim R 451 (at 452):

Bail is a form of conditional, not absolute, liberty (see generally Griffiths v R [1977] HCA 44; (1977) 137 CLR 293) and has long been a method of accommodating the presumption of innocence, the impact of prolonged detention before trial with the ensuring of receiving attendance at trial and potential risk to the community or the State (see distinctions made in the Statute of Westminster I, "A History of the English Law", Holdsworth, Vol IV, 525-528).

57. It will be rare, however, that the various matters required by the Bail Act to be considered by the court will all point to a grant or refusal of bail. The conflict must be resolved and in this the court is required to make an assessment of what Slicer J called in Re S "future risk".

58. Indeed, the nature of bail is very much that of managing risk in circumstances where information is often quite limited. Here, for example, Mr Breen described the guns he had in 1999 as unworkable, that is not insignificant but it is an assertion by sworn evidence. The prosecution, on the other hand, relied upon these offences as showing continuing access to, and interest in, guns. If, as Mr Breen asserted, he had held firearms licences before and the guns were unworkable, this places a somewhat different complexion on the issue.

59. Of course, Mr Breen, unrepresented and incarcerated, is in a poor position to produce the kind of corroboration that would help a court make decisions about bail which appropriately manage risk.

60. In the context of the risk of re-offending, the observations of Gyles J, with whom Whitlam and Madgwick JJ agreed, in Dunstan v The Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 (at 184) is apposite:

Refusal of bail ... is tantamount to preventative detention ... This is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation.

Discussion of the matter in terms of risk is calculated to encourage that basis.

61. Accordingly, I have to be satisfied that Mr Breen has made out his case for bail on the basis of the best evidence available, eschewing suspicion or speculation. In my view, Mr Breen's evidence does mitigate to a significant degree the appropriate initial view that this was a serious offence which was engendered in emotional circumstances where very serious violence, at least to Mr Breen himself if not to his partner and children, was threatened and where there were apparent means to carry out such a threat. This was exacerbated by the fact that Mr Breen clearly has some mental health issues which make the likelihood of unpredictable outcomes greater.

62. Mr Breen has employment and has support. A very substantial cash surety was available. His employment is an important factor in favour of bail. In addition, while they are only requirements of the court, strict conditions can do much to protect the community and ensure the attendance of Mr Breen to take his trial.

63. It seemed to me, however, that I did not have enough information about his mental health or about the weapons and the information of the informer, which may be tainted, of which the informant had given evidence. Accordingly, I adjourned the application for further information to be given about these matters.

64. On the resumed application today, I received a number of documents and heard further evidence which addressed a number of the issues of concern. I received a report from Dr Daniel Bonner, staff specialist forensic psychiatrist, who had assessed Mr Breen at the Alexander Maconochie Centre. Mr Breen had been earlier seen by Dr Len Lambeth, forensic psychiatrist.

65. Dr Lambeth prescribed the Olanzapine medication which, as Ms Diana Newman, registered nurse, said in oral evidence before me, is used as a medication for such mood disorders as Bipolar Type II Disorder which Dr Bonner had diagnosed Mr Breen as suffering.

66. As Ms Newman said, Type II Disorder leads to more episodes of depression and this is likely to be accompanied by a greater incidence of suicidal ideation. Ms Newman also advised that Mr Breen had not, to her knowledge, accessed mental health services before.

67. Dr Bonner, in his report, set out what he, perhaps cheekily, perhaps quite appropriately, described as "Advice to Court":

Mr Breen is recovering well from his initial period of distress. He does not suffer from a florid or stark form of mental disorder. I do not think that compulsory treatment is warranted. That is, I do not believe that his symptoms lead him to be an acute danger to himself or others as would be required under the Mental Health Act when considering compulsory treatment.

I do not believe that mental disorder is an impediment to bail, nor do I believe that it would be a reason for referral to hospital at this point in time. His condition is well managed, either in the community or in the Alexander Maconochie Centre.

68. Dr Bonner recommended continued medication, ongoing medical review and a referral to the Belconnen Mental Health Team with a view to review and monitoring by a doctor of that team.

69. It seems to me that this information is very important. It gives some background to Mr Breen's alleged behaviour and gives an option for management which is unlikely to bring risk to the community or to any of Mr Breen's associates.

70. Mr D Sahu Khan, who appeared for the prosecution on the adjourned hearing, submitted that I should wait for a full mental health report, that Magistrate Burns had ordered on 13 December 2009. Ms Newman said that such a report takes usually six to eight weeks from the date of request. Dr Graham George usually prepares such a report. Ms Newman said that he and Dr Bonner work with each other and that while Dr George would take Dr Bonner's views seriously, they would not necessarily agree.

71. In the light of Dr Bonner's report, I do not see that I need to have Mr Breen deprived of his liberty for six to eight weeks just because Dr George might disagree. I would, even then, have to choose between the two views. Dr Bonner, to some extent supported inferentially by Dr Lambeth, was clear and forthright in his views.

72. I also received details of the guns which had been seized from Mr Breen's premises. They were, in fact, all in working order. This is a matter of concern.

73. Mr Eric Davies, team leader of the Firearms Identification and Armoury Team, gave his opinion that they were all firearms as defined by s 6 of the Firearms Act 1996 (ACT), and that one of them had been defaced and the identification marks altered, contrary to s 252 of that Act. They were all functional in that they fired as designed when the triggers were depressed and they were in fair condition, though the original finish on one gun had been removed and there was visible surface rust on one other.

74. It remains the fact, however, that no ammunition was found on the premises. The informant also gave further evidence and informed me that in relation to the two referrals to New South Wales police about guns secreted there, that "there was nothing pending in Queanbeyan", which I took to mean that no firearms had been found there, and that no report had been received from Temora. Given that Temora is further away and nothing was found in Queanbeyan, the risk is largely eliminated.

75. The statement of Mr Breen's partner was tendered. Initially, Mr C Lynch, who appeared for Mr Breen in the resumed hearing, objected to it as he could not cross-examine the maker of it. That in my view is not a ground for rejection of the statement.

76. Section 4 of the Evidence Act 1995 (Cth) does state that the provisions of the Act, which means all the technical rules of evidence, apply to, inter alia, proceedings that relate to bail. That section, however, is subject to s 8 which provides that the Act does not affect any other act of the Territory. Thus it does not affect, in particular, s 19(6) of the Bail Act which provides that, "in deciding whether to grant bail to an accused person, a court may have regard to any information it considers relevant and reliable."

77. The use of the word "information" makes it clear in my view that what the court may receive is not limited to sworn evidence complying with all the rules of evidence. Of course, the weight that attaches to such information is different and it is clear that a court would give less weight to information that was hearsay and unable to be subject to cross-examination, especially if, as here, it was the subject of challenge, than to evidence that was given in the more usual or traditional way.

78. The statement gave a history of difficulties in the relationship between Mr Breen's partner and Mr Breen over the last few months. They had, in fact, been together for about 12 years. She did refer to an incident which, as described, could be considered as an assault which is said to have occurred shortly before the offences that Mr Breen is now facing, but then said "I do not wish to pursue the matter of assault."

79. That makes it quite problematic for the Court to take it into account, for if challenged the claim is not even an allegation that the claimant victim is prepared to have decided by a court. In my view, the most I can take from this is that there have been recent difficulties in the relationship, which is supported by an untested and un-testable allegation.

80. She did state that while she knew of the guns in the house she thought that they were "heritage" and did not work. Nevertheless, she did report that one of the children had found them under the bed and apparently she mentioned this to Mr Breen. When her father and brother searched for them under the bed, they were gone. She says she said to them: "If he was going to hide them, he would put them through the manhole into the ceiling." In fact, they were found in the walk-in robe out the back. This is consistent with, rather than hiding them, simply putting them out of the way of the children.

81. Mr Breen's partner has applied for a protection order, granted by the ACT Magistrates Court, a copy of which was tendered. It gives wide protection to her and the children, on whose behalf it was also sought and granted. In her statement, she confirmed at least one pre-condition of such an order, namely that she feared that Mr Breen might carry out his threats. No further details of her concerns were expressed.

82. This is not an easy matter to decide. It is possible that, despite all that I have heard, Mr Breen has access to guns and is still emotionally volatile. That, however, is speculation and does not appear to be supported by the evidence.

83. I have regard to what fell from Slicer J in Re S, when referring to a mandatory arrest policy in relation to family violence matters, which, as in the ACT, prefers arrest and therefore immediate custody in relation to violence of a family violence nature. His Honour said (at 461):

It is evident from the legislation that a purpose is the removal of the person from the home who is alleged to have been violent, both as a "cooling off" mechanism and as a medium to long term form of control and risk avoidance.

84. As I pointed out to Mr Sahu Khan, Mr Breen will be released into the community at some point and we cannot simply impose preventative detention because of any risk at all. I have regard to the fact that the prosecution case is relatively strong, though Mr Breen challenges the threat to kill charge and that will have to be heard in due course. There are, of course, only two parties to that conversation.

85. On the firearms and prohibited weapons charges, the prosecution cases seem very strong indeed.

86. I think it is important that Mr Breen's behaviour has in fact been diagnosed as being caused by a mental impairment which is treatable and the effects of treatment are already in evidence.

87. I am satisfied that Mr Breen has a worrying fascination with guns and weapons but am not satisfied that he was in a realistic position or had the immediate capacity to carry out his threat. I accept that he has had access to guns, and that is worrying, but I am not satisfied that he will breach a bail condition not to access them in the future. I am satisfied that suitable bail conditions can address that issue.

88. I have not had any information under s 23A of the Bail Act, and the information from Mr Breen's partner does not satisfy me that, with suitable bail conditions, she will be in danger.

89. Mr Breen has work available and to address his work and debt issues will improve his psychological health, according to Dr Bonner, and this is an important part of the medium term control and risk avoidance. I note that Mr Breen's parents were in Court at the adjourned hearing and were prepared to offer a cash surety of $2000.

90. In all the circumstances, I am prepared to grant Mr Breen bail but on very strict conditions.

91. I grant Mr Breen bail with a cash surety in the sum of $2000 from Donald Maxwell Breen or Margaret Elizabeth Breen or both, on the following conditions:

(i) That he accept supervision by the Chief Executive or the Chief Executive's delegate and obey all reasonable directions of the person delegated to supervise him, including those concerning mental health treatment.

(ii) That he reside at 2/4 Silva Avenue Queanbeyan.

(iii) That he not absent himself from his place of residence between 9 pm and 6 am daily and present himself to police at his residence during this time whenever required.

(iv) That he take medication as directed by his treating health professional.

(v) That he report to the officer in charge of Queanbeyan police station every day between the hours of 8 am and 8 pm.

(vi) That he not contact, directly or indirectly, approach, assault, threaten, harass or intimidate Tracey Cowie, also known as Tracey Clyde, Jacob Clyde, Trinity Breen or Reece Breen.

(viii) That he not be in the possession of a firearm, ammunition or any prohibited weapon.

(ix) That he give his consent to any treating health professional to provide any information reasonably required of the person delegated to supervise him about his treatment and medication.

(xi) That he make contact with the Belconnen Mental Health Team by 6 January 2010 and report that to the person delegated to supervise him within 24 hours after he has done so.

(xii) That he submit himself to such treatment or counselling as may be recommended by the Belconnen Mental Health Team or any other Mental Health Team to which he is referred.

(xiii) That he attend the ACT Magistrates Court on 4 January 2010 and thereafter as required.

(xiv) That he upon release go straight to Corrective Services at Eclipse House to arrange supervision.

I certify that the preceding ninety one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the applicant: Craig Lynch & Associates

Counsel for the respondent: Mr S Lawrence, Mr D Sahu Khan

Solicitor for the respondent: Director of Public Prosecutions (ACT)