Breen v Nationwide News Pty Ltd & Ors

Defamation Act 1958 (NSW) s.17H Defamation Act 1974 (NSW) LEGISLATION CITED: Defamation Act 2005 (NSW) s.31 Children (Criminal Proceedings) Act 1987 (NSW) s.11

Alexander v Arts Council of Wales [2001] EWCA Civ. 514 Bacon v Hansch [2001] TASSC 42 Berezovsky v Forbes Inc [2001] EWCA Civ. 1251; [2001] EMLR 45 Branson v Bowyer [2002] QB 737 Brown v Federated Miscellaneous Workers Union of Australia (1981) 57 FLR 273 Chakravarti v Advertiser Newspaper Ltd (1998) 193 CLR 519 Channel Nine South Australia Pty Ltd v Clarke [2007] SASC 309 Cock & Anor v Hughes & Ors [2002] WASC 108 Digby v Financial News Limited [1907] 1 KB 502 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Ford v Nagle [2004] NSWCA 33 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 CASES CITED: Kemsley v Foot [1952] AC 345 Lange v Atkinson [1998] 3 NZLR 424 Makow v Winnipeg Sun (2003) 172 Man R (2d) 213 at 240 (QB); 184 Man R (2d) 97 (CA) Manock v Channel Seven Adelaide Pty Ltd [2006] 95 SASR 462 McDonald's Corporation & Anor v Steel & Anor [1995] 3 All ER 615 Merivale v Carson (1887) 20 QBD 275 Mitchell v Sprott [2002] 1 NZLR 766 Newbury v Triad Magazine Ltd of Australasia (1921) 21 SR (NSW) 189 Olsen v Abbotsford, Clearbrook Free Press Pty Ltd [1981] BCJ No. 551 Pervan v The North Queensland Newspaper Company Limited and Anor (1992-93) 178 CLR 309 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 Speight v Syme (1895) 21 VLR 672 Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 The Herald & Weekly Times Ltd & Anor v Popovic [2003] VSCA 161 Uren v Australian Consolidated Press Ltd (1969) 71 SR (NSW) 29 Wickstead v Browne (1992) 30 NSWLR 1 Wickstead v Browne (1993) 10 Leg Rep SL 2

Plaintiff: Peter James Breen PARTIES: First Defendant: Nationwide News Pty Ltd Second Defendant: Janet Fife-Yeomans Third Defendant: Caroline Overington

COUNSEL: Plaintiff: B R McClintock SC Defendants: A Leopold

SOLICITORS: Plaintiff: Turner Freeman Lawyers Defendants: Blake Dawson Waldron Lawyers

The plaintiff by way of statement of claim seeks damages for defamation for the four publications set out in the Schedule to this judgment, namely publications dated 18 July, 19 July 22 July and 25 July 2006. All four matters fall within the ambit of the Defamation Act, 2005 (NSW). The defences pleaded include a proposed defence of comment pursuant to s.31 Defamation Act 2005 as well as under the common law.

There are two applications before me. The first is an application to amend the defence to take into account matters that has been raised in written submissions of the plaintiff served on 27 August 2007. The second is the application brought by the plaintiff by way of Notice of Motion filed on 20 August 2007 to strike out paragraphs 19(C), 19(D) and 31 of the defence pursuant to Part 14 r.28(1)(a), together with all particulars thereto. The plaintiff's argument extends to the proposed amended defence. Essentially the plaintiff submits that the facts in the matters complained of contain so many inaccuracies of fact, omissions and distortions that no defence of comment, however particularised, can be pleaded, and that the defence of comment and honest opinion be struck out.

The first matter complained of is asserted to contain the following imputations: 4(a) The plaintiff is unfit to be a Member of Parliament in that he is romantically in love with two vicious murderers.

4(b) The plaintiff holds a perverse attraction towards two vicious murderers.

The second matter complained of is pleaded as conveying the following imputations: 6(a) The plaintiff as a Member of Parliament disgraced himself by declaring his romantic love for two convicted rapists and murderers.

6(b) The plaintiff holds a perverse attraction towards two convicted rapists and murderers.

6(c) In declaring his romantic love for two convicted rapists and murderers the plaintiff as a Member of Parliament is ridiculous.

There is an additional pleading of extrinsic facts which relate to a cartoon.

The third matter complained of is asserted to contain the following imputations: 9(a) The plaintiff as a Member of Parliament engaged in disturbing conduct by declaring his romantic love for two violent sexual offenders.

9(b) The plaintiff holds a perverse attraction towards two violent sexual offenders.

The fourth matter complained of is asserted to convey the following imputations: 11(a) The plaintiff is romantically in love with at least two murderers.

11(c) The plaintiff lied to a reporter when he said that he had been admitted to St Vincent's hospital.

The defence of comment is not pleaded to imputation 11(c) but is pleaded to all the other imputations.

Each of the matters complained of is a publication in the defendant's newspaper concerning the publication of a book by the plaintiff entitled "Life as a Sentence: the true story of the Janine Balding murder", which describes, inter alia, the circumstances in which the offenders were charged, tried and convicted for the abduction, rape and murder of Janine Balding on 8 September 1988. The juvenile offender B was 14 years old at the time of this abduction. By reason of the provisions of s.11 Children (Criminal Proceedings) Act 1987 (NSW) I have not further identified B by name.

The nature of the plaintiff's application can be stated quite simply. To what extent can a defence of comment, whether pleaded under the Defamation Act 2005 ("the Act") or at common law, be based upon facts where one or more of those facts is arguably substantially incorrect? In what circumstances is the inaccuracy so substantial as to warrant the striking out, not only of the particulars, but also of the defence?

When the matter came before me, the plaintiff provided written submissions identifying a number of errors in the pleading and particularisation of comment. Rather than answer this, the defendant sought leave to amend and provided a draft defence. Some of the proposed amendments appear to be inconsistent with the defence of contextual truth (particularly in regard to imputations 4(b), 6(b), 9(b) and 11(b)) and the document bears the signs of a hastily drafted document. I have taken this into account when formulating my orders and also in relation to costs. In addition, Mr Leopold made some concessions during the argument which necessitated my ordering the transcript to ensure I had recorded them correctly.

Summary judgment applications in defamation proceedings

Summary judgment applications are rarely brought in relation to defences in defamation proceedings, because an essential part of all defamation actions (with the exception of absolute privilege) is the determination of disputed issues of fact such as malice. For this reason, even where a defence of comment appears to be weak, the courts had been reluctant to strike out such a defence on a summary basis: see Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139.

In McDonald's Corporation & Anor v Steel & Anor [1995] 3 All ER 615 the UK Court of Appeal, in allowing an appeal against the striking out of parts of the defence and the particulars served thereunder, noted that in an application before trial to strike out a defence of justification or fair comment the defendant need show "reasonable evidence" to support the plea, or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial. Neill LJ noted: "It is to be remembered that the defences of justification and fair comment form part of the framework by which free speech is protected. It is therefore important that no unnecessary barriers to the use of these defences are erected, while at the same time the court is able to ensure that its processes are not abused by irresponsible and unsupported pleadings."

By comparison, Neill LJ added, an application to strike out particulars or a defence at the commencement of the trial or the close of the plaintiff's case will be more readily entertained.

These statements about freedom of speech are made in the context of human rights legislation applicable in England which has no real equivalent in this country. However, Australian courts still exercise great caution when striking out a defence at such an early stage of the proceedings.

The defendants make the following submissions as to why the defence of comment either at common law or pursuant to the Act should not be struck out: (a) The matter will be before the jury in any event because of the defence of contextual truth. For the reasons enunciated by Kirby P in Wickstead v Browne (1992) 30 NSWLR 1 at 5, the marginal utility of striking out the defence of comment at this early stage and running the risk of a successful appeal is minimal when the alternative of appellant intervention has a substantial costs burden. The High Court in Wickstead v Browne (1993) 10 Leg Rep SL 2 endorsed the approach taken by Kirby P. A defence of truth is pleaded to imputations 4(b), 6(b), 9(b) and 11(b) which allege the plaintiff has a perverse attraction (as opposed to romantic love) for two convicted rapists and murderers.

(b) Where particulars appear weak or insufficient, the court should nevertheless exercise great caution striking out either a cause of action or a defence: Ford v Nagle [2004] NSWCA 33. This is correct, but inadequate particulars must be struck out, and there may come a time when the court takes the view that a party has exhausted the right to re-particularise if there are repeated failures to particularise the defence. This is the defendant's second attempt to particularise the defence of comment.

(c) This is the first case to consider the terms of s.31(6) of the Act and the law is currently in a state of flux on the question of the ambit of the defence of comment. The High Court has reserved in the proceedings of Manock v Channel Seven Adelaide Pty Ltd [2006] 95 SASR 462 and caution should be exercised before depriving a party of a defence when the law is in such a state of uncertainty. However, the Full Court of the South Australian Supreme Court was stating orthodox law when their Honours held that a plea of fair comment must address the imputations pleaded by the plaintiff (at [40]) and the defendant has not sought to challenge this position. Even if the High Court overturns the appellate court's decision, this will be a very different legal issue from the entitlement of a plaintiff to challenge a plea of comment to his own imputations on the basis that the facts in the publication which are the basis for the comment have been misstated.

(d) The question whether an opinion ceases to be based on proper material by reason of inaccuracy is quintessentially a jury question and judges should exercise caution in trespassing into the functions of the jury.

(e) The errors pointed to by the plaintiff may relate to imputations concerning the plaintiff allegedly declaring his romantic love for two convicted rapists and murderers but the objections raised cannot go to the imputation that the plaintiff has a perverse attraction to convicted rapists and murderers, or that he is an idiot. Consequently, I should exercise caution striking out a defence of comment which is pleaded to the matter complained of rather than to the imputations. 14. The submissions in (d) and (e) above are submissions which go to the heart of the issues before me. There is no doubt that there are inaccurate statements in the matter complained of. The question is whether the inaccuracies are such misstatements or omissions of fact that no defence of comment can be based upon them.

The correct approach to summary judgment applications in jury cases

Disputed issues of fact relating to the defences will be heard by a jury. Applications to strike out defences in defamation actions must be considered with great caution: Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 189. This is particularly the case in applications which effectively seek to strike out the defence on the basis that not only are the particulars inadequate, but no adequate particulars could ever be given. The judge must not trespass into the questions of fact that are reserved for the jury, either at the trial or at an early stage of the litigation. At whatever stage such an application is made, however, the test is still the same. It was put to me by the parties that the test is the General Steel test (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). However, it may also be of assistance to have regard to decisions which set out the test for taking a defence away from a jury as being whether a jury properly directed, and seeking dutifully to comply with the relevant directions, could conscientiously reach a particular factual conclusion of the evidence and, in particular, after the defence witnesses have been cross-examined (Alexander v Arts Council of Wales [2001] EWCA Civ. 514 at [37] - [38]).

If a judge is able to conclude that a properly directed and conscientious jury could only decide the issue in favour of the applicant, the objectives of case management are also of relevance to the making of such an order (Branson v Bowyer [2002] QB 737 at [15]).

The comment must not be pleaded to general matters but to "the sting of the libel": Cock & Anor v Hughes & Ors [2002] WASC 108. A plea of comment in respect of an imputation not pleaded by the plaintiff does not plead a good defence: Chakravarti v Advertiser Newspaper Ltd (1998) 193 CLR 519 at 528 per Brennan CJ and McHugh J; see also Manock v Channel Seven Adelaide Pty Ltd [2006] 95 SASR 462 at [40]. As indicated above, the correctness of this proposition was not canvassed by the defendant.

The particulars set out in Schedules 1-4 of the proposed amended defence identify the subject materials for the comment. Those particulars are set out in the Schedule to this judgment.

The problems that the defendant face can be seen quite simply when one goes to the passage of the publication which is referred to. On pages 238-239 the following appears: "That night I receive a telephone call on my mobile phone shortly after landing at Ballina airport. A night time radio presenter wants to know what I have to say about Judge Dunford's decision and his producer places me on hold. By the time I get to speak to the presenter, I've walked off into a paddock adjoining the airport car park and I'm gazing up into a black sky filled with endless bright stars. The presenter asks if I would have B ( name omitted ) stay at my house and I tell him the young man would be welcome anytime. This is too much for the radio waves and I'm given short shrift. Once I'm off the line, the presenter tells his listeners I'm a mug, and a string of callers to the program express similar sentiments. One or two want to talk about the extreme youth of the offender, his mental capacity at the time of the crimes, his prospects for rehabilitation and the idea of a second chance. They are chopped off before they have too much to say.

One ambivalent caller says it sounds like I love B ( name omitted ) and the statement causes me to blink at the stars. I remember how much Jack Begnell loves B ( name omitted ) and is committed to his cause. It is a form of love, I suppose, to believe in a person, and to work hard for them in the hope they receive mercy as well as justice. I love Shorty Jamieson no less and I'm not ashamed to say so. I feel oddly satisfied by what I'm doing, to be sharing in the hopes and dreams of two men who may be the tip of an iceberg in the justice system. And to be arguing their cases right in the government's ugly face is immensely rewarding. I wonder if those mongrel convict genes drive me? Anything is possible under a blinking night sky."

The book does not contain an admission that the plaintiff loves B. It records that "[o]ne ambivalent caller says it sounds like I love B". The material passage explaining how the plaintiff feels about B has been omitted, namely the sentence "I remember how much Jack Begnell loves B and is committed to his cause. It is a form of love, I suppose, to believe in a person, and to work hard for them in the hope they receive mercy as well as justice". It is in this context that the following sentence appears "I love Shorty Jamieson no less and I'm not ashamed to say so". Jack Begnell has already been revealed to the reader of the book as a clergyman and prison minister who has guided B since his days as a juvenile inmate. It is because B himself has worked with other prisoners and become a Christian that Mr Begnell says "I just love that boy" (page 12 of the book). The plaintiff goes on to say he feels the same about Shorty Jamieson but does not actually state that he loves B in this same altruistic way.

There are however substantial other references in the first matter complained of (and in the book) in relation to B's rosy cheeks, blue eyes and the like and these are relied upon by the defendant as evidencing a kind of romantic infatuation by the plaintiff for the purpose of the contextual truth plea.

In addition to the facts set out in the matter complained of, the defendants rely on "notorious facts" which are not in the matter complained of. These are limited to the circumstances of the Janine Balding murder and the subsequent trial of the offenders. These are matters of notoriety which clearly fall within the scope of facts which, although not published in the article, may be relied upon for a basis for comment: Kemsley v Foot [1952] AC 345; Channel Nine South Australia Pty Ltd v Clarke [2007] SASC 309 at [47]-[58]. These "notorious facts" are, of course, accurate. Their role in this application was referred to only briefly by the parties. However, the facts of the Janine Balding murder are very widely known in the Australian community and the horrendous circumstances of her rape and murder are an important issue in the substratum of facts upon which any comment is based.

The defence of comment and honest opinion pursuant to s.31 of the Act

Section 31 of the Act provides as follows: " 31 Defences of honest opinion

(1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the "commentator"), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1) - the opinion was not honestly held by the defendant at the time the defamatory matter was published, or

(b) in the case of a defence under subsection (2) - the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or

(c) in the case of a defence under subsection (3) - the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5) For the purposes of this section, an opinion is based on "proper material" if it is based on material that: (a) is substantially true, or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material."

The question then becomes the degree to which an opinion may be based on proper material for comment where some of the facts are inaccurately stated.

The question of what amounts to proper, in the sense of accurate, material for comment has been the subject of a series of decisions in relation to the common law, the Defamation Act 1974 (NSW) and to the codified Defamation Act in Queensland. This is, however, the first case to consider what amounts to proper material for comment under the new Act. (I note there is a defence pleaded at common law as well and I have dealt with this under a separate heading below.)

The plaintiff draws my attention to Merivale v Carson (1887) 20 QBD 275. The facts were as follows. The plaintiff brought proceedings concerning a review of a play which asserted the play was about the "double existence" of a "naughty wife" and her "fatuous husband". In fact there was no plot about adultery in the play at all (at 282 per Bowen LJ). At 284-285, Bowen LJ explained the impact of such significant errors of fact on the defence of comment: "… Still there is another class of cases in which, as it seems to me, the writer would be travelling out of the region of fair criticism - I mean if he imputes to the author that he has written something which in fact he has not written. That would be a misdescription of the work. There is all the difference in the world between saying that you disapprove of the character of a work, and that you think it has an evil tendency, and saying that a work treats adultery cavalierly, when in fact there is no adultery at all in the story. A jury would have a right to consider the latter beyond the limits of fair criticism.

Applying the law to the present case, we have to see whether the learned judge misdirected the jury, having regard to their finding as to the true construction of the article. Their construction of the words of the article could not have been affected by what he said to them about the meaning of "fair criticism". The alleged libel stated that the story of the plaintiff's play turned upon adultery. In a case of manifest misdescription such as this the judge is not bound to go into all the minutiæ as if the libel had been of a different character, and his summing-up must be read with reference to this fact. I have read through the summing-up of Field J, and, though I do not think that his language was altogether exact, yet what possible harm could it have done having regard to the facts of the case? The jury had to deal with a case of positive misdescription, a question not of opinion, but of fact. Did not that fall clearly beyond the limits of fair criticism? Could this Court since the Judicature Act set aside the verdict of the jury, merely because the language of the learned judge was not exactly that which he would have used if he had written his summing-up? Assuming that interpretation the jury put on the meaning of the words to be correct, as we must assume, I entertain no doubt as to the correctness of the remainder of the verdict. And, even if the view of the law as to privilege which I do not adopt were the right view, I do not think it would make any difference in the present case, because, the misrepresentation being clear, the writer having not merely said that the play had an evil tendency, but having imputed to the authors that it was founded on adultery when there is no adultery at all in it, the jury would have inferred, if the question had been left sufficiently to them, that the writer was actuated by a malicious motive; that is to say, by some motive other than that of a pure expression of a critic's real opinion."

However, the decision in this case turns on its facts. The error in question was a significant one in that there was no theme of adultery at all in the play. The law in relation to errors of fact in comment defences in Australia is, however, more relevantly set out in Pervan v The North Queensland Newspaper Company Limited and Anor (1992-93) 178 CLR 309 at 340, where the statement by Lord Porter in Kemsley v Foot [1952] 1 All ER 501 at 357-358 was explained by McHugh J: "In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in particulars delivered in the course of the action? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject matter of the comment but facts alleged to justify that comment .

In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press . The criticism is that that press is a low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. Twenty facts might be given in the particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not of necessity defeat the defendants' plea." (at 340-341 per McHugh J.)

McHugh J also noted (at 341) the following statement by Lord Oaksey at 361: "A defendant who has made a defamatory comment on a matter of public importance must be entitled to adduce any relevant evidence to show that the comment was fair, and in order to do so must be entitled to allege and attempt to prove facts which he contends justify the comment. Whether the facts alleged are satisfactorily proved or not, it will still be for the jury to say whether they consider that the comment in the circumstances proved might have been made by an honest man." 29. McHugh J concluded by noting that it was not necessary for all of the facts to be set out in the matter complained of. The plaintiff's protection is found in the rule that the defence will fail unless the defendant proves the truth of "sufficient facts to justify the comment" (at 342).

30. It is trite law that, to found a defence of comment, "it is necessary to establish that the facts upon which the comment is based are true" (Bacon v Hansch [2001] TASSC 42 at [82] per Evans J; see also The Herald & Weekly Times Ltd & Anor v Popovic [2003] VSCA 161), not the product of the defendant's fancy (Speight v Syme (1895) 21 VLR 672). The question is the extent to which there are sufficient true facts to found the comment.

31. What, however, are sufficient facts to found the comment? In Uren v Australian Consolidated Press Ltd (1969) 71 SR (NSW) 29 the New South Wales Court of Appeal held that a defence of fair comment based on s.17H Defamation Act 1958 could not succeed where the defendant failed to identify any facts at all which could not support the comment. Walsh JA noted, as the High Court noted in Pervan, that unless "some facts" could be placed before the jury the defence could not succeed. Walsh JA went on to note that the defendant must prove the truth of sufficient facts to justify the comment.

32. The courts have given differing interpretations as to the extent to which the factual basis must be true. At one end of the scale, there is the requirement that there be no misstatement of facts; statements to this effect are found in a number of the early cases on comment both in England and Australia. Wade J in Newbury v Triad Magazine Ltd of Australasia (1921) 21 SR (NSW) 189 at 198 held that if a defendant "cannot show that his comments contain no misstatements of facts, he cannot prove a defence of fair comment. If the defendant makes a misstatement of any of the facts upon which he comments, it at once negatives the possibility of his comment being fair" (see also Gorton v Australian Broadcasting Commission (1973) 22 FLR 181; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524; Orr v Isles [1965] NSWR 677). For similar statements in English judgments, see Digby v Financial News Limited [1907] 1 KB 502 at 508 per Collins MR. A similar view was taken in some textbooks; Duncan & Neill on Defamation at page 64 noted that "each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence" (cited with approval by Craig JA in Olsen v Abbotsford, Clearbrook Free Press Ltd [1981] BCJ No. 551 at [28]).

33. At the other end of the scale, however, Lord Porter stated in Kemsley v Foot [1952] 1 All ER 501 at 506: "Twenty facts might be given in the particulars and only one justified, yet if that one fact was sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not have of necessity defeated the respondents' plea."
34. Lord Porter's statement has been cited with approval in a number of Canadian decisions including Makow v Winnipeg Sun (2003) 172 Man R (2d) 213 at 240 (QB); 184 Man R (2d) 97 (CA); as well as in Pervan by the High Court and in other Australian decisions.

Others have opted for the middle ground. In Lange v Atkinson [1998] 3 NZLR 424 at 436 Blanchard J stated that the defendant must prove that "the relevant facts are true or not materially different from the truth" but in Mitchell v Sprott [2002] 1 NZLR 766 at 733 added to the statement "not materially different from the truth" that "the defendant does not need to prove the truth of all the facts which are asserted to support the opinion."

The word "sufficient" is sometimes used to describe the extent to which the facts must be true. There must be "a sufficient basis of true fact to warrant the comment" (Brown v Federated Miscellaneous Workers Union of Australia (1981) 57 FLR 273 at 291 per Gallop J. In Olsen v Abbotsford, Clearbrook Free Press Pty Ltd [1981] BCJ No. 551, the British Columbia Court of Appeal (at [13] ff) were concerned at the use of the word "substantially" by the trial judge and compared the trial judge's use of this word with the warnings in Duncan and Neill on Defamation. Professor Brown, in his encyclopaedic text The Law of Defamation in Canada (2nd ed) notes (at 15.4(2) fn 296) that the appeal court's concern was addressed to a case where a substantial number, but not all, facts were proved to be true and not where there is a single fact that is proved to be true, and that it should not make any difference in either case if the failure to prove the omitted fact does not alter the fairness of the comment.

It is not enough, however, for a defendant to say that some of his facts are accurate. The following must also be considered when looking at the accuracy of the facts that are not wrong on their face. First, those facts must not be distorted, or materially misstated, such as the example given in Gatley on Libel and Slander (now in the 10th edition at para 12.17) referred to by Blanchard J in Mitchell v Sprott at 773 ff of a conviction for a serious crime where the publication omits that it was quashed on appeal. Eady J gives a similar example in Branson v Bower that is particularly helpful, namely a newspaper calling for a teacher charged with child abuse to be suspended from his post without revealing he had been acquitted at trial because it was a case of mistaken identity or DNA evidence excluded him. In those circumstances what Eady J called the "underlying factual substratum" of the comment would have collapsed. Secondly, the facts accurately stated must not be so incomplete as to lead to a material alteration of the truth: John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164, or be "misleading by omission" or "unbalanced" (Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 at 192 per Ohlsson J at 192 and 193).

The defence of fair comment must, however, be distinguished from the defence of justification. Gatley on Libel & Slander (10th ed., para 11.9) notes that while there is a requirement that the substance of what is true be established: "Some leeway for exaggeration and error is given by the defences of fair comment and qualified privilege" citing Berezovsky v Forbes Inc [2001] EWCA Civ. 1251; [2001] EMLR 45 at [12]. In other words, some errors of fact are permissible.

Applying these principles to the imputations pleaded

Although there is a high degree of similarity between the imputations, each needs to be considered in the context of the matter complained of from which it is pleaded as arising.

The statement of fact is that the plaintiff is romantically in love with two vicious murderers.

The matter complained of changes the text and omits parts. The plaintiff does not say "I love B" but that someone says to him it sounds like he loves B. His statement that he loves Shorty Jamieson is misquoted.

The plaintiff in written and oral submissions complains of the following deficiencies in the particulars: (a) Particular 5 is no more than a repetition of the correct version of what the plaintiff said, which has been misquoted in the matter complained of.

(b) When pressed in oral submissions, the defendant actually resiled from saying the plaintiff said he loved B (T-36). The plaintiff submits that this concession is fatal (T-38). 43. The defendant has pleaded a defence of justification to 4(b). It is not clear to me whether the concession by the defendant is limited to a concession that the facts relied upon as the basis for comment did not include a claim that the plaintiff actually said he loved B. Whether it is or not, the question is whether loving one convicted murderer (as opposed to two) would be sufficient basis of fact for the comment. If I use the facts of Merivale v Carson as an analogy, what was important in that case was that no allegation of adultery was made at all. If the reviewer had deplored the "naughty" wife's adultery with two men where the playwright had described adultery with only one, would that be sufficient to found the comment that the play gave support to the immorality of adultery? That is the kind of jury question to which Lord Porter was referring in Kemsley v Foot when he talked about one fact out of twenty. It is the plaintiff's romantic attachment to a person convicted of the rape and murder of Janine Balding that gives rise to the sting of unfitness for parliamentary office. If the matter complained of referred to two such romantic attachments when there was only one, would this make a difference? In my view, this is a question for the jury to determine.

The plaintiff's argument is that the extract from the book is misquoted and the plaintiff expresses no love for either B or Shorty Jamieson. However, the particulars given for B refer to the plaintiff's reference to B's physical attractions; he gives a television to Shorty Jamieson. He feels "a form of love" for both of them. Whatever the plaintiff may literally have said on pages 238-239 about it being "a form of love" to work hard to free B and Shorty Jamieson, the question of whether what is set out in the matter complained of so materially misstates the facts as to defeat the defence of comment is in my view a matter for the jury.

However, the defendant must clearly state its position with regard to the concession made by Mr Leopold that he would not reply on any particular of the plaintiff's love for B. If this concession is merely that the plaintiff did not say he loved B in the romantic sense of the word, that is relevant to imputation 4(a). It is appropriate to direct the defendant to replead the particulars to identify the nature and scope of this admission, particularly with regard to imputation 4(b), because of the plea of contextual truth to this imputation.

This imputation does not need to rely upon admissions of love (whether truly stated or not). The sections of the matter complained of which eulogise B's physical appearance and talk about the gift of a television to Shorty Jamieson would in my view, independent of the errors in quoting the plaintiff, be sufficient, on Lord Porter's test, to warrant the matter going to the jury. The notorious facts pleaded demonstrate the horrendous nature of the rape and murder of Janine Balding, and, therefore, of the persons who would commit such a crime, and these indisputably correct facts should also be taken into account.

I remain perplexed by the defendant's withdrawing of the statements of fact that the plaintiff said he loved B. If no allegations are to be made by the defendant of factual material to support the claim of a perverse attraction for B, this concession needs to be made very clearly so as to avoid conflicts at the trial with the evidence to be led on the plea of contextual truth. The best way to achieve this is to require the defendant to provide particulars of the facts upon which the comment is made by pleading the facts relied upon to give rise for each of the imputations for which comment is pleaded.

While the precise nature of the plaintiff's conduct in relation to B requires to be particularised, any conduct of the kind identified in particulars 7, 8, 9, 10, and 12, could be conduct which a jury might consider would amount to a perverse attraction.

Imputations 6(a) and 6(c) both rely upon the fact that the plaintiff declared his romantic love for two of the Janine Balding rapist and murderers.

The plaintiff submits that the statements at lines 6, 37, 74, 95 and 109 are all statements of fact, not comment, and are all erroneous. There is no quote from the book, merely the statement that the plaintiff has declared his love for the two offenders in his book.

This is very much a borderline case. However, if one fact is sufficient to support the comment so as to make it fair, the failure to prove the remaining facts may not of necessity defeat the defence, for the reasons explained by Lord Porter in Kemsley v Foot.

The plaintiff does say in his book that he feels love and "a form of love" but makes it clear that in his mind at least, it is an altruistic love.

The defendant's failure to identify the specific factual matters for each of the imputations makes it difficult for me to see what the defendant's answer to the plaintiff's complaints are, particularly given the concession at T-38 that the defendant concedes the book does not say the plaintiff loved B. Once again, I am of the view that if the plaintiff says he loves Shorty Jamieson, albeit in an altruistic way, that may be, for the jury, sufficient accurate factual material. It is a weak case, but conformably with the principles of law enunciated by the High Court in Favell, I am reluctant to take the plea of comment from the jury at this early stage.

The imputation that the plaintiff has a perverse attraction towards the killers is not merely reliant upon the inaccurate statement that the plaintiff loves the two convicted rapists and murderers of Janine Balding. It also arises from the plaintiff's persistence in supporting these men at the cost of his career, and despite the distress of the Balding family.

A false statement of an admission of love for one or even both of these offenders would not, for the reasons enunciated by Lord Porter in Kemsley v Foot, deprive this imputation of a correct factual basis. To maintain support for convicted killers at the cost of one's career and despite the distress of the victim's family may, in the eyes of the jury, be sufficient to be evidence of perverse attraction.

Like imputation 6(a), this is a borderline imputation. The matter complained of depends strongly on the alleged admissions of the defendant. There is no other factual basis for saying the plaintiff is ridiculous.

The cartoon, however, refers only to Shorty Jamieson, not to B. Given the close relationship between this cartoon and the concept of "ridiculous", it may be sufficient for the jury that there is a particular for the plaintiff's statements about Shorty Jamieson.

The plaintiff's argument that the book has been misquoted ignores the fact that the plaintiff did say he felt "a form of love" for both and that he "loved" Shorty Jamieson. Unlike the selective misquoting in the matter complained of, the second matter complained of makes it clear that the plaintiff strongly believed in their innocence and was seeking to help them. The plaintiff's persistence in his beliefs despite it costing him his political career paints a picture of a man blinded by personal feelings. The nature of the perverse attraction is not necessarily romantic.

However, if the allegations about the admission of love for B are to be withdrawn, this should be clarified and the defendant should provide what particulars (if any) are relied upon in this regard.

The plaintiff submitted that the statements of Mr Iemma and Mrs Balding do not amount to comment. I reject these submissions. Mr Iemma says that the plaintiff "is entitled to his views" but that his views differs, and that the view of the community and the victim's family is that the book is "offensive". This is a clear statement of comment by Mr Iemma, in that he identifies and contrasts his own opinion (and that of others, including the Balding family) with the views of the plaintiff.

Mr McClintock SC conceded he had a harder road to hoe in relation to this publication, which quotes the book with more accuracy. There are still errors; for example, the talk back caller is quoted as putting it to the plaintiff that he "loves" all the killers (although in fact it was just B). The plaintiff complains that the reference to Begnell is left out, but the nature of the love the plaintiff felt is clear from the context. In addition, the plaintiff confirmed in an interview in The Australian that it was "true" that what he felt for them was "a form of love". The matter complained of goes on to talk about the plaintiff being "driven by justice issues". The Opposition law and order spokesman, Andrew Humpherson, says that the plaintiff has "this passion" which dominates his life and describes him as "weird". It also repeats the plaintiff's rejection of the idea that he is attracted to male prisoners.

The extracts from the plaintiff's book are not so distorted as to warrant withdrawal from the jury. The plaintiff's repetition of feeling a form of love for the killers of Janine Balding is accurately given. There is no reason to take the defence of comment away from the jury in relation to this publication. This is particularly the case in relation to imputation 9(b).

The plaintiff submits that the ex-convict who is quoted does not express the opinion that he himself believes the plaintiff is an idiot. This is clearly wrong. The unnamed ex-convict makes it clear that he agrees with this opinion. He had tried to warn the plaintiff that he had been "taken for a sucker" and "duped"; in other words, he was an idiot for believing in B's claims of Christian beliefs.

The opening words ("said he loves") could refer to the plaintiff's statements to The Australian. The kind of love the plaintiff feels is made clear in the matter complained of and it will be a matter for the jury to determine whether there is sufficient correctly stated factual material for both these imputations.

Mr Leopold confirmed in submissions that the defence of comment is not pleaded to this imputation.

I propose to deal only very briefly with the defence of fair comment at common law. The misstatements of fact may play a larger role in relation to this defence because of the requirement for fairness. However, since I am not prepared to strike out the statutory defence, and I have directed the plaintiff to replead in any event, it is my view that I should exercise caution and leave this defence to the trial judge, in the manner referred to by the UK Court of Appeal in McDonald's Corporation & Anor v Steel & Anor.

While I am not prepared to strike the particulars out, the defendant should replead the particulars of fact setting out which are relied upon for each imputation. If there is no reliance on admissions of feeling love for B in the book, but there is reliance on some other fact (such as, in relation to the third publication, the plaintiff's statements to The Australian) this should be clarified with precision.

As to costs, the plaintiff identified substantial flaws in the defence which necessitated repleading. Further amendment to the defence will be necessary. It is appropriate that the defendant pay the plaintiff's costs.

(1) Grant the defendant leave to file in 14 days an amended defence, to plead each of the statements of fact relied upon in relation to each of the imputations pleaded by the plaintiff for each publication (and imputations contained therein) to which the defence of comment is pleaded. (2) Defendant pay plaintiff's costs. (3) Plaintiff's application under Uniform Civil Procedure Rules 2005 (NSW) r.14.28 otherwise dismissed. (4) Timetable for further orders.

By JANET FIFE-YEOMANS LABOR MP Peter Breen has penned a sickening tribute to the killers of Janine Balding in which he talks about his realisation one night "under the stars" that he loved two of them.

The controversial MP, who switched to Labor after being wooed by Premier Morris Iemma to help shore up Upper House numbers, describes the vicious killers in a new book as having rosy cheeks, pleasant smiles or being hapless.

He declares the oldest of the three killers - Stephen "Shorty" Jamieson - to be innocent of the murder. Mr Breen calls "blue-eyed" Jamieson by his nickname Jamo. He bought him a television for his cell.

"Jamieson is gazing out the high-barred window behind me, his eyes reflecting blue sky," is how Mr Breen describes one jail meeting in his bizarre paperback, researched mainly in parliamentary time.

"I love Shorty Jamieson and I'm not afraid to say so."

The Iemma Government, already under fire for going soft on prisoners, will be further embarrassed by its star recruit lobbying for the release of three of the state's most notorious killers.

Jamieson, Matthew Elliot and a third man, B, were jailed for life and their files were marked "never to be released" for the 1988 abduction, rape and drowning of Ms Balding, 20.

Mr Breen, who swapped from independent to Labor after his arch enemy Bob Carr quit as premier, yesterday said Mr Iemma was "much more sensible in reviewing criminal convictions.

He said Mr Carr had been "irrational" over the three killers.

The Carr government passed laws cementing all "never to be released" prisoners in jail and closed down the controversial Innocence Panel after Mr Breen put up Jamieson's case for review.

Mr Breen also professes his love for the youngest killer, B, in his book, which he has self-published but which three mainstream publishers are said to be interested in.

"I love B and the statements causes me to blink at the stars," he writes in Life as a Sentence , which he claims is the "true story of the Janine Balding murder".

Mr Breen, who considered entering the priesthood, believes B, 14 at the time of the murder, is totally rehabilitated after being baptised in the swimming pool at Minda Detention Centre.

He ignores a prison psychiatrist who describes B as a charming psychopath. Of Elliott, Mr Breen refers to reports he is a "very impressive young man".

And he labels "hapless" a fourth man, W, convicted of raping Ms Balding and who has been convicted of two other abduction and rapes since his release from jail.

The book has outraged Ms Balding's family, police and victim's groups.

The Daily Telegraph By Janet Fife-Yeomans 'Premier Iemma has to act swiftly to restore public confidence - and the only fitting course of action would be for him to dump Mr Breen immediately.' Editorial: Page 14

THE gag used to stop murder victim Janine Balding screaming as she was raped and drowned is to be sent to the UK - at the expense of NSW Legal Aid - to be tested for DNA.

The move follows pressure from Labor MP Peter Breen who believes the gag holds the key to proving the innocence of Stephen "Shorty" Jamieson and will link fellow street kid Mark "Shorty" Wells to the murder.

Mr Breen's taxpayer-funded campaign to get the other Shorty continues despite two trials, a High Court appeal, an application for a judicial inquiry and an appeal to the now-defunct Innocence Panel.

Jamieson's two fellow murderers, Matthew Elliot and B, a juvenile at the time who cannot be named, at first told police the person with them was another street kid, Scott Agius.

It was a story they kept up until Agius produced six perfect alibis, including spending the entire afternoon and evening with a social worker.

Two weeks later, Stephen "Shorty" Jamieson was arrested on the Gold Coast and admitted to the murder in a police record of interview, which he signed and which was read back to him and witnessed by a JP.

He told how the group had met up at a drop-in centre at Wynyard that morning, decided to "get a sheila and rape her", took the train to Sutherland where they abducted Ms Balding as she got into her car.

Then Elliott and B switched their story and said that Mark "Shorty" Wells was the Shorty who was with them.

Wells, a diagnosed schizophrenic, dresses like an urban guerrilla and maintains he killed a priest when he was 15 by nailing him to a tree, despite being told by psychiatrists that he never did.

When interviewed by police, he also confessed to Ms Balding's murder. However, his "confession" was so full of holes that even Jamieson's own counsel conceded it was "demonstrably erroneous" in important respects.

However, Wells was known for wearing a black bandana. When Ms Balding was found half-naked and hogtied in a shallow dam at Michinbury, she had been gagged with a black head scarf.

Jamieson had told police that scarf belonged to a fourth man, known as W, also a juvenile. W was convicted of Ms Balding's abduction and rape but not murder. The Daily Telegraph, Tuesday, July 18, Page 14.

Tuesday, July 18, 2006 Iemma star on a loony crusade

FOR a Government that prides itself on its law and order platform, Premier Morris Iemma and his cohorts have made a monumental mess of our prison system.

After a week of revelations involving serial killer Ivan Milat's access to electrical goods and prisoners' rights to elective surgery, the Government has been left redfaced and scrambling to convince the people it is capable of handling the task of enforcing law in this state.

Now it emerges that Peter Breen, the Labor Party's star recruit who was brought in to control the Upper House, is using at least part of his time on duty to mount a crusade to free the killers of Janine Balding.

In florid passages punctuated by declarations of love for his criminal subjects, Mr Breen's book argues passionately that the men, sentenced to life in prison for the 1988 rape and murder of Ms Balding, are innocent of their heinous crimes.

The views are an affront to the family of their victim; and are completely out of step with the opinions of all right-thinking people across the state, who remain horrified at the depraved indifference Ms Balding's killers showed in the lead-up to her barbaric death.

Mr Iemma has to act swiftly to restore public confidence - and the only fitting course of action would be for him to dump Mr Breen from the party immediately. Such an action would send a message to the would-be author that his twisted logic has no place in the NSW Parliament and is not in anyway representative of the views of the majority of his constituents.

It might also give Mr Breen time to re-think his claims about Ms Balding's killers, and to consider the plight of her still-grieving family.

Second matter complained of The Daily Telegraph, Wednesday, July 19, Page 1 The Daily Telegraph

DISGRACED newly-independent MP Peter Breen is under investigation and risking criminal charges over his sick book, in which he said he loved two of Janine Balding's killers.

Mr Breen was dramatically forced to quit the ALP yesterday after The Daily Telegraph revealed the shocking contents of his book and Premier Morris Iemma asked the Attorney-General's office to step in.

He also refused a request from the ALP to apologise to Ms Balding's family.

The Crown-Solicitor's office is now investigating whether Mr Breen broke the law by naming two of Ms Balding's attackers, who were juveniles at the time of her murder in 1988.

In his book on the case, Mr Breen names one of the convicted murderers, B, and also W, who was convicted of abducting and raping Ms Balding.

Publishing the identity of juveniles - even when they are adults - carries a maximum penalty of 12 months' jail and a $5500 fine.

Mr Breen had earlier told The Daily Telegraph he had advice from the

Attorney-General's office that he was able to name the two men.

A spokesman for Attorney-General Bob Debus was yesterday unable to ascertain where that information came from.

He said the Crown Solicitor's office had been asked to intervene and had been sent a copy of the text. "It's a fairly complicated issue," the spokesman said.

Mr Breen continued to defiantly name the juveniles in radio interviews yesterday.

As he confirmed his resignation from the ALP yesterday - and his departure from politics next year - he conceded that his political career was all but over.

In a petty outburst, he refused to apologise and blamed Janine's mother, Bev Balding, for "going troppo" when he spoke up for the killers, who he wants freed.

After demanding Mr Breen's resignation, Mr Iemma referred the book, Life as a sentence: The true story of the Janine Balding murder , to the Attorney-General's office.

In the book, Mr Breen declares "Shorty Jamieson", the oldest of the three youths who abducted, raped and murdered Ms Balding, to be innocent.

He says he loves Jamieson and another man convicted of Ms Balding's murder, B. Both men and the third murderer, Matthew Elliot, were jailed for life, their files marked "never to be released".

Yesterday Mr Iemma was livid with his new recruit, who he wooed in May to shore up Labor numbers in the Upper House in a calculated gamble, despite Mr Breen's championing of convicted criminals.

It took just 73 days for the experiment to blow up in his face.

At 12.15 pm yesterday, Mr Iemma demanded Mr Breen's resignation in a telephone call.

At 1 pm, Mr Breen held a press conference to announce he had quit Labor and would continue as an independent, but ruled out contesting the next election, in March 2007.

However, Mr Breen, elected to the Upper House with just 1 percent of the vote in the infamous tablecloth ballot paper election of 1999, will walk away with a pension of about $55,000 a year for life.

Mr Iemma rang Mrs Balding yesterday to apologise personally for Mr Breen's comments, which he said were an insult to Janine Balding's memory and to her family.

"The sentiments expressed by Mr Breen in his manuscript are offensive to the Balding family and the wider community," he said.

"Peter Breen is entitled to his views but they don't reflect my views or the views of my Government of the Labor Party."

Mrs Balding said she was much happier that Mr Breen would be leaving politics next year.

"Janine once told someone who had wronged her that they would hear from her mother. Well, Peter Breen has heard from me," said Mrs Balding.

Editorial: Page 22 The Daily Telegraph, Wednesday, July 19, Page 22

Wednesday, July 19, 2006 MP goes - but not far enough

UPPER House twit Peter Breen is again an independent MP having yesterday been dumped by the Labor Party which cynically embraced him as its star recruit just 73 days ago.

He, however, says he will not quit the Legislative Council until March's election when he leaves politics to enjoy the rest of his life receiving a taxpayer-funded parliamentary pension.

Premier Morris Iemma asked him to leave the ALP after he revealed his love for two prisoners convicted of raping and murdering Janine Balding in a book he has written pleading for their release.

That he has exited the ALP in no way excused that party for encouraging him into its ranks when the Government needed Upper House support, rather, it reflects directly upon its grubby desperation to cling to power at all costs.

Mr Breen is, as he admitted in his maiden speech in March, 1999, one of several candidates elected on the shameful tablecloth ballot papers prepared to accommodate the proliferation of front parties which ran under misleading names.

He entered parliament with 0.2 per cent of the vote as the bearer of the dubious Reform the Legal System partys' banner. When its membership dwindled, he was left an Independent.

That should have been sufficient warning to the Government.

Instead of steering clear, the ALP appointed him to the Committee on the Office of the Ombudsman and Police Integrity Commission.

As Mr Breen agrees his election made a mockery of the electoral process he should resign now to make some amends to the people of NSW. Letters

The Daily Telegraph, Wednesday, July 19, 2006 Page 25

The Daily Telegraph, Wednesday, July 19, Page 25 What's News 1. Nelson Mandela turned 88 yesterday. In which year was this former political prisoner elected as the first black president of South Africa? 2. Name the state MP who has resigned from the ALP after it was revealed he had written about the killers of Janine Balding, saying he loved two of them. 3. Dennis Lillee, one of the all-time greats of cricket, turned 57 yesterday. How many Test wickets did he take in a career that ran from 1971 to 1984? 4. Madonna has said she will not include Australia on her current Confessions tour, because she has to get her children back to school. How many times has she been to Australia? 5. American pulp fiction writer Mickey Spillane has died at 88. Name the character he created for a series of novels beginning with I, the Fury in 1946. 6. Which high-profile rugby league player has been reprimanded by the NRL after TV microphones caught him swearing during a match last Sunday? ANSWERS 1: 1994. 2: Peter Breen. 3: Lillee took 355 wickets. 4: Just once, in 1993 for the Girlie tour. 5: Mike Hammer. 6: Andrew Johns.

Vote-Line Peter Breen, who says he loves two of Janine Balding's killers, has quit the ALP. Does he deserve to remain as an MP? Yes 1900 969 520 No 1900 969 521 Call costs 55c incl. GST. Mobile/pay phones extra. Newsconnect. Polls close 4 pm.

Third matter complained of Weekend Australian July 22-23, 2006, Page 1

MP with stars in his eyes for killers Caroline Overington INSIDE STORY

PETER Breen is a NSW parliamentarian with a disturbing, sympathetic interest in the fate of young men who have committed violent sexual offences.

He likes to meet them in jail and talk to them about their crimes - and this week, he released a book in which he declares his love for two of them.

"I'm sorry if people find this shocking," he tells The Weekend Australian . "But these men are nice blokes. I'm sorry if that offends people, but it's true."

Two of the prisoners that Breen "loves" are two of the men who raped, bound and drowned a 20-year-old woman, Janine Balding, in September 1988. The law still protects the identity of one of them, so he is known only as "B".

As a child, B once broke the neck of a crimson rosella and left it dead on the family's stone balcony, a sure sign of trouble afoot. He was the product of a broken home; his mother tried to put him in youth detention.

He ran away, and went to stay in a filthy squat in Sydney. While he was there, he told one of the other street kids he would teach him how to box. Instead, together with a friend, he tied the boy's hands in front of him with the coloured, plastic cords they hang in shop doors, strapped him to a chair, and belted the back of his head with a sledgehammer.

The victim managed to crawl to safety but there was so much blood on the walls that the boys had to leave the squat.

They spent the next day riding on trains: flipping through porn magazines, showing the pictures to other passengers and putting their feet up on the seats.

By now, there were five in their gang, including one girl, Carol Arrow, 15, and her 15-year-old boyfriend of five days. There was B, aged 14, and his friend, Matthew James Elliott, 16.

The oldest of the group was 22-year-old Stephen "Shorty" Jamieson, routinely described in press reports as a hideous creature.

Shorty's mother had been drunk practically throughout her pregnancy; he was born with fetal alcohol syndrome, with ape-like features, a flat, vacant face, and a strange, stunted body. He is only 122 cm tall and his IQ is about 65.

One of these boys said: "How about we get a sheila and rape her?"

Stars in his eyes for young killers INSIDE STORY From page 1

They got off the train at Sutherland station. When they saw Janine, they asked her for a smoke. She kindly stopped.

They showed her the knife and told her to get into the back seat of her 1979 blue-green Gemini, and they set out toward Sydney's busy F4 freeway.

Shorty Jamieson would later tell police: "The girl, Janine, was screaming, so I put the gag into her mouth. Then a bit further on, Matthew (Elliott) took the gag out of her mouth and he made her give him a head job. After a while (the driver) stopped the car and he got in the back and he made her give him a head job, too. Both told her that if she didn't give them head jobs they would stab her with the knife."

According to testimony given at the trial, as the car drove along, one of the boys in the back kept up a low, sing-song chant: "Nice night for a murder. Nice night for a murder." Janine begged them: "Just don't stab me." She also kept asking to be put out at the next corner. She said: "Let me out and I won't tell."

Instead, the driver pulled into a dark spot off the F4 freeway at Minchinbury, in Sydney's outer west. They pulled Janine out of the back seat, put her on the grass and raped and sodomised her.

"Then it was my turn," said Shorty. "I had sex with her."

"She was pretty worn out by now and wasn't screamin' as much any more."

The youngest boy, B, raped her, too, slapping her repeatedly because she would not "buck".

Then the 16-year-old said: "We've got to kill her."

They took rope from the boot of Janine's car. They tied her feet together with five turns of the cord before passing it up around her neck and down again, so she was effectively tied up like a ball.

They heaved her over a barbed wire fence and then pushed, dragged and rolled the terrified woman more than 100m, across the paddock, towards the dam.

Still alive, her face was pushed into the water. Peter Ellis, who performed the autopsy, reported there was dirty water in her airway, "indicating drowning".

They day after the murder, the boy, B, took police to the dam.

Back at home, her mother, Bev Balding, was waiting for news. It wasn't like Janine to go wandering. Her phone rang at 4.30 am.

She ran and pick it up, thinking; "They've found her." And then her world fell apart.

Jamieson, Elliott and B were convicted of rape and murder, and sentenced to life in jail.

None of these details is new to Peter Breen. Most of them are included in his new book, called Life as a Sentence: the True Story of the Janine Balding Murder . But he believes that Shorty has been wrongly convicted of the crime, and that the youngest boy B, now 32, should be freed.

In one strange paragraph, on page 239, he refers to talkback caller who said it appears Breen "loves" the killers. Breen responds: "The statement causes me to blink at the stars. It is a form of love, I suppose, to believe in a person and work hard for them in the hope they receive mercy as well as justice. I love Shorty Jamieson no less and I'm not ashamed to say so."

When these words were republished in Sydney's The Daily Telegraph this week, all hell broke lose.

Breen was forced to resign from the Labor Party, which he joined only in May.

In an interview with The Weekend Australian , Breen says he is "confused and amazed' by the week's events. But he won't withdraw the statement.

"It's true," he says. "What I feel for them is a form of love. I don't withdraw that."

Breen was born and raised Catholic but he is not talking about Christian love and forgiveness. He means what he says: "They are very nice people. If they are released, yes, of course, they can stay with me."

Breen was elected as a member of the Legislative Council in the NSW parliament as a member of his own Reform the Legal System Party, on the infamous "table-cloth ballot" in 1999.

He received 35,000 primary votes - a tiny number in a state with more than eight million people. "But they made a brilliant choice, those people," he said this week. "And it's appropriate that I represent minority interests, because I represent a very small number of voters." Breen is driven by justice issues. He is outraged by the so-called "cement" legislation passed by the Carr government in 2001 that effectively "cements" 10 men accused of vicious crimes in prison for natural life.

The men who killed Janine Balding are on the list; so, too, are the Murphy brothers, who murdered Anita Cobby.

"I realise it's not a popular cause," Breen says. "But the point is Janine Balding was killed by children. One of these boys was 14 years old and he had the mental capacity of a nine-or 10-year old. There is a principle of proportionality in sentencing, and when he committed that crime, the average sentence was 18 years. He deserves to be released. That boy is now a man who has standards and values that are very different. The lynch mob doesn't understand. He's deeply remorseful."

Opposition law and order spokesman Andrew Humpherson says Breen's views are disturbing.

"For some reason, he's got very sympathetic views for the most unpleasant people in our prison system," he says.

"It seems to be an obsession. He's just raised it constantly and regularly. His constituency is violent killers."

"And it's a bit rich of (Premier) Morris Iemma to say he had to go this week, because he's advocated these views many times over the years. The Labor Party knew exactly what it was getting."

Breen switched to Labor on May 4, but had been voting with them on most issues for years.

Iemma this week asked for, and received, Breen's resignation.

Humpherson says Breen "comes across as a reasonable human being but he's clearly got this passion and it drives him and dominates his life and, frankly, I think he's a very weird MP".

Breen does, indeed, come across as a reasonable human being. He speaks clearly, firmly, without hysterics. But most people would regard his views as abhorrent. For example, of the terrible rape and murder of Janine, he says: "You know, as crimes go, it's not in the worst category of offences."

The pack rape and murder of a defenceless woman aged just 20? "You say pack rape and it sounds like multiple offenders," he says. "But she was only raped by two offenders." Later, he says: "She was not bludgeoned. And they were children; they had low IQs."

He rejects the idea "that I'm somehow attracted to prisoners, that violent offenders have some kind of allure for me".

Yet he campaigns pretty much constantly on behalf of 10 men locked up for crimes of terrible sexual violence against women.

"That's a coincidence," he says. "It just happens that all 10 of the men who are cemented into prison under this legislation, the victims were women. But to say I have some sort of illicit affection for men who commit these crimes, that's not true. The idea that this is a passion, like a physical passion, is wrong."

Breen has been married and divorced and now has a partner, who, he says, "would be mortified by the idea that this was passionate love". "I have never, in my whole life, been physically attracted to man. I can't think of anything more repellent than another man's buttocks."

Humpherson says he does not object to Breen's basic principles: that all people deserve a fair trial; that evidence of wrongful conviction deserves to be explored; that mercy and redemption are an important part of the justice system. It is true, he acknowledges, that NSW police in the 1980s concocted evidence and beat criminals to get confessions, and he says all avenues of appeal deserve to be explored.

"But Breen is not your normal person," he says. "He's an advocate for killers, and he wants to meet them and talk to them. Like I say, he's just a very weird MP."

There is concern about the company he keeps, too. Breen's book about Janine Balding is dedicated to the memory of "human rights advocate, mentor and friend, John Marsden".

Like the colourful Sydney lawyer who died earlier this year, Breen spent two years at the seminary, studying to be a priest, and he went to work for Marsden in 1969. They remained friends "who fought all the time". "I miss him, you know," Breen says. "He would have loved all this."

One who definitely does not "love all this" is Bev Balding.

She will never recover from the shock of her daughter's murder, and its aftermath. The trial was aborted three times - twice in the first few days and again after six weeks, when the boys said the police had the wrong Shorty.

She sat through horrific evidence: the boys at first denied raping Janine, but forensics experts took swabs from her vagina and anus, extracted cells from the semen they found and matched it to the boys' blood.

Janine's room has stayed empty all these years. She was a feminine woman. She'd left behind hair curling tongs and knitting patterns. She would now be 38, perhaps with a couple of kids.

Breen's campaign to have the killers freed is deeply distressing to Bev Balding, who wanted them hanged. "I think he's gullible, listening to criminals," she says, from Wagga Wagga in southern NSW.

Breen does appear to be the thrall of B, the boy who has grown into a tall, powerfully built man. Prison photographs show him with a wide, charismatic smile, and he is a born-again Christian.

But charisma has always been a gift to the malevolent. A psychiatrist's report describes B as "a charming psychopath".

I ask Breen what he meant when he wrote that the statement about loving B caused him to "blink at the stars"? There are clear, romantic overtones.

"Well, there's no secret message there," Breen says. "I can't answer you. I simply don't know. The book is just in draft form. Perhaps I'll take it out."

Breen must know he is rowing uphill in his campaign to get B released: another of the boys who served time for the rape (but not murder) of Janine was released after eight years. Eleven months later, he was back in prison, having committing another violent sexual offence.

Many in the community would not take that risk again.

Fourth matter complained of The Daily Telegraph, Tuesday, July 25, Page 4 Balding murderer 'duped an idiot MP'

ONE of the murderers who MP Peter Breen said he loves has said the feeling is not mutual.

"He thinks Breen is an idiot," said an ex-prisoner who used to share a cell with B, the youngest of Janine Balding's killers.

The ex-inmate, who asked not to be identified, told The Daily Telegraph that B blatantly exploited the disgraced independent MP's devout religiousness.

"When I first brought up the subject, B said that Breen would believe everything he said if he put in a few amens and praises that lords into it," the man said.

"He [B] never opened the Bible in all the time we were three-up in a cell. He never tried to minister to us."

"If he was really a Christian, he wouldn't have done half the things he did in jail, such as standing over people and scoring drugs."

"However Mr Breen seems to genuinely believe in him."

Premier Morris Iemma forced Mr Breen to resign from the Labor Party over comments he made in a book about his love for B and another of the Balding killers Stephen "Shorty" Jamieson.

The man said he tried to return Mr Breen's call when the MP rang him after the scandal broke last week.

"If I could speak to him, I would tell him 'mate, you have been taken for a sucker. You've been duped,'" he said.

He said Jamieson believes that Mr Breen is his saviour.

Mr Breen has been campaigning for Jamieson's conviction to be overturned and for B, the country's youngest lifer, to be released from jail.

Meanwhile, mystery surrounded the whereabouts of an absent Mr Breen yesterday.

Mr Breen told a reporter that he had been admitted to Sydney's St Vincent's Hospital with a "brain snap" however the hospital has no record of him.

Mr Breen's office said they had not heard from him, which was "very strange".

1. The plaintiff is a member of Parliament (line 5); 2. the plaintiff is a member of the Labor Party (line 5); 3. the plaintiff wrote a book entitled, " Life as a Sentence: The True Story of the Janine Balding Murder " (the Book) (the subject matter or substratum to which this fact relates is the plaintiff's book, which is referred to throughout the first matter complained of; but see also lines 5 - 7 and 33 - 34); 4. the Book is about the killers of Janine Balding (the Killers) (lines 5 - 7); 5. in the Book, the plaintiff states: " One ambivalent caller says it sounds like I love B and the statement causes me to blink at the stars. I remember how much Jack Begnell loves B and is committed to his cause. It is a form of love, I suppose, to believe in a person, and to work hard for them in the hope they receive mercy as well as justice. I love Shorty Jamieson no loss and I'm not ashamed to say so " (at page 239). (the subject matter or substratum to which this fact relates is the plaintiff's book, which is referred to throughout the first matter complained of; but see also line 17); 6. the plaintiff was an Independent member of Parliament prior to joining the Labor Party (the subject matter or substratum to which this fact relates is the plaintiff's political affiliation; see lines 24 - 25); 7. in the Book, the plaintiff describes one or more of the killers as having rosy cheeks, pleasant smiles or being hapless (lines 8 - 10); 8. the plaintiff states in the Book that one of the killers, Stephen Jamieson, is innocent of the murder for which he is imprisoned (lines 11 - 12); 9. the plaintiff calls Stephen Jamieson by his nickname, Jamo (line 12); 10. the plaintiff bought Stephen Jamieson a television for his cell (line 13); 11. in the Book, the plaintiff describes meeting the killers (who included Stephen Jamieson) in gaol (the subject matter or substratum to which this fact relates is the plaintiff's acquaintance with killers of Janine Balding; see lines 14-16); 12. in the Book, the Plaintiff states: " Jamieson is gazing out the high-barred window behind me, his eyes reflecting blue sky. " (lines 14 - 16); 13. the plaintiff mainly conducted research for the Book in Parliamentary time (line 15 - 16); 14. the plaintiff is lobbying for the release of the killers from gaol (lines 18 - 20); 15. the Killers were gaoled for life and their files were marked "never to be released" for the 1988 abduction, rape and drowning of Janine Balding (lines 21 - 23); 16. Janine Balding was 20 years old when she was abducted, raped and drowned in 1988 (lines 21 - 23); 17. on 17 July 2006, the plaintiff said that: (a) Morris Iemma was "much more sensible" in reviewing criminal convictions (lines 24 - 26); and (b) Bob Carr had been "irrational" over the killers (line 27); 18. during Bob Carr's term as Premier of New South Wales, the New South Wales government: (a) passed laws cementing in jail all prisoners whose files had been marked "never to be released" (lines 28 - 29); and (b) closed down the Innocence Panel after the plaintiff submitted Stephen Jamieson's case to the Innocence Panel for its review (lines 29 - 30); 19. the plaintiff claims that the Book is the true story of Janine Balding's murder (lines 33 - 34); 20. the Book is self-published (lines 31 - 32); 21. the plaintiff considered entering the priesthood (line 35); 22. B was baptised in the pool at Minda Detention Centre (lines 35 - 37); 23. the plaintiff believes that B is rehabilitated after being baptised in the pool at Minda Detention Centre (lines 35 - 37); 24. a prison psychiatrist described B as a "charming psychopath" (line 38); 25. the plaintiff has ignored a prison psychiatrist's description of B as a "charming psychopath" (line 38); 26. reports state that Matthew Elliott is a "very impressive young man" (lines 38 - 39); 27. the plaintiff has referred to reports stating that Matthew Elliott is a "very impressive young man" (lines 38 - 39); 28. W was convicted of raping Janine Balding (line 40); 29. W has been convicted of two other abduction and rapes since his release from gaol (lines 40 - 41); 30. the plaintiff has described W as "hapless" (lines 40 - 41); 31. the Book has outraged Janine Balding's family (line 42); 32. the Book has outraged police (line 42); 33. the Book has outraged victim's groups (line 42); 34. a black head scarf was used to stop Janine Balding screaming as she was raped and drowned (the Gag) (lines 49 - 50); 35. Janine Balding was found half-naked, hogtied and gagged with the Gag in a dam at Minchinbury (lines 77 - 79); 36. the Gag is to be sent to the United Kingdom for DNA testing (lines 49 - 51); 37. the plaintiff believes DNA testing of the Gag will prove Stephen "Shorty Jamieson's innocence and link Mark "Shorty" Wells to Janine Balding's murder (lines 52 - 54); 38. the plaintiff is embarking on a taxpayer-funded campaign to find the "Shorty" who murdered Janine Balding (line 55); 39. Stephen Jamieson remains convicted of Janine Balding's abduction, rape and murder despite: (a) two trials; (b) a High Court appeal; (c) an application for a judicial inquiry; and (d) an appeal to the Innocence Panel (lines 55 - 57); 40. the plaintiff is conducting a taxpayer-funded campaign to prove the innocence of Stephen Jamieson (lines 52 - 57); 41. killers of Janine Balding told police that Scott Agius, a street kid, was with them at the time of the abduction, rape and murder of Janine Balding (lines 58 - 60); 42. Scott Agius produced six alibis, including being with a social worker on the afternoon and evening of Janine Balding's rape, abduction and murder (lines 61 - 62); 43. Matthew Elliott and B changed their story and told police that Mark "Shorty" Wells was with them at the time of the abduction, rape and murder of Janine Balding (lines 69 - 70); 44. Mark "Shorty" Wells is a diagnosed schizophrenic and confessed to murdering Janine Balding in a police interview (lines 71 - 74); 45. Stephen Jamieson's counsel conceded that Mark "Shorty" Wells' confession was demonstrably erroneous in important respects (lines 74 - 76); 46. Mark "Shorty" Wells was known for wearing a black bandana (line 77); 47. Stephen Jamieson confessed to police that he, with others, abducted, raped and murdered Janine Balding (lines 63 - 68); 48. Stephen Jamieson signed a police record of interview containing the confession referred to in paragraph (46) above in the presence of a justice of the peace (lines 63 - 65); 49. Stephen Jamieson told police that the Gag belonged to W (lines 80 - 81); 50. W was convicted of the abduction and rape of Janine Balding (line 81); 51. the plaintiff is using Parliamentary time to campaign for the Killers' release (lines 92 - 94); 52. in the Book, the plaintiff states that the Killers are innocent of the abduction, rape and murder of Janine Balding (lines 95 - 97); 53. the plaintiff authored the entire contents of the Book (the subject matter of this fact is the Book referred to throughout the first matter complained of); 54. the abduction, rape and murder of Janine Balding was one of the most disgusting, vicious, and cruel crimes in recent New South Wales history (this is a matter of contemporary history, the plaintiff also relies upon the facts set out in Schedule 3, (c) - 21); and 55. the plaintiff gave a speech to Parliament supporting the Killers and their release from gaol (as to the subject matter to which this fact relates, see 50, above).

SCHEDULE 2 1. On 18 July 2006 the plaintiff quit the Labor Party (line 9); 2. New South Wales Premier Morris Iemma asked the plaintiff to resign from the Labor Party (lines 44 - 45); 3. The request by the Premier for the resignation came almost immediately after the revelation in the Daily Telegraph of the plaintiff's statement in his book that he loved Stephen Jamieson (a killer of Janine Balding) and other contents of the Book in which the plaintiff expressed very strong support for, empathy with and/or sympathy for the Killers (this fact is partly implied and/or indicated by the subject matter and/or substratum to which this fact relates, the Book, referred to in lines 4 - 11; and is substantially expressed in lines 6 - 11, 35 - 36 and 47); 4. the Labor Party asked the plaintiff to apologise to Janine Balding's family (line 12); 5. the plaintiff refused a request from the Labor Party to apologise to Janine Balding's family (line 12); 6. on 18 July 2007, the plaintiff confirmed his resignation from the Labor Party and his departure from politics in 2008 (lines 28 - 29); 7. the plaintiff: (a) refused to apologise to Janine Balding's mother, Beverly Balding (line 30); and (b) accused Beverly Balding for "going troppo" when he campaigned for the Killers (lines 30 - 31); 8. in the Book, the plaintiff states that Stephen Jamieson is innocent (lines 35 - 36); 9. in the Book, the plaintiff says he loves B and Stephen Jamieson (line 47); 10. in the Book, the plaintiff pleads for the release of two convicted criminals (lines 74 - 76); 11. Morris Iemma telephoned Beverly Balding to apologise for the plaintiff's comments (lines 51 - 53); 12. the plaintiff authored the entire contents of the Book (the subject matter of this fact is the Book referred to throughout the first matter complained of); and 13. the abduction, rape and murder of Janine Balding was one of the most disgusting, vicious, and cruel crimes in recent New South Wales history (this is a matter of contemporary history, the plaintiff also relies upon the facts set out in Schedule 3, (c) - 21). SCHEDULE 3 1. The plaintiff is a New South Wales parliamentarian (line 3); 2. the plaintiff had an interest in the fate of young men who have committed violent sexual offences (lines 3 - 4); 3. the plaintiff visited men in gaol who have committed sexual offences and talks to the men about their crimes (lines 5 - 6); 4. the plaintiff liked to visit men in gaol who have committed sexual offences and talk to them about their crimes (lines 5 - 6); 5. the plaintiff has released the Book of which he authored the entire contents (expressed in lines 5 - 6; and relating to a subject matter indicated in the third matter complained of, that subject matter being the Book); 6. in the Book, the plaintiff declares his love for men who have committed sexual offences (lines 5 - 6); 7. the plaintiff thought the men who have committed sexual offences are nice blokes (lines 7 - 8); 8. in the Book, the plaintiff declares his love for a killer of Janine Balding (lines 9 - 10 and 78 - 79); 9. one of the killers is B (lines 10 - 11); 10. when B was a child: (a) he broke the neck of a crimson rosella and left it dead on the balcony of his family's home (lines 12 - 13); (b) his mother tried to put him in youth detention (lines 13 - 14); (c) he, with another youth, hit a boy in the back of his head with a sledgehammer (lines 16 - 19); 11. in September 1988, five people including B, Stephen Jamieson and Matthew Elliott caught a train to Sutherland station (the group) (lines 22 - 28 and line 37); 12. when they got off the train, some members of the group saw Janine Balding and asked her for a cigarette (lines 37 - 38); 13. members of the group showed Janine Balding a knife and forced her into the back seat of her 1979 blue-green Gemini (lines 39 - 40); 14. the group travelled in the car with Janine Balding towards the F4 freeway (lines 39 - 40); 15. in the car, Stephen Jamieson put the Gag onto Janine Balding's mouth (lines 41 - 42); 16. Matthew Elliott and another man made Janine Balding perform oral sex on them (lines 42 - 44); 17. the driver of the car pulled off the F4 freeway at Minchinbury (lines 50 - 51); 18. one or more members of the group pulled Janine Balding out of the Gemini and put her on the grass (lines 51 - 52); 19. some members of the group, including B and Stephen Jamieson, sexually assaulted Janine Balding (lines 42 - 45, 53 and 55 - 56); 20. Janine Balding was tied up with rope (lines 58 - 60); 21. Janine Balding was taken at least 100 metres across a paddock towards a dam (lines 61 - 62); 22. one or more members of the group pushed Janine Balding's face into the water in the dam (line 63); 23. Peter Ellis performed an autopsy on Janine Balding (line 63); 24. Peter Ellis reported there was dirty water in Janine Balding's airway which indicated drowning (lines 63 - 64); 25. the day after Janine Balding's murder, B took police to the dam (line 65); 26. Jamieson, Matthew Elliott and B were convicted of rape and murder (lines 69 - 70); 27. Jamieson, Matthew Elliott and B were sentenced to life in gaol (lines 69 - 70); 28. the plaintiff knew of the details of the rape and murder of Janine Balding, having included those details in the Book (lines 71 - 72); 29. the plaintiff believed that Stephen Jamieson has been wrongly convicted of the crime (lines 72 - 73); 30. the plaintiff believed B should be freed (lines 72 - 74); 31. the plaintiff joined the Labor Party in May 2006 (line 82); 32. Morris Iemma asked the plaintiff to resign from the Labor Party (line 117); 33. the plaintiff has resigned from the Labor Party (lines 82 and 117); 34. the plaintiff will not withdraw the statement that he loved a killer or killers of Janine Balding (lines 83 - 84); 35. in an interview with the Weekend Australian the plaintiff said it was true that he felt a form of love for the killers of Janine Balding and that he would not withdraw that statement (lines 84 - 85); 36. the plaintiff said words to the following effect: " What I feel for them is a form of love. I don't withdraw that. " (line 85); 37. the plaintiff said B and Stephen Jamieson are very nice people (lines 87); 38. the plaintiff said B and Stephen Jamieson can stay with him if they are released from gaol (lines 87 - 88); 39. in 1999, the plaintiff was elected as a member of the Legislative Council in the New South Wales Parliament as a member of his own Reform the Legal System Party (lines 89 - 91); 40. in 2001 the Carr government passed legislation that effectively cements ten (10) men accused of crimes in prison for the term of their natural life (lines 95 - 97); 41. the legislation referred to in (40) above applies to Janine Balding's killers (lines 98 - 99); 42. the plaintiff does not support the legislation passed by the Carr government in 2001 that keeps (ten) 10 men accused of crimes in prison for the term of their natural life (lines 95 - 97); 43. the plaintiff thinks B deserves to be released from gaol because: (a) B was 14 years old at the time of Janine Balding's murder (lines 72 - 74, 100 - 105); and (b) the plaintiff thinks B had the mental capacity of a 9 or 10 year old at the time of Janine Balding's murder (lines 100 - 105); 44. the plaintiff said words to following effect regarding the rape and murder of Janine Balding: (a) "you know, as crimes go, it's not in the worst category of offences" (lines 123 - 124); (b) "she was only raped by two offenders" (lines 126 - 127); (c) "she was not bludgeoned" (line 127); and (d) "and they were children; they had low IQs" (lines 127 - 128); 45. the plaintiff campaigns on behalf of ten (10) men who are in gaol for sexual violence against women (line 131 - 132); 46. at the trial in relation to the murder of Janine Balding, evidence was adduced that: (a) the accuseds initially denied raping Janine Balding (line 159); (b) forensic experts took swabs from Janine Balding's vagina and anus, extracted cells from the semen they found and matched it to the boys' blood (lines 159 - 161); 47. Bev Balding is the mother of Janine Balding (lines155 - 156); 48. Bev Balding wanted Janine Balding's killers hanged (line 165 - 166); 49. a psychiatrist's report described B as a "charming psychopath" (lines 171 - 172); 50. the plaintiff is campaigning for B's release from gaol (line 177); 51. a boy who was imprisoned for the rape of Janine Balding was: (a) released after eleven (11) years; (b) committed another sexual offence; and (c) was back in gaol eleven (11) months later (lines 177 - 180); and 52. the abduction, rape and murder of Janine Balding was one of the most disgusting, vicious, and cruel crimes in recent New South Wales history (this is a matter of contemporary history). SCHEDULE 4

1. an ex-prisoner used to share a cell with B (the ex-prisoner) (lines 5 - 6); 2. during the time the ex-prisoner and B were in a cell together, B never: (a) opened the Bible (line 11); or (b) ministered the ex-prisoner (lines 11 - 12); 3. the plaintiff resigned from the Labor Party (lines 16 - 18); 4. the plaintiff made comments in the Book about his love for a killer of Janine Balding (lines 16 - 18); 5. the plaintiff telephoned the ex-prisoner after the plaintiff quit the Labor Party (lines 16 - 20); 6. the plaintiff has been campaigning for Stephen Jamieson's conviction to be overturned (line 124); 7. the plaintiff has been campaigning for B to be released from gaol (line 125); 8. Stephen Jamieson holds the belief that the plaintiff is his saviour (line 123) (it is to be inferred from that fact that the plaintiff so conducted himself as to encourage that belief); 9. the plaintiff authored the entire contents of the Book (the subject matter of this fact is the Book referred to throughout the first matter complained of); and 10. the abduction, rape and murder of Janine Balding was one of the most disgusting, vicious, and cruel crimes in recent New South Wales history (this is a matter of contemporary history). ******

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