But there were equally compelling reasons to take an alternative course, as the Crown solicitor’s office suggested. On grounds that evidence would be more straightforward, that cases could be resolved quickly, and that there was a fortuitous distinction to be made between obscenity and indecency, the Crown solicitor’s office suggested that Eric Willis persuade the New South Wales attorney-general to institute an ex officio indictment against Thorburn and Grainger alone. Under this ‘uncommon’ plan, Grainger would be charged with selling an obscene publication, and Thorburn would be charged with publishing an indecent one.53
It was an egregious suggestion that would not survive the scrutiny of a week. It would have averted committal hearings at which Grainger or Thorburn would ordinarily have the opportunity to test the evidence against them; it plainly would have outraged the public; and it would certainly have provided fodder for Penguin and Michie to criticise the capriciousness of the censorship authorities. On 17 September, the Crown solicitor’s office recanted. ‘It was felt that, from both the practical point of view and a political point of view,’ ran the judicious record of this conversation, ‘there could be considerable criticism of any deprivation of rights of defendants in this important case. It is the view of the Crown, therefore, that the normal processes should be adopted.’
Now Angus & Robertson manoeuvred to position itself as the subject of the test case. Hugh Jamieson, an art-loving litigation solicitor at Allen Allen & Hemsley who was handling the case, wrote to the Crown solicitor’s office to have Angus & Robertson substituted in Grainger’s place.54 Officials seized on the offer: the bookseller had offered to make ‘certain formal admissions’ about the circumstances of the sale of Portnoy in exchange for an assurance that no proceedings would be instituted against Grainger or any other employee.
What was there to lose in accepting this? It was unlikely that proceedings against Grainger would result in jail time, given that he had been carrying out his employer’s instructions when he had sold Portnoy. What would be the good in pursuing him, then? There were only two reasons to pursue Grainger: to underscore the importance of the matter, and to provide a deterrent for publishers and sellers, to force them to think again about defying the kind of ‘clear warning’ that had been given by the government.
Neither reason proved compelling. The Crown solicitor decided that ‘the companies are the principal offenders and it does seem desirable to have the “test” cases against them rather than their employees.’ He recommended that once there was agreement with Allen Allen & Hemsley on a set of formal admissions, the government make the deal.55 Willis approved the new course of action — and, in doing so, he ensured that Angus & Robertson, well-resourced, reputable, and wholly determined to fight, would be the test case for Portnoy in New South Wales.56
And what of the twenty other defendants? The Crown solicitor had a plan worked out: lay the charges, and then have them adjourned until resolution of the test case. After a fortnight of embarrassment and criticism, Willis was happy to approve a course of action that would allay suggestions of impropriety. ‘Definitely,’ he wrote of this plan. Do it, he added, ‘as soon as possible’.57
His officials tried, but the proceedings were halting. On 13 October, the summonses against Angus & Robertson came up for hearing at the Court of Petty Sessions, on Liverpool Street, but were adjourned by agreement until a committal hearing on 14 December. That hearing would determine whether or not there was prima facie evidence to hold a full-scale trial against Angus & Robertson. Two weeks later, on 26 October, the police sought an order in the Court of Petty Sessions to have the seized copies of Portnoy destroyed, and Reginald Barrett had to rush, at the last minute, to have the matter adjourned until 14 December.58 By now, the issue was boiling down to its essentials: by tacit agreement, the summonses against the other defendants would only be mentioned — nothing more. They would wait until the case against Angus & Robertson had been resolved.
***
The preparations in New South Wales were echoed in Victoria. Arthur Rylah was determined to make an example of Penguin. He had read Portnoy by now, and regarded it as ‘a most obscene and objectionable book’.59 His officials sought to have the Victorian Vice Squad allowed access to the reports written about the novel by National Literature Board of Review members, and Rylah, too, pressed for that access: the opinions cited therein could be of use in the trial, which they wanted before the end of the year.60
Penguin’s lawyers stepped up their preparations. Strategies and tactics were honed, and prospective witnesses were approached and tested to see how they would stand up to questioning. Penguin’s solicitor, David Walsh, partner at Melbourne establishment firm Mallesons, was already well into the work of preparing the case and working with the barristers who would lead the defence.
But there was no let-up in the public offensive that Michie and Penguin were waging. Of the opinion that ‘there is a lot of re-thinking going on by the various State authorities on censorship’, Michie decided to write an article in the Bulletin to influence that thinking.61
It was a sustained and caustic attack on the censorship system. Writing that censorship was the product of a ‘strong, wowser tradition’ that relied on intimidation and confusion to maintain its sway, Michie argued that its foundations and mission were a farce. The concept of community standards, he wrote, was worthless.
The National Literature Board of Review was qualified to advise on literary merit, but the invitation of successive Customs ministers for it to act as a judge of community standards was ‘completely inappropriate’ in light of the board’s composition. ‘Any body that was set up to assess community standards should contain representatives from the younger section of the community,’ Michie argued. What eventuated was a ‘subjective and uninformed personal appreciation’ of what might be community standards: ‘No evidence is allowed to establish what are in fact the community’s standards.’
The court system was similarly inadequate. Comparisons with books that were available were not permitted, and the use of a jury, which could go ‘some way toward establishing a community standard’, was precluded in all states but New South Wales. Nor were the supposed offences to community standards ever real: prosecutions were hypothetical only, based on feeling, and verdicts were based on the ‘small, subjective reflection of the taste or moral outlook of individual judges’.
Michie admitted that there were legitimate grounds for censorship — in particular, to protect children from matter that was ‘adverse to their own moral or physical wellbeing’ — but argued that censorship laws needed to be overhauled: censorship should go no further than was absolutely necessary.
Michie did not mention Portnoy, but he made it clear that the impending trials were fundamentally wrong. Legislation on the exhibition of sex, violence, and cruelty was applied indiscriminately, irrespective of purpose, he pointed out. Someone who gave schoolgirls the ‘most vile and nauseating writings imaginable’ would be liable for a maximum $10 fine or three months’ imprisonment, but someone who published a book of great literary merit that ‘might tend to induce unchaste or immodest thoughts’ could be imprisoned for up to two years or pay a $200 fine. New books that were of literary merit were discriminated against, as the recognition of that literary merit was impossible to establish if they were banned.
He did not hold back from criticising the motives of those in charge of the censorship system. ‘It may in fact suit those opposed to censorship reform to maintain the present legislation,’ he wrote, ‘because of the scope its defects give for heading off “unacceptable” publications by threats rather than run the risk of possible political embarrassment by prosecution in the courts.’ The overall effect of this system was ‘to turn Australia into the Alabama of the literary world’.62
It was a bullish and blunt argument. Followed, a week later, by the order of a 50,000-copy reprint of Portnoy, it signalled the approach Penguin would ta
ke in a few weeks’ time, as the first of the Portnoy trials began.63
CHAPTER 9
Literature and liberty
The first Portnoy trial began at 10.12 am on Monday 19 October 1970.1 In the crowded, tizzy-pink courtroom of the Melbourne Magistrates’ Court, on the corner of Russell Street and La Trobe, proceedings opened quietly, with the lawyers defining the contest at hand and setting the rules on what they would and would not discuss.
Then Leonard Flanagan began to rail against Portnoy: ‘When taken as a whole, it is lewd; as to a large part of it, it is absolutely disgusting both in the sexual and other sense; and the content of the book as a whole offends against the ordinary standards of the average person in the community today — the ordinary, average person’s standard of decency.’ In tones that were strident and ringing, he declared Portnoy’s Complaint to be obscene. It was obscene by its nature. It was obscene by its subject matter. It was obscene by its undue emphasis of sexual matters. ‘This book is basically a book about sex, sexual matters,’ Flanagan went on, ‘and not restricted to just sexual behaviour between opposite sexes but to sexual behaviour between the same sexes, and to a very large extent the sexual behaviour of one person with himself in terms of his masturbation and matters of that nature.’2
A quick and intelligent man who had been educated by the De La Salle Brothers at Malvern and studied law at the University of Melbourne, Flanagan had been only thirty-one years old when he was appointed Crown prosecutor in 1965. At the time, his youth had prompted concern and amusement at the Bar. But his suitability for the role had only become more apparent in the years that had followed. Tough and shrewd, with an Irish-Catholic conservatism that could make him seem a little older than he was, ‘Lennie the Lip’ Flanagan was an apt prosecutor for Portnoy’s Complaint: as one witness would recall, he seemed personally outraged by the book. ‘His perversions of that practice,’ he shuddered, when discussing Portnoy’s masturbatory habits.
‘The defence will be that this book is not obscene,’ said Peter Brusey QC in turn. A tall, thin, English-born barrister best known for representing Ronald Ryan during his last-ditch appeals against the death sentence imposed in 1967 by the Bolte government, Brusey was Penguin’s lead counsel. At the Bar he was regarded as articulate, charming, measured, and erudite: a man of integrity. While his chief expertise lay in equity law, Brusey had notable experience in obscenity cases: he had unsuccessfully defended actor Charles Little during the controversy over the play The Boys in the Band.
Brusey’s junior, Stephen Charles, aged thirty-three, also possessed this interest in obscenity, though he had started on the opposing side. When the charges against Little and his fellow actors were initially dismissed on grounds of triviality, it had fallen to Charles to lead the Crown’s appeal. His argument in that appeal was logically impeccable: if one agreed that the word fuck was obscene in any context, it could be no trivial offence when it was used over and over again, before audiences of hundreds of people, as repeat performances of the play demanded. Mr Justice Douglas Little, hearing this in the Supreme Court, leapt to agree, and convicted the Boys in the Band actors on that basis. Charles took satisfaction from the craft of his argument, but was distressed by its success. It was well-known that Little had walked to a newsvendor outside the Supreme Court building the evening after the trial and, within deliberate earshot of a group of barristers, invoked one of the contentious lines from the play: ‘Who do I have to fuck to get a newspaper around here?’ The hypocrisy had been widely noted, and confirmed Charles’s existing interest in defending people charged with obscenity crimes.
‘I didn’t see any potential damage to people from the sorts of things that were then being held up as dangerous,’ he recalled. ‘I thought works like Portnoy’s Complaint were good for people to read. I was honoured to be asked to take part in the trial.’3
So were the witnesses coming to appear on Penguin’s behalf. They would come to reinforce the foundations of its defence: that the novel was possessed of literary merit, and that it would corrupt or deprave no one. John Michie had written to Graham C. Greene to emphasise that this would be the focus. ‘Apart from literary merit,’ Michie wrote, ‘the Prosecution’s main attack will be based on the effect of the book on adolescents, and [so] we will be producing a number of eminent psychiatrists to testify to this.’4
Both points appeared in Brusey’s submissions that morning. After emphasising that Portnoy’s Complaint was not obscene, Brusey declared that Penguin would demonstrate that it possessed recognised literary merit and that any argument about its potential to corrupt or deprave was mistaken.
After an hour and a half, the wrinkled and puzzled magistrate, Ewen Ross, adjourned the court so he could read the novel. When he resumed, at 2.15 the next afternoon, Tuesday 20 October, Flanagan opened his case proper by aiming to set literary merit aside. Nothing of the novel’s artistic worth was relevant, he said. ‘The law here is clear. You cannot, by skilfully dealing with some matter which is pure filth, [by] describing it pleasantly, change it from the very nature of what it is. It is still filth.’ Roth’s reputation and ability were immaterial. The literary merit was irrelevant. All of the witnesses that Penguin would summon were wasting their time. All that mattered was the book’s obscenity — and that was plain.
Flanagan offered proof: a page on which he had tabulated, for the convenience of the court, every ‘sex reference’ and ‘four-letter word’ to appear in the novel. According to this list, there were such references and words on 125 of the book’s 274 pages. Flanagan had even calculated the percentages: 28.1 per cent of the book’s pages contained sex; 17.5 per cent contained four-letter words.
Next, the prosecutor sketched a connection between the novel’s obscenity and Penguin’s decision to publish it. An integral part of his case, Flanagan said, was Penguin’s distribution of Portnoy without any care for the age of purchasers or their susceptibility to immoral influences. There had been no plan to restrict sales of the book, no guidelines on whether it should be displayed or hidden, no policy on selling it to people not yet eighteen. Even if the court were to find that the book was of literary merit, he went on, its indiscriminate distribution was not justified.
Flanagan called a single witness, Detective Sergeant Kenneth Walters, to testify that he had visited Michie at Penguin’s offices on 31 August. Brusey’s cross-examination played to the onlookers in the gallery. When had Walters first heard that Portnoy was to be published in Victoria?
‘It would be the twenty-eighth,’ said Walters.
‘Of?’
‘August.’
‘Nineteen—?’
‘Seventy.’
‘Have you read the book?’
‘Yes.’
‘And do you feel alright?’
Flanagan objected immediately, and Ross ruled the question out of order. Brusey did not mind. Laughter achieved, he concentrated on drawing from Walters one admission: did he recognise that Penguin was a ‘reputable publishing company’?
To the detective’s grudging, one-word agreement, Brusey made sure to slip in an additional qualifier: ‘About as distinguished a calibre as possible.’
Brusey opened the defence case on 21 October. Stating that the defence wished to fight on ‘the real live issues’ and not on any narrow, technical grounds, he argued that the prosecution should have to show a specific class or group that would be corrupted or depraved by Portnoy in order for its case to succeed. Citing a litany of precedents to support his argument, Brusey pointed to the lack of evidence that any such person, class, or age group had been harmed by the book. ‘You have got no evidence at all in the present case about age groups,’ he told Ross. Shouldn’t that be in evidence?
Aware that the prevalence of sex in the novel had to be addressed, Brusey next told Ross that the coarse language and sex in Portnoy was akin to that in Shakespeare. Think back to your school days, he said. You wou
ld have read Hamlet. Remember the moments before the Mousetrap scene? ‘Hamlet says to Ophelia something like this: “Shall I put my head in your lap?” And then a little later he says, “That’s a fair thought — to lie between maids’ legs. Do you think I meant country matters?” Now, the word country, there,’ Brusey began to explain, ‘is quite plainly a pun on a very ordinary four-letter word. You find that kind of example all over literature.’ Disgust at this kind of language and subject matter, however, was not enough for a conviction. ‘Supposing at the end of that you feel disgusted,’ said Brusey. ‘Is that sufficient for you to convict us under this act? The law has made a very clear and ringing answer to that question. The answer is no. That is not a relevant matter.’
Brusey argued that Portnoy was a sad book. Alexander Portnoy was bricked in by his duties to his family and his own desires. The story related was sexual, yes, but not pornographic. Ross would have come across pornography, he said. ‘And my learned friend, Mr Flanagan, who deals largely, I believe, in such matters, no doubt has seen more than you or I, sir,’ Brusey added, to laughter. Pornography displayed all sorts of activity — kinds where people hardly paused to draw breath as they engaged in a ‘series of sexual acrobatics’.
But the sex in Portnoy’s Complaint was not like that. The sex it portrayed would not prompt arousal or imitation. ‘None of the sex is portrayed as being something which it might be advisable to copy.’ Portnoy’s sex was unhappy, furious, and angry. It was not pornographic. The book was a warning. It was a sad book.
Ross might not like reading it, but that was immaterial. ‘What matters is: does this book constitute a threat to anybody’s morals?’ The answer was no. Portnoy’s Complaint was not obscene. The evidence, Brusey said, would show that.
The Trials of Portnoy Page 13