Almost immediately, Brusey broke in with a question. Ross had mentioned Portnoy’s availability to various age groups. Would Ross expand on that, Brusey asked, perhaps to clarify what age groups he was referring to?
The magistrate went red. No doubt he had realised that in referring to age groups he might have given Penguin further grounds for an appeal. After a long pause, he told Brusey in halting, careful terms that he was not bound to answer the question, and that he would not expand or clarify his answer.
‘This is odd and is much discussed by Brusey and co. as to the actual sense of Ross’s no,’ Hilary McPhee wrote afterwards. ‘Brusey seems to feel this is the moment on which we might have a chance to appeal for [the] admission of psychiatric evidence.’ Certainly it was peculiar for Ross to have so erred; nonetheless, Brusey began lobbying for leniency.
He told Ross that he should take into account the difficulties in Victoria for a publisher about to publish a work of recognised literary merit. There were uncertainties with which Penguin had struggled before its decision to publish. Victoria was the first place in the world where Portnoy’s Complaint had been prosecuted under an obscenity law. That should count for something. This was not a deliberate offence, Brusey argued, with considerable chutzpah. It had been committed by a company of international standing and reputation — a company ‘to which we are all indebted’, he argued. Ross should therefore impose a nominal penalty only.
Ross, who had looked puzzled and gazed heavenward while Brusey spoke, turned to Flanagan. The Crown prosecutor put his motion: the 414 copies of Portnoy’s Complaint that police had seized should be destroyed. In light of Ross’s decision, he sought an order for that destruction.
In that case, Brusey said immediately, he sought a stay on any destruction order in case of an appeal.
Ross dealt with this quickly. He wanted the matter over. He stayed the destruction, subject to the date by which an appeal had to be filed, and handed down his sentence before vanishing into his chambers: a $50 fine for publishing an obscene article, a $25 fine for distributing an obscene article, another $25 fine for keeping an obscene article for gain, and $4.50 for court costs.
‘We’re obscene but with some literary merit and our crime against society has been measured at $100 plus $4.50 costs,’ McPhee wrote. ‘It’s all rather heartening and at this stage we seem fairly certain to appeal upwards.’ The penalty, certainly, was lenient. ‘It was token,’ Peter Froelich recalled. ‘It was a peppercorn.’2 There was widespread agreement that public opinion had influenced the court on this front. How else to account for it? ‘Certainly weird when you consider the 100,000-odd copies sold and the rumours of righteous anger against this publication for gain,’ McPhee thought. It boded well for Michie’s yet-to-be-tried case: even if found guilty, he could surely not be dealt with any more harshly than Penguin.
Stephen Charles thought the verdict was positive. Although he lamented that Ross had bowed to political pressure to find Penguin guilty, he saw that the verdict left the state government in an impossible position: there was nothing more that they were able to do. ‘All the steam went out of the prosecution,’ he said later. ‘… As soon as [Ross] announced it, we knew that Bolte and Rylah would be furious. This decision effectively stuffed them.’3
The verdict did not dent Penguin’s resolve. Though he had been less certain that Ross would accept Portnoy’s possession of literary merit, Michie had predicted that the magistrate would not, ultimately, rule in Penguin’s favour.4 But that would not be the final word. ‘He was always going to appeal,’ said McPhee, later. ‘Penguin were not going to just take it.’5 Michie had ensured that Penguin remained resolved. Three days before the verdict, the board of Penguin Australia determined that an unfavourable verdict would be met with an immediate appeal.6 The attitude among staff, recalled Bob Sessions, was ‘a sense of, “This is just part of the fight. We’ll win this, and we’ll win the next one, too.” We felt we were doing the right thing.’
Outside the court, in front of the press, Michie sounded defiant. The battle was not over. Yes, Penguin had been found guilty. And yes, for now, Penguin could not distribute Portnoy’s Complaint in Victoria. But it should be recalled that almost 100,000 copies had already been sold in Australia. The book was legally available in South Australia, and Ross had found that Portnoy’s Complaint was a work of recognised literary merit. That finding vindicated Penguin’s decision to publish the book. This was to his liking, Michie said, but he was ‘very disappointed with the overall finding’. And so Michie told the press that Penguin would appeal: ‘We will take it to the High Court if our solicitors advise us there are grounds to do so.’ And if that were not enough, Michie intimated that Penguin could make further challenges to Australia’s censorship and obscenity laws. It had other books that it could seek to do so with, he said.7
Privately, he remained combative. ‘Again, the press reaction has been very favourable and we have, at this stage at least, won a moral victory,’ he wrote to Graham C. Greene. ‘The situation is becoming increasingly ludicrous, especially when you consider that we have sold 100,000 copies and have been fined a total of $100 for doing so.’8 Hooker would echo this point when he wrote to Greene: the verdict was ‘basically ludicrous’, though it was also a ‘slight advance’ on decisions made in the past in similar cases. Moreover, Hooker went on, ‘There is something almost apologetic in the magistrate’s tone.’9
Press reaction to Ross’s verdict was caustic. The Age scorned the ‘exquisite ambiguity’ in his declaration that it was notorious that community standards had changed. ‘Did he mean notorious in the simple sense of being well-known, or did he intend to impart a connotation of disapproval? … It is of course notorious that citizens of this virtuous State are more easily offended and disgusted than those of any part of the English-speaking world.’ It rubbished his exclusion of the scientific evidence: ‘If medical specialists in mental conditions and professional analysts of human behaviour are not qualified to submit evidence on this point, then who is?’ Finally, the paper derided the failure of Ross and the censors that had banned Portnoy’s Complaint to understand that it was a funny book: ‘So lacking are they in insight and humour that they cannot perceive laughter is one of the best safeguards against depravity and corruption.’10 Elsewhere, The Canberra Times lamented that the ‘uninformative’ decision failed to clarify the nature of obscenity, and argued that it caught in sharp focus the failing agreement between the Commonwealth and the states for uniform censorship. ‘Whatever the merits or demerits of the Victorian decision,’ the paper editorialised, ‘… the puzzling assumption remains that different community standards apply in different parts of Australia.’11
***
Meanwhile, preparations for the trial in New South Wales were continuing. Government solicitors keeping an eye on Victoria were reckoning with how they would handle the litany of expert witnesses testifying to Portnoy’s literary merit. How would they rebut those arguments? Approaches — for guidance, advice, and even a few damning comments — to members of the National Literature Board of Review were rebuffed. Those members wanted nothing to do with the court action, and any opinions they offered would likely have been equally of help to the defence.12
Eric Willis looked for help among contacts of his own, and came away disillusioned. ‘I feel it would be difficult to get any recognised expert to say the book [Portnoy’s Complaint] has little literary merit and impossible to find one to say it has none,’ he wrote to the Crown solicitor’s office.13
The government was still grappling with this when the committal hearing began on Monday 14 December in the Sydney Court of Petty Sessions.14 Appearing before Magistrate Harold Berman, for Angus & Robertson, was George Masterman, who had been retained for his links with Allens and his experience with obscenity law in the Dennis Altman case.
Opposing Masterman was Robert Vine-Hall. An experienced prosecutor who had edited Bignold’s fam
ous guide to the Police Offences and Vagrancy Acts in 1967, and prosecuted Wendy Bacon in the Sydney Magistrates’ Court earlier that year, Vine-Hall knew exactly what was required of him. He called Detective Constable Terrence Mitchell to the stand, and took him through his testimony. In the company of Detective Sergeant Edward Quill, Mitchell said, he had gone to Angus & Robertson at around noon on 31 August. They had gone to the paperback section, queued, and purchased a copy of Portnoy’s Complaint.
‘Did you notice anybody in particular in the queue?’
‘Yes,’ said the detective, ‘directly in front of me in the queue was a schoolgirl, in school uniform.’
This was surprising to the defence — and potentially ruinous. A schoolgirl had been able to purchase the book? A schoolgirl ?
Masterman, however, initially ignored this. His cross-examination of Mitchell was focused on the manner of the sale of Portnoy: he wanted to demonstrate that Angus & Robertson had sold the book responsibly, without sensationalising its contents or playing on its notoriety. He had the detective confirm, grudgingly, that the book was not on display in the shop window (‘I didn’t see it on display’), that it was sold from the back of the store, that there were no signs advertising the book (‘Well, there could have been but I didn’t see any’), and that even at the counter where the book was being purchased, there still were no copies to be seen (‘I didn’t see them on display’).
Then, aware that the only real threat to that strategy was this schoolgirl that Mitchell had mentioned, Masterman sought more information. How had Mitchell determined that she was a schoolgirl? Did he speak to her at all?
‘No, I never spoke to her.’
‘So, all the help that you give us in attempting to identify this girl is that you say she’s about sixteen, was wearing a navy uniform, had long dark hair, [and] possibly was wearing a navy hat?’
‘Yes, I can give you more,’ Mitchell said, agreeably. ‘She was carrying a school case. I noticed that she had white socks on with black shoes and I couldn’t see the name of the school on her blazer or anywhere and I didn’t take particular notice if she was wearing a tie. I couldn’t identify the school.’
‘You mean there was no name on the blazer?’ Masterman asked. ‘Did you look for it?’
‘No, I didn’t look for it.’
‘Anyway, she was about sixteen? I suppose she could have been seventeen or eighteen?’
‘I wouldn’t put her age at any more than sixteen,’ said Mitchell. ‘She had no make-up on and she looked very young in the face.’
‘Well, your best estimate is about sixteen?’
‘About sixteen.’
Detective Sergeant Edward Quill came next. His evidence with Vine-Hall was brief, confirming what his colleague had said, but with Masterman it was extended and contentious. They started with Masterman’s request to see what Quill had written in his notebook about the Angus & Robertson visit. Quill handed the notebook over, but added as he did that it contained nothing of his visit to Angus & Robertson. Those notes were on two pieces of foolscap paper that he had typed, ‘shortly after, on the day’, at the Vice Squad office.
Masterman zeroed in on this. ‘Why did you think it appropriate to put some observations and conversations in your ordinary police notebook, and some in —?’
‘Well, the purchase of the book at Angus & Robertson was a matter that had been considered should be done unostentatiously,’ Quill interrupted. ‘Consequently I did not think it was prudent for me or anyone else to be making notes in the shop whilst this was going on.’
‘This gives you the advantage that you are the only one who can give evidence about this purchase. You and Mitchell.’
‘I don’t think so. There was — any other person there that could have seen what we saw.’
‘And they would be expected, I suppose,’ said Masterman, ‘to remember this visit by Constable Mitchell and the schoolgirl in front of him?’
To Quill’s feigned ignorance, Masterman was blunt: ‘What I suggest to you is that this schoolgirl is an invention of yours and Mr Mitchell’s.’
Quill denied it, but he was on the back foot. He did not alter that when Masterman asked for a copy of his notes about the visit. Quill had not tendered them to Vine-Hall, nor had he brought them to court. He did not think, he explained, that they would be required.
They were, Berman interrupted. The magistrate adjourned the court for ten minutes, and ordered Quill to retrieve the notes.
The subsequent examination of those notes was brutal. Masterman established that they had been typed on 1 September, not 31 August, as Quill had just testified; that Quill had barely opened Portnoy’s Complaint — ‘I commenced to read it, and I gave up,’ Quill said — and that his testimony about seeing people younger than twenty queueing to buy the book on 1 September was profoundly flawed. ‘You can’t tell us whether in fact they actually purchased the book or not?’
‘No, that’s correct.’
Immediately after Quill stepped down, Masterman put it to Berman that the case should be dismissed on the grounds that there was no case to answer. It is likely that the weakness of the police testimony about the schoolgirl, and the grudging admissions of the lack of signage in the Angus & Robertson store, were what spurred the request. Berman, however, refused it. ‘I find there’s a prima facie case, Mr Masterman, and now it’s a matter for you whether you wish to call any witnesses on behalf of the defendant company.’
Masterman had lined up three witnesses to testify that Portnoy’s Complaint was a work of literary merit. The first was H.W. Piper, head of the School of English at Macquarie University. Aged fifty-five, Piper brought considerable credibility to the defence case. He agreed that Portnoy’s Complaint was possessed of literary merit, and confidently discussed its literary heritage. The book contained tragedy and comedy. It was a savage comedy, of exaggeration and grotesquerie, that was commonplace in literature. ‘If you want literary ancestry for it, go back to Aristophanes,’ he said. ‘It’s been through literature, always.’
Under Vine-Hall’s cross-examination, however, Piper became nervous and anxious. His hands began to tremble, noticeably, and his answers became hesitant, vague, and then uncertain. Vine-Hall asked Piper whether he had heard of Jacqueline Susann’s famous quip — that while she would like to meet Philip Roth, she would not like to shake his hand. ‘Do you agree with that?’
‘No, I’m not even quite sure what it means.’
‘Aren’t you, Professor?’
‘If this could mean that they think the book is well-written, but is something that no decent man should have written …’ Piper tried. ‘Is that what they mean?’
‘You are the critic, not I,’ Vine-Hall said breezily. Quizzing Piper about literary merit and what it was, he became sarcastic and cutting. When Piper suggested that works of literary merit made ‘a comment on our experience’, Vine-Hall directed him to the passage where Portnoy, masturbating in the bathroom, ejaculates with such vigour that he splatters a light bulb and calls himself the Raskolnikov of jerking off. ‘Who on earth, Professor, is Raskolnikov?’
‘Raskolnikov is a character who, in Dostoevsky’s Crime and Punishment, commits a murder and gets away with it until eventually his conscience betrays him.’
‘And what has that to do with —? I mean,’ said Vine-Hall, stopping, ‘does he ever damage any light bulbs?’
‘No, of course he doesn’t damage any light bulbs,’ said Piper. ‘He commits a particularly bloody axe murder. And this is the point of using Raskolnikov there — to indicate wild guilt, absurd guilt.’
‘Absurdity?’
‘Yes.’
‘Extremely humourous,’ said Vine-Hall, drily. Then he began asking about the connection between realism and literary merit. Pressed, at length, on this line of questioning, Piper’s nerves now got the better of him. He flailed. He babbled, backtracked, apolog
ised. He agreed, then added caveats; admitted possibilities, then asked for clarification. He was all over the place.
Vine-Hall did not let up. ‘Don’t you follow at all?’ he demanded. Smelling blood, he pressed Piper on the book’s accuracy and Piper’s ability to evaluate it. ‘You would agree that it is to a large extent a novel about class?’
‘Yes. It’s to a large extent a novel about a class, yes.’
‘It does not truly present that class. Does that detract from its literary merit?’
‘It could, it could, yes.’
‘It could, considerably, depending on how far its accuracy was?’
‘Yes, and the nature of the inaccuracy.’
‘Have you met many North American Jewish mothers lately?’
‘I haven’t met any for ten years, and only one then. I have known Jewish families.’
‘In North America?’
‘No, some North American, others in Australia, others in England.’
‘Have you known lately a large number of young Jewish men who were products of North American Jewish families?’
‘Not a great number, no,’ Piper admitted. ‘Getting down to cases, probably I’ve known about three or four. That’s all.’
‘You are, in fact, in no position to judge the accuracy of the picture with which we are presented here, are you?’ said Vine-Hall.
‘Of those aspects of it, no.’
‘So, you are in no position to know to what extent inaccuracies may deprive this book of literary merit?’
All Piper could do was agree.
***
Peter Bennie — known as ‘the Toad’ to his students at St Paul’s College, where he was warden — followed Piper to the stand. A tutor of English and an ordained priest in the Church of England, Bennie was a witty, liberal man with experience in appearing at obscenity trials, having testified during Richard Neville’s trials. He was clear and absolute about Portnoy. Merit could be found in the words and form of an artwork: ‘So that if the words and the form are a perfect expression of the subject matter, then you have literary merit, and the more serious the subject matter, the greater the literary merit.’
The Trials of Portnoy Page 16