The Trials of Portnoy

by Patrick Mullins

  Bennie was definitive about reality and exaggerration. A work of art did not need to mimic reality: ‘A work of literature is not necessarily dealing with reality at all. It’s a work of imagination,’ he argued. ‘For example, I have no acquaintance with the royal family of Denmark, but I still read Hamlet entranced. A literal realism is not necessary in a work of art.’ Nor was it inappropriate that masturbation be discussed in Portnoy: ‘I understand from the Kinsey Report that the practice is almost universal at some stage or another in the career of males, and therefore I think that this subject is quite a normal one in discussing the career of an adolescent.’ Nor was the derivative necessarily derivative. Invoking Polonius’s advice to Claudius in Hamlet, Bennie pointed out that it contained all sorts of popular witticisms and stories. ‘Nothing in any book can be completely original, in the sense that even unconsciously the author himself may have repeated something he’s heard somebody tell him months or years ago, without knowing that he hasn’t made it up in his imagination.’

  Vine-Hall tried, but his cross-examination was toothless. Attempting to trip up Bennie on the relationship between reality and literary merit, he was shrugged off, chided, respectfully reproached (‘With respect, sir, the question is too general’), or simply rejected.

  ‘Has reality much or little relation to literary merit?’ he asked.

  ‘I can go no further than to say some,’ said Bennie. ‘For example, take A Midsummer Night’s Dream. How much reality is there in that play of Shakespeare’s? And yet none of us would come forward and say that it wasn’t an exquisite work of art with some literary merit.’

  ‘And of course,’ Vine-Hall said, ‘that rather depends on the purpose of the work, doesn’t it?’

  ‘No,’ said Bennie.

  Nothing much seemed to work. Bennie spoke again about realism and credibility, invoked Russian winters to make his point. ‘I’m quite unacquainted with Russian neologist intellectuals,’ he said, ‘but after reading Dostoevsky one can look out the window and expect to see a wolf peering into the door, so credible is the whole thing that you feel that you’ve moved out of this world and into the world that the artist is describing. I don’t have to be a Russian historian of the nineteenth century to understand this.’

  Masterman’s final witness was Maureen Colman.15 Thirty-nine years old and a lecturer in English in the adult education department at the University of Sydney, Colman was well travelled, of an independent mind, and unabashed about her opinions. Like her husband, Adrian Colman, who had testified on behalf of Martin Sharp for the cartoon ‘The Gas Lash’ in 1964, she had no truck with censorship. ‘I just thought it was stupid, and had no place,’ she said later. ‘It was pointless. If you say a book is forbidden, a lot of people will want to read it — they will think it must be an exciting read.’ And though she did find Portnoy rather frank, Colman believed that prosecution of it was ridiculous. ‘You don’t have to read a book,’ she said later. ‘You can’t complain about it that way. If you think it’s dreadful, you can just stop reading it. No one is making you read it.’

  On the stand, Colman argued that Portnoy did what George Eliot had prescribed art should do: enlarge our sympathies. ‘I think that this is one of the things that Portnoy’s Complaint does pre-eminently. It enlarges our sympathies for another human being.’ People felt sorry for Portnoy, by the end, and the techniques used to present him and evoke that sympathy were highly developed and suitable.

  Vine-Hall’s cross-examination was not difficult for Colman. He tried to take her on over George Eliot: what about works that did not enlarge the reader’s sympathy? Would they be disqualified from this realm of literary merit? What about a novel about, say, Himmler, that presented him sympathetically? Would that be a work of literary merit?

  Colman had no trouble again. Citing Bulstrode, from Middlemarch, she argued that even an unsavoury character could be shown to be human. Vine-Hall disliked this response immensely: ‘As long as you can get some sympathy for the postman, it doesn’t matter about the rest, is that right?’

  Well, Colman said, yes.

  What about Portnoy? Isn’t he a scoundrel? Why should you have sympathy for him? Isn’t he having a whale of a time?

  To this, Colman pointed out that the book ends with Portnoy screaming in agony. But Vine-Hall scoffed: ‘You’re a charitable soul, Mrs Colman.’

  ***

  Masterman’s closing address was to the point. He told Berman that no jury would find Portnoy’s Complaint obscene or indecent. Citing Justice Windeyer, Masterman argued that for a work to be obscene or indecent it needed to do more than offend or surprise. It needed to shock, he said. Portnoy’s Complaint could not do that; therefore, Berman should dismiss the case.

  Even if he did not do so, Masterman argued, works of literary merit were exempt from prosecution. The Crown’s failure to call rebutting witnesses on this point, Masterman said, meant that it had implicitly conceded the point. ‘And the position where the Crown takes the course of not calling any evidence in the proceedings at this stage is, in my submission, that that issue is determined in favour of the defence and must be so determined.’

  Finally, Masterman argued that once the possession of literary merit was decided, the onus was on the prosecution to demonstrate that the manner of sale was ‘not justified in the circumstances’. Masterman reminded Berman that there were no signs in Angus & Robertson advertising Portnoy; copies were not on display; and those who sought a copy had to ask for it. And although Masterman did not push back hard on the police testimony, he emphasised that the prosecution had failed to show any reason why the book should not have been sold to people who wanted it, who asked for it, who were all of such an age to read a book of ‘undoubted literary merit’. That included, he added, that girl of sixteen.

  Vine-Hall’s argument was much easier to make. He shrugged off Masterman’s suggestion that no jury could find the book obscene or indecent in light of new community standards: ‘It is pointless and exceedingly tedious to talk about changing community standards, and one hears about it in the newspapers, one hears about it on the television, one hears about it even from erudite people like Masterman — and no one ever tells us what the standards are changing from or to or where they are. Now, there’s one very good cross-section of community standards, and that is a jury.’

  He did not agree that the Crown had conceded anything about Portnoy’s literary merit. That matter, he said, was not suitable for the Crown to argue in a committal hearing. But even if it were, and the Crown had to deal with the manner of sale — well, look at the book! Vine-Hall pointed to the dust jacket: ‘The funniest book about sex ever written,’ he repeated. ‘… It’s as clear an indication as Your Worship could want that it [the novel] was intended to fall into the hands of anyone with $1.35, and it would have done — and, in fact, until the sale of it was stopped, it did.’

  ‘Your Worship’s only duty at the moment,’ Vine-Hall finished, ‘since Your Worship has found a prima facie case, is to consider whether in the light of the evidence already given a jury, properly instructed, would find this book either indecent or obscene.’

  Berman wasted no time. ‘The matters are ones which should go to trial before a jury, and I therefore make an order in each case authorising an indictment to be filed for the offences to be named in the information.’

  It was not unexpected. Angus & Robertson knew that the committal hearing was a formality. Trying to have the case dismissed had been a long shot. For several months now, Angus & Robertson and their lawyers had turned their attention to finding a top-notch Queen’s Counsel to appear at the full trial that Berman had just ordered.16 The company was defiant. It wanted victory. And Masterman made sure to put this on the record straightaway: ‘We welcome a trial before a jury.’

  CHAPTER 11

  A kick in the ribs

  Now the Portnoy trials shifted to Western Australia, where, in the fi
nal days of 1970, Joan Broomhall appeared in the Perth Court of Petty Sessions before Magistrate N.J. Malley, charged with selling an obscene publication.

  A fifty-eight-year-old English-born woman with wavy grey hair, plump cheeks, and glasses, Broomhall was the manager of the Pioneer Bookshop, in Perth. Owned by the Communist Party of Australia, of which Broomhall was a member, the Pioneer was housed in an ageing cottage on the corner of Bulwer and Stirling streets. Its shabby front room was packed with books: the requisite communist material — magazines and newspapers from the Soviet Union, China, and Soviet-bloc countries; novels and plays by favoured writers; and, of course, the works of the ‘saints’, Marx, Engels, Lenin, and Stalin — but also, unusually, mainstream works from local publishers, including Penguin.1

  Broomhall had been determined to stock Portnoy’s Complaint.2 She and the party were anti-censorship: ‘I think censorship of books for adults is an insult.’3 Prompted by the quick sale of an initial fifteen copies in September, she ordered more: 200 copies, then 300, then more again. Aware that the police would soon swoop, Broomhall hid the stock in her home and in those of fellow party members, which they retrieved and brought to the store as needed.4 With a 47 cent profit on each sold copy, Broomhall and the party were intent on maximising sales; thus the party allowed members to sell the book individually and take a 20c cut. Soon enough, party members were appearing in hotel gardens, on the streets, in Forrest Place, and at the University of Western Australia with copies in arm, ready for sale.5 This operation, which was stepped up as the controversy spread in the east, was unabashed, even brazen. On 11 September — the day police raided the Pioneer, seized twenty-three copies of Portnoy, and informed Broomhall that she would be charged — party secretary John Rivo Gandini came to the shop, on foot, laden with copies of Portnoy for Broomhall to put on sale. He did so within full sight of the press, which splashed photographs of his arrival in the newspapers.

  Police retaliated by serving a summons on Gandini and by raiding the store again, on 15 September.6 This time, they made sure to make hay of the raid. With the press in tow, they turned the shop over, to the point of climbing into the ceiling to ensure they had seized everything illicit. They managed to find 267 copies, and photographs of the raid — police officers in trilbies and suits, clambering up bookshelves and diving through boxes — were splashed about. But it was to limited effect. Party members continued to sell the book, pushing sales to about 2,000 copies, and providing a welcome influx of funds to the party coffers. There was also the benefit of considerable publicity: at a meeting in October, party members crowed that the advertising they had gained from all the fuss had been ‘fabulous’.7

  But the potential penalties for the fuss — a $200 fine, or six months’ imprisonment — were not so fabulous. Moreover, Broomhall’s was to be the test case in Western Australia: by agreement between police and eight other booksellers, her prosecution would determine whether Portnoy would be banned in the state and whether the other booksellers would be prosecuted.

  Prosecutor Ian Viner was aware of the government’s desire for success. Aged thirty-seven, he was a rangy and experienced barrister of six years’ standing.8 Though he had heard of Portnoy before the trial, Viner had not read it before it landed on his desk in his brief. What he found was both underwhelming and grotesque. ‘I was very bored by it,’ he said later. ‘I found it tedious to read.’ He was in no doubt whatsoever, though, about the book’s obscenity: ‘I was disgusted by it … I didn’t have any problems saying it was obscene.’

  Influences on that view, he acknowledged later, included his upbringing and the social climate of his state. ‘In Western Australia, we were a socially conservative society,’ he said. ‘I did not have strong views one way or the other about censorship at the time. I grew up in a family where there was no discussion of sex, and swear words were not used.’ People were hostile to obscenity and the use of profanities, Viner believed; censorship, which helped to stamp that out, was therefore uncontroversial. It was regarded as an immutable fact of life, ‘an accepted part of social regulation’. For Viner, the case was not one that aroused great passions or conflicts of principle. He accepted the case as a cab off the rank, and he prosecuted it in that vein.9

  The cause meant more for his counterpart at Broomhall’s trial. A friend of Broomhall and a fellow traveller in the Communist Party, Lloyd Davies was a forty-eight-year-old barrister with dark, stringy hair, bright eyes, brow-line glasses, and a beard that ringed his face like a lion’s mane. He was gentle, if slightly eccentric, and he was delighted to have received the brief. He regarded the trial as an opportunity to show that Western Australia was not a conservative state.

  After a preliminary hearing on 27 November, which was adjourned so that magistrate Malley could read Portnoy — explaining to the press as he left that he had not done so until then because it would have been illegal — the trial resumed on 30 November with Viner calling Lawrence Wishart to the stand.10 A thin-faced truck driver who had purchased a copy of Portnoy from Broomhall on 8 September, Wishart testified that he had heard via his radio that the Pioneer was selling Portnoy. Interested, because it had been mentioned in the newspapers, he went to the shop, where television journalists were interviewing Broomhall about the book. ‘I saw them buy a copy of Portnoy’s Complaint from Mrs Broomhall,’ Wishart testified. ‘They asked how many she had left, and she said four or five. I said I’d better have one, too. She produced a book from under the counter. I paid $1.35 for it.’

  Viner had called Wishart to complete his evidence that Broomhall had sold Portnoy’s Complaint. But his doing so offered an opportunity for Davies to prove his own point. Under cross-examination, Wishart denied that he had been depraved or corrupted as a result of reading Portnoy. The response delighted Davies: it was a ‘point duly scored’.11

  Wishart’s answer was the main grounds upon which Davies then asked Malley to dismiss the case. It was a short-lived request, not least because Wishart’s answer, as Viner pointed out, did not foreclose the possibility that the court could find Portnoy obscene.

  Davies was not disheartened. He was confident that his overall strategy was sound: namely, to establish the merit of Portnoy’s Complaint through expert testimony. Much as Penguin had done in Victoria, Davies intended to call writers, critics, and academics to rebut the charge of obscenity and to testify to the novel’s possession of merit. Given the result in Victoria, this might not appear a sure path to victory. But Davies had an advantage that Penguin did not — a stronger exemption in the West Australian Indecent Publications Act. Section 5 declared that ‘nothing in this Act relates to any work of recognised literary, artistic, or scientific merit’. Although there was the possibility Malley could decide that exemption was restricted to ‘classic’ works that were obscene, it was the best option that Davies had — and he intended to make the most of it.

  ***

  During his preparations, Davies had been doubtful that there would be many witnesses willing to testify on behalf of Portnoy. ‘It was an unworthy doubt,’ he remarked later. ‘Almost every West Australian with literary or academic qualifications who was approached readily consented to do so, even though many of them were heavily engaged in marking public and university exam papers, writing books, or producing plays.’ According to Davies, it was only the timing of the trial — near the end of the academic year — that prevented more experts from testifying. But he had some reason to be nervous. There had been little opportunity for Davies to confer with his witnesses. But for a fleeting telephone call, he had not been able to speak with them at length about their views. ‘Their testimony therefore had a unique spontaneity about it. There was much ad-libbing and a great deal of wit which enlivened the proceedings, even if it did not always further the defence.’12

  This was the case with T.A.G. ‘Tom’ Hungerford, who came to the stand after Broomhall. A veteran who had served in Papua New Guinea during World War II, a novelist a
nd critic with a long involvement in Australia’s literary community, Hungerford had also been press secretary for West Australian premiers John Tonkin and Charles Court. He testified that Portnoy’s Complaint was a ‘turning point in literature’. It was a ‘very fine, well written, superlative human document’. Hungerford was matter-of-fact about the use of four-letter words, noting that it was both appropriate for Portnoy’s character and the context of his speaking on the psychologist’s couch. The book was not a ‘cauldron of filth’, he said. It was a ‘stew of ingredients out of which something remarkable has been achieved’.

  Peppered throughout Hungerford’s testimony were caustic comments about the censorship regime. ‘From personal experience,’ he said, ‘I know how truncating it is to have to tailor dialogue to fit censorship.’ Citing his novel The Ridge and the River, Hungerford pointed out how frustrating it was to make characters — soldiers in the jungles of Papua New Guinea — feel real, while depriving them of the expletives common to their speech.13 He wanted reform of the censorship laws to ensure that books like Portnoy were available and hardcore pornography restricted. He did not think that the present censorship reflected community standards, nor did he think Portnoy’s Complaint was an ‘attack on the censor and the sensibilities of the public’.

  Viner’s cross-examination of Hungerford was of a piece with his challenge to all the defence witnesses to come. He had surmised that the defence would aim at the exemption that section 5 afforded, and that he would need to rebut the claims to literary merit in order to win the trial. Viner knew he was at something of a disadvantage. ‘The witnesses appearing for the defence were lecturers and academics of writing and literature, largely from the University of Western Australia,’ he said later. ‘They were out to sustain the book. I wasn’t going to get too far by challenging them with a definition of literary merit. Not with those kind of witnesses.’