This change, the result of the West Australian trial, and the subsequent scramble to prevent any repetition of that result caused eyes to turn to New South Wales, where plans were still in place to try Angus & Robertson for selling Portnoy. Would the trials still go ahead?
Eric Willis was not about to give up the fight. ‘I don’t know whether the law in Western Australia is the same as in New South Wales,’ he said. ‘Proceedings here are already before a court and it is no longer a matter for me to decide their future.’30
CHAPTER 12
The beginning of the game
The Darlinghurst Courthouse in Sydney was scrupulous, dull, ponderous, and grand. Built in the 1830s, this sandstone block of Doric pillars — Greece revived in the Antipodes — crowned Darlinghurst Hill and lent order to the streets that stemmed from it. Its sweeping driveway, bound on each end by a black wrought-iron fence, flowed into Oxford Street and Taylor Square, seeming to invite Sydney’s citizens in; beneath its shallow portico on any given weekday was a democratic mingle of court officials, barristers, witnesses, and half-interested spectators.
What aesthetic appeal it had — and there were those who thought the Doric columns especially fine — lay largely in the exterior. The inside of the courthouse was worn and shabby. The aged, cedar-lined courtrooms had a functional elegance, but dust motes gleamed in the white light from the windows overhead, and the bench was a grim shadow looming at the front of the court, as though to project the state’s power. And despite the presence of standing fans to supplement the overtaxed ventilation system, the courthouse in the summer months was near unbearable for its robed, gowned, and bewigged actors.
When the next Portnoy trial began, on 2 February 1971, against Angus & Robertson, the summer was at its most severe, a litany of sultry 30-degree days accompanied by afternoon storms. Everyone was hot. The judge looked hot. The prosecutor looked hot. The defence looked hot. The all-male Anglo-Saxon jury looked especially hot. And, as though it might burst into flame and add to that heat, a paperback copy of Portnoy was propped on a shelf set across the dock and guarded by an armed police officer.1
There was something dangerous about the book. This trial was going to be pivotal. With victories evenly split between the censors and the anti-censorship campaigners; with a jury, for the first time, assembled to hear and decide the matter; and with the most populous state in the country to finally weigh in, the third trial was crucial. For the anti-censorship campaigners, victory would render the schism over Portnoy unworkable.2 It would all but end the matter. ‘If you couldn’t ban a book in New South Wales,’ one of those involved said later, ‘it couldn’t be banned effectively anywhere.’3 For the prosecution, victory in New South Wales would represent a major triumph. The tide would be turned; they could go after all of the booksellers who had stocked and sold Portnoy; they could ensure that no such stunt ever happened again. The stakes, for both sides, were high.
P.J. ‘Jack’ Kenny QC, counsel for the Crown, was well aware of this. A short Irish-Australian with a gaunt face, wet, blue eyes, and rimless glasses, Kenny was fifty-eight years old and an antiquity of the New South Wales Bar. He had a standing brief with the Commissioner of Railways, notorious at the Bar, to prosecute for trespass people who had fallen beneath oncoming trains.4 Indomitable, even brutal, with a theatrical courtroom manner, he was a prosecutor from central casting — a living incarnation of the maxim that common law barristers do not cross-examine but, rather, examine crossly. Canny, cunning, audacious, and blunt, Kenny was dismissive of Portnoy’s Complaint and the claims that it was a serious literary work. As he and his junior, Robert Vine-Hall, would later write, the book was ‘more offensive to generally accepted standards than most pornographic novels’.5
But Kenny’s objections to Portnoy did not blind him to the difficulties that he would encounter in trying to secure a conviction. The first problem he saw was the jury itself. Kenny believed there were two types of people in the community-at-large: first, those who ‘confuse[d] freedom of expression’ and believed that authors could write about whatever they wanted, in whatever manner they wanted; second, those who believed that banning a pornographic book only fuelled its notoriety and gave it attention, undermining the efforts to minimise harm. ‘Both categories tend to regard opposition to censorship in any form as a moral principle to be rigidly adhered to,’ Kenny would write, ‘and it is extremely probable that in any jury there will be one or more persons falling into one or other of those categories.’6
Nonetheless, he set to work undaunted. After the jury selection was over and Angus & Robertson had entered its plea, Kenny opened his case with a sharp, simple address. The case was straightforward. It should take only a week. Portnoy’s Complaint was an American novel that had been reprinted in Australia as a paperback. It described a young man narrating his sexual experiences to a psychiatrist, and it had been called one of the funniest books ever written about sex. But, Kenny said sharply, this was mere badinage. It was not accurate. ‘There are one or two passages dealing with normal sexual relations between men and women, but they don’t receive a great deal of attention,’ he said. What was important to this trial were the repeated and detailed descriptions of sex that was not normal: ‘There are also acts of perversion which, as far as I know, there are no Anglo-Saxon words to describe. The whole of it is described in [the] most coarse and vulgar language which may be regarded in this community as unprintable.’
This was the key point, one that Kenny sought to home in on: a book was obscene if it offended any age group or any other group in the community. The contents of Portnoy’s Complaint ‘deal with sex and go beyond anything accepted in our community. The Crown submits [that] the book transgresses the accepted bounds of decency accepted in this country.’7 The book was obscene. Its sale, he said, was against the law.
From there, Kenny called the first of his two witnesses: Detective Constable Terrence Mitchell, of the Vice Squad, Criminal Investigation Branch, New South Wales Police.8
Kenny’s strategy with Mitchell and with Quill, who would follow Mitchell to the stand, was geared toward defeating Angus & Robertson before it had even opened its case. Kenny knew that the defence case would be premised on two points: first, that Portnoy was not an obscene publication and that its sale did not, therefore, violate the law; second, that even if the book were obscene, it had literary merit. If this was accepted, Angus & Robertson could avail itself of provisions in the Obscene and Indecent Publications Act that allowed vendors to sell an obscene work that was possessed of literary merit. But there was a rider on this: the sale had to be justified. The method of sale had to be responsible. Foreshadowed in the December committal hearings, Kenny knew he had to tackle this point, to pre-empt it. Thus, after having Mitchell detail how he had purchased a copy of Portnoy, Kenny asked about the people in the queue ahead of him. Was there anyone inappropriate in the queue? Anyone who managed to purchase a copy who should not have? A schoolgirl, perhaps?
‘Directly in front of me there was a girl,’ Mitchell testified. ‘I would say she would have been about sixteen years of age and she was dressed in a school uniform.’
‘Do you remember the details of the uniform?’
‘Yes, from memory it was a navy-blue uniform, she had on a blazer and black shoes with white socks, and she was carrying a Globite case in her right hand.’
‘She was immediately in front of you?’
‘She was directly in front,’ Mitchell said.
There it was: Angus & Robertson had irresponsibly and unjustifably allowed an obscene publication to come into the hands of a minor. This was the point to which Kenny guided Mitchell’s testimony, and the fact that he sought to fix in the minds of the jury members.
The only hiccups came when humour intruded on proceedings. When Mitchell, at Kenny’s prompting, began to describe other people in the queue, he became snagged on the details of a young man standing in front of the g
irl. ‘He looked to be about twenty years of age,’ Mitchell said. ‘He was of a hippie appearance. He was dressed in a blue —’
The defence interrupted, objecting to the pejorative of hippie. Justice Alfred Goran QC — a wry, quizzical, and owlish judge who had studied law at night while working as a teacher, and then become one of the top criminal law barristers in the state before being raised to the bench in 1965 — sought clarification.9 ‘It depends what he means,’ he said drily. ‘I suppose a hippie person is a person with large hips.’
‘Is that what you mean?’ asked Kenny, as laughter bubbled in the galleries.
‘No,’ Mitchell replied, ‘he was of an untidy appearance, sir.’
Now William Deane QC rose to begin the cross-examination. Notwithstanding that he was then forty years old, Deane was still in the early days of a glittering career. A graduate of the University of Sydney and the Hague Academy of International Law, Deane had been called to the Bar in 1957, when he was twenty-six, and been appointed Queen’s Counsel only nine years later.10 The perception, intellect, and legal skills he showed were considerable: the president of the New South Wales Bar Association would later say that Deane ‘absolutely dominated’ the Bar during this period.11 Later to become a High Court judge and then governor-general, Deane was a heavyweight lawyer, ‘the barrister of choice’, said one colleague.12
But he was also a somewhat unusual choice for the defence. Given that he was a Catholic and former, if very short-lived, member of the socially conservative Democratic Labor Party (DLP), there might well have been bemusement at the thought of Deane defending a novel about a sex-crazed American Jew. Deane was aware of this, as a joking remark to Reginald Barrett in the months before the trial suggested: ‘Don’t forget to tell them that your leading counsel is a conservative Irish Catholic.’13 There were also questions over whether his practice — generally as an equity lawyer — was broad enough to succeed in a criminal law matter. But there were good reasons for his selection: in addition to his intellect and skills, Deane’s manner would make for a marked contrast to Kenny. Eloquent and gentlemanly, he was ideally suited to mount arguments about artistic merit, civility, and obscenity.14
His skill was on show with his cross-examination of Mitchell. Reasonably, but in great detail, Deane took the detective through the visit to Angus & Robertson. He had Mitchell admit the responsible and unobtrusive way in which Angus & Robertson had sold the book. There was no sign announcing that one could buy Portnoy’s Complaint, no notice in the window, no copy on display. The premises were large, the counter at which Mitchell had purchased Portnoy was at the very back, and the people purchasing Portnoy did so without even seeing it.
Then Deane moved to the schoolgirl. For the benefit of the jury, he asked whether Mitchell made any record in his notebook of this visit.
‘No, I didn’t.’
‘Did you make any record yourself at all of this visit?’
‘Not in my notebook; in my official diary there would be a record of having attended the store.’
‘Were there any details of what happened?’
‘No.’
The facts were catalogued: Mitchell made his statement about what had happened in the shop the day after, and he and Quill had collaborated on these notes. Deane drew a link between Mitchell’s and Quill’s reconstruction of the purchase and their evidence about the girl. Did they think her presence was significant? Did they think her relevant to the purpose of their visit? Did they think her age important? Did they take a particular note of her age? Did they ask the girl her age?
‘No, I had no conversation with her,’ Mitchell said.
Deane asked if the detectives were familiar with the practice of leaving a note on someone’s car to alert them that they were to be charged with a parking offence. ‘The purpose of that,’ he explained, ‘is as a matter of ordinary fairness when somebody is going to be charged with an offence, it is customary in this community, it is possible, to give them an opportunity of knowing the circumstances surrounding the event with which they are going to be charged?’
‘Yes, that is correct.’
So, Deane went on, it was true that Angus & Robertson was unaware of the detectives’ visit — indeed, that was the point of the visit, wasn’t it? Moreover, once Angus & Robertson had sold the book to Mitchell, was it not the case that Mitchell and Quill left it until the next day to inform the store that it had, potentially, committed a criminal offence, thereby depriving it of the opportunity to check, follow up, or even defend itself?
The suggestion that the detectives had been underhanded was allowed to hang in the air, a wispy possibility.
Deane moved on. Was Mitchell aware that it was the school holidays at the time of his visit to Angus & Robertson? Did he have an answer to why a girl would wear her school uniform during the school holidays? ‘Didn’t it surprise you that a schoolgirl of about this age would be, in school holidays, actually wearing the school uniform and carrying a Globite bag?’
Mitchell, a tad unconvincingly, sought to be stoic: ‘No, it didn’t.’
Deane suggested that the detectives had been mistaken. Did Mitchell know that the uniforms worn by female employees of the Commonwealth Bank, the NRMA, and the Bank of New South Wales were similar to his description? Was he certain that it was a school uniform? Was he certain it was a particular school’s uniform?
‘No, I had no idea what school it belonged to.’
Now Deane ceased his overly credulous questions. ‘See, Detective, so there can be no mistake about it,’ he said, ‘I suggest to you that this sixteen-year-old schoolgirl is a figment of your imagination.’
***
When Quill took the stand he was far more definitive about the existence of the girl. Under Kenny’s questioning, he described her clothing in detail — a navy tunic dress, a blazer, black shoes, white socks, and a brown bag. With apparent certainty, he identified her school: Fort Street Girls’ High School.
Deane probed this evidence closely. How did Quill know that it was the uniform of Fort Street Girls’ High School, he asked. Quill had testified in the committal hearing that he had no idea what school the girl was from. That was correct, wasn’t it? How could he now be so certain? ‘As I understand it, what you now tell the gentlemen of the jury is that you purport to identify the school by saying that you subsequently had a closer look at some other uniform?’
‘That is true,’ Quill said.
‘A closer look than the look you had had on the original occasion at Angus & Robertson?’
‘That is right.’
‘And you found out from the wearer of that uniform at which you had a closer look what school it was, is that so?’
‘A closer look showed me that the name of the school was written on the crest of the badge.’
‘But of course you could not see the name of the school on the blazer of the girl you saw in Angus & Robertson?’
‘Not where I was standing, no.’
‘You did not see it?’
‘I saw the badge, yes,’ said Quill. ‘I could not read the writing.’
Deane noted again that Quill and Mitchell had not informed Angus & Robertson of their visit until the next day, that they had done nothing to inform Angus & Robertson that they had sold Portnoy to a minor, and that both men had failed to record information about the visit in their notebooks — even about the girl. And, again, Deane pointed out that they had visited the store during the school holidays. ‘Would you agree with me that the first thing the average sixteen-year-old schoolgirl does when holidays come round is to put the uniform away until school goes back in?’ Turning Quill’s certainty and use of detail against him, Deane also pointed out that the uniform Quill had described was the summer uniform for Fort Street Girls’ High School — not the winter uniform, which would have been in use in August.
At this, like a cockroach flipped onto its b
ack, Quill was helpless. Then Deane had him describe how he had decided that the girl was from Fort Street Girls’ High School. It had happened on a bus, a few days later, Quill explained. He had noticed a girl who had the same badge on her blazer as the girl in Angus & Robertson. ‘The wording on the second girl’s blazer was merely Fort Street.’
Eventually, Deane stopped. ‘So that there can be no doubt about this, what I am suggesting to you is that this Fort Street High School girl is an absolute invention.’
‘That is entirely wrong,’ said Quill.
‘And I am suggesting to you that at no stage did you see any girl in school uniform on 31 August or on any other day being sold a copy of the book Portnoy’s Complaint.’
Quill sought to be stoic: ‘What I have said is true.’
But he was blowing in the wind. How — if the detectives did not speak to the girl — did they establish that she was sixteen? Who suggested that she was? How did they agree? How did they reconstruct all this? Would it be true to say that the supposed age of the girl was ‘the result of an agreed state of affairs’ between Quill and Mitchell?
‘Yes.’
‘Is that the way that you and members of the police force working with you normally prepare accounts as to —?’
‘Yes, men working together, naturally.’
‘What — agree together as to what the situation was?’
‘Well, if there is any dispute it would be ironed out.’
But then another, plainly disconcerted voice broke in. ‘How do you do that?’ asked Judge Goran.
‘Well,’ said Quill, turning, ‘if I said the chap looked twenty and Mitchell said he looked thirty, he would have to stick with that.’
‘But that is not ironing it out,’ Goran said. ‘That is an agreement to differ. Do you agree to differ?’
‘No.’
‘You do not?’
The Trials of Portnoy Page 19