‘No,’ said Quill.
To this, Deane noted that ‘ironing things out’ and refusing to agree to differ removed the possibility that conflicting evidence could be given in the witness box; moreover, the clandestine nature of the detectives’ visit to Angus & Robertson, as well as their failure to alert staff at the store to the alleged sale of Portnoy’s Complaint to a minor, meant that there was no possible way to check their evidence. What reason was there for this? What, after all, had there been to stop the detectives from identifying themselves? What reason could they have had for not speaking with the girl, and establishing the vital details about her?
Quill stonewalled, but Goran was so unimpressed that he continued to interrupt and press for answers. ‘Why could you not have asked her when she went out of the shop, “Would you mind telling me how old you are?”’ he asked Quill. ‘How would that have affected your whole case?’
‘I can only say if we had done that we would have been trying to get the name and address of every person we saw buying the book.’
‘What was to stop you asking her name?’ Deane asked.
Finally, Quill gave up: ‘Nothing.’
***
At the time of the Portnoy trial in New South Wales, David Marr was a twenty-three-year-old articled clerk employed by Allen Allen & Hemsley. Though soon to leave the law for a career in journalism, Marr had been plucked out of the clerks’ room by instructing solicitor Hugh Jamieson to serve as the dogsbody for the defence team. His job was to herd and brief witnesses, relay messages, and cart files and documents about. Though potentially dreary, he found instead that the work was absorbing, exciting. Portnoy’s Complaint, he thought, was ‘fabulous — just completely wonderful’, and his involvement in the defence of it was cause for considerable pride. ‘I had read all the stuff about the Lady Chatterley case,’ he said later, ‘and I had no doubt that with Portnoy we were doing something important. The firm knew it. So did Penguin. So did Angus & Robertson. This case mattered. It was the best thing I did in my — admittedly, short — legal career.’15
It would also offer instruction in litigation tactics. When he arrived at the courthouse that morning, Marr had noticed that parked in the driveway was a hire car in which a woman sat in the back, waiting.
Evelyn McEwan, the principal of Fort Street Girls’ High School, had been subpoenaed by Allen Allen & Hemsley to testify. Under questioning, the defence believed, McEwan would blow apart the police claims that one of her students had purchased the book. She would point out that it was during the school holidays; that students would hardly wear a uniform that they did not need to; and that it was completely the wrong uniform in use at the time. ‘I was all for calling her to the stand,’ Marr said later. He thought McEwan would be a lethal witness, exposing the police claims about a schoolgirl for what they were: brazen inventions and lies. ‘So I was saying, “Call her! Call her! When are we going to call her?”’
But Deane, Masterman, and Jamieson had begun to rethink the idea of calling McEwan to the stand. Yes, McEwan would undoubtedly do them much good under questioning. Yes, she would easily be able to scotch the police claims. But what about the cross-examination? What might happen then? What would Kenny ask her? And what might she say in response?
‘She would be invited to condemn Portnoy’s Complaint,’ said Marr. ‘And, as the headmistress of a girls’ school, she would almost certainly accept the invitation to put the boot into it.’
The danger was obvious; the question was stark. Was the damage that McEwan might do to the prosecution’s case worth the damage she would do to the defence’s?
Wiser heads prevailed. ‘It was an early lesson for me,’ said Marr. ‘There are dangers you don’t run, questions you don’t allow the other side to ask.’ Deane, Masterman, and Jamieson opted to be satisfied with the cross-examinations of Mitchell and Quill. They had punched crucial holes in the police testimony; those would suffice.
Word was sent out to McEwan. She would not be called to testify. The hire car and its silent passenger were sent away.
***
The time had come for the jury to read the book. Deane, doubtless with an eye to the effects of reading the novel among the realities of family life, lobbied for jurors to take the book home. ‘We would submit that that jury would be in a much better situation to form a view of this book if they were permitted to take it to their homes and read it in the ordinary comforts of their home where a book like this is read, rather than to read it in the uncomfortable and barren atmosphere of the jury room.’
Justice Goran was sympathetic, but refused. ‘I think I am going to be unpopular, but I must do this,’ he said. ‘I am going to ask the jury to read it in what you call the uncomfortable and particularly barren atmosphere of the jury room.’
There would be a two-day adjournment in proceedings. Jurors would attend court the next day, Wednesday 3 February, and read Portnoy’s Complaint in the jury room. They could have all the time that they might require. ‘Take your time about it,’ said Goran. However, he went on, jurors needed to remember that they had not yet heard all the evidence. The defence would make its case next, and there might yet be further evidence from the Crown. Then there would be closing addresses, and he too would sum up. Do not make conclusions before all the evidence has been heard, he instructed. Suspend your judgement, he said. ‘You have only seen the beginning of the game.’
CHAPTER 13
The subject of expert evidence
Deane had opened his defence before the jury had begun reading the book. He dismissed the schoolgirl from consideration: she was only relevant if the jury decided that literature should be of a standard suitable for a sixteen-year-old — and ‘God forbid for the sake of English literature that situation could arise’.1 The bigger point was that Portnoy’s Complaint was not an obscene work. The passages of sex and immorality were neither pornographic, depraving, nor corrupting. ‘You might find some of the sexual references a trifle disgusting, and not in the best of taste,’ Deane said, ‘but they do not titillate and could never encourage perversion or anything else.’ Far from obscene, the novel was a work of literature, with considerable merit. The defence would prove this, Deane said, ‘through the mouths of witnesses who would carry weight; witnesses whose names were bywords in the literary world’.2 Thus, on the afternoon of Thursday 4 February, Deane called Harry Heseltine to the stand.
Heseltine was almost tailor-made for the case. An associate professor at the University of New South Wales, a Fulbright and Carnegie scholar, he had pronounced expertise on American literature, and opposed censorship. He had testified in defence of the Oz editors — Richard Neville had been a student of his — in 1964, and he had much sympathy for what Penguin was doing with Portnoy.3 ‘Well, it just seemed to me the thing one had to do,’ he said later, of his decision to appear. ‘If you were supposed to know something about literature, particularly American literature, and you believe that the book had merit, you should be prepared to get up publicly and say so.’4
Kenny was aware that Heseltine was a dangerous witness: he could define the discussion of literary merit for the trial, and offer a clear and credible argument for its existence in Portnoy. So, when Deane invited Heseltine to detail the literary merits of Portnoy’s Complaint, the prosecutor objected, arguing that this had to be determined by the jury, and that evidence on this matter by experts was opinion — and therefore not admissible as evidence.
‘Your basic objection to this evidence is that expert evidence — as to the opinion of the expert on the literary merit — cannot be given at all?’ asked an incredulous Justice Goran. ‘It is not just the question that has been asked, but the fact that the evidence cannot be given at all?’
‘Yes,’ Kenny replied, ‘it is not the subject of expert evidence.’
It was the first indication of Kenny’s perspicacity — and it succeeded.5 After a long exchange with Kenny, Go
ran sustained the objection, ruling that witnesses first had to affirm and describe objective standards of literary merit before applying them to Portnoy. It created an immediate obstacle for the jury: they would have to understand those standards first to make any sense of how they applied in Portnoy. The effect was instantaneous. When Deane asked Heseltine to identify the recognised criteria for determining whether a book had literary merit, Heseltine split the question: first, into a test of establishing whether a work was literary; second, whether it had merit.
He was prepared to state that literature could not be defined by its subject matter; it depended on ‘the use of the language [that] is brought to bear by the authors choosing the subject’. As for merit, Heseltine argued that it was demonstrable if the ‘verbal model’ of human behaviour used in response to the subject matter — that is, the language the author brought to bear upon the subject — was shown to have ‘consistency and coherence’.
‘In light of what you have said,’ Deane asked, ‘is this work in your view a work of literature?’
Yes, said Heseltine.
And did the use of vulgar language, four-letter words, and crude situations detract from the work’s literariness, or its merit?
No, said Heseltine. They were essential. To remove them from the book would be akin to ‘cutting the lines of the Prince of Denmark from the play Hamlet ’.
Deane referred him to a passage describing the sexual fantasy of the Monkey’s first husband: a black woman would shit on a glass table beneath which he masturbated, all in view of the Monkey, who was to drink cognac and watch from the remove of a red damask sofa. Did this detract from the novel’s literary merit?
Heseltine was unambiguous: no, it did not.
***
Kenny was aware that success for his side required his discrediting of the defence claims about the literary merit of Portnoy’s Complaint. How should he do so? The previous tactics adopted by Flanagan and Viner — emphasising the four-letter words, reading aloud the licentious passages to evince a cringe from the witness — had hardly been shown to be a sure-fire way to secure a conviction. What should he do?
Kenny answered that with an eye to the jury. Resourcefully and shrewdly, he formulated tactics predicated on playing to the twelve silent men assembled in the jury box. First, he aimed to make Heseltine look grubby by suggesting that his diagnosis of Portnoy and the Monkey — as ‘two mutually inadequate people’ — stemmed from a skewered view of sexual deviancy. Citing the passage Deane had referred to, Kenny asked Heseltine if he regarded it as a ‘moral offence’.
‘I regard it as morally and physically unpleasant,’ said Heseltine.
‘Do you regard it as a matter of moral guilt?’
‘I regard all the sexual deviances in this book as objects of pity.’
‘If you take a man who squats on a table and behaves in this manner in front of his wife, do you find him incurring any moral guilt?’
‘Moral disapprobation, perhaps.’
‘Disapprobation means disapproval?’
Heseltine rephrased it: ‘What do you mean by guilt?’
To these deflections, Kenny began to strain: has he done anything wrong? Is this unnatural? Would you agree that what Portnoy has done is against the natural law?
But Heseltine calmly quoted the Roman playwright Terence: ‘Nihil humani mihi alienum puto.’ I find nothing that is human is alien to me. ‘It is possible,’ he continued, ‘to disapprove and react in moral shame and horror but still feel compassion, and I think this is what Philip Roth is doing in the book.’ He felt compassion for all those involved, he said — the Monkey, her husband, and the black woman fantasised about.
To this, Kenny moved to a different line: he suggested that Heseltine was too intellectual a reader to be representative of the public. Heseltine had a ready response: ‘We would have to compare IQ.’
Kenny moved on again, engaging Heseltine on what literary merit meant, and suggesting that at crucial points Portnoy did not live up to the standards of literature. Roth had not written everything of the character of Portnoy, and the book was therefore deficient, he suggested. Citing a fleeting reference to a quiz-show scandal in the 1950s, Kenny said it had been dealt with far too quickly, and that Portnoy’s failure to speak more about it was a flaw in the work.
‘If I go to a doctor to treat a big toe,’ Heseltine replied, ‘I don’t necessarily tell him that I teach English.’
Finally, Kenny took up Heseltine’s description of the purpose of literature: ‘the enrichment of human understanding’. He set up a question he could be sure would linger in the minds of the jury. ‘So, if any work of writing, any piece of writing, is to be literature, it will have enlightened our understanding of some problem?’
‘It if has literary merit, yes,’ Heseltine said.
Did Portnoy’s Complaint enlighten or enrich understanding of human nature? Or was it an exercise in filth and depravity that offered nothing to anyone? Those questions hung over the court, until Deane, moving to re-examine, asked Heseltine what he would say of Portnoy’s Complaint.
‘I would say that it has literary merit and it has enriched my understanding of certain aspects of human behaviour and would therefore, I hope,’ said Heseltine, ‘contribute to the moral quality of my own life.’
***
Testimony from the literary witnesses was interspersed with evidence from Angus & Robertson’s employees to rebut the evidence about the sixteen-year-old schoolgirl. Ronald Dingley, the manager of the Castlereagh Street store, testified about the circumstances in which Portnoy had been sold.
Deane was careful to emphasise the schoolgirl. ‘When was the first occasion that you heard the suggestion that this book had been sold to a sixteen-year-old schoolgirl?’ he asked.
‘I think I read it in the paper first, sir.’
And when was that?
‘Long after the sale of the book.’
Kenny focused on attempting to demonstrate that Angus & Robertson’s sale of Portnoy had been irresponsible. He cited the restrictions that the bookseller had taken while selling the book, and turned them back on the defence. All of those measures, he pointed out, were exceptional: no other book had been kept from the shelves, kept under a counter, or placed directly in a bag when it was purchased. Didn’t that suggest what Angus & Robertson thought of the book?
It was an effective line, and one that Kenny underscored — testing the licence of the court as he did — by asking Dingley to confirm that Portnoy had been banned by Customs. It was a way of sneaking in the information; unsurprisingly, Deane objected.
Goran scolded Kenny: ‘The question should never have been asked.’ But Kenny’s combativeness and lack of deference to the bench led him to protest. Goran cut across him immediately: ‘You are very experienced in these matters. You occupy a particular position in this court, and I am saying you should never have asked that question.’
Kenny bowed his head and moved on. He put to Dingley that Portnoy could be loaned, resold, or circulated in libraries after it had been purchased from Angus & Robertson. Once unleashed, he seemed to suggest, Portnoy could spread like a virus, infectious and uncontrolled.
It seemed a good point. But Dingley dismissed it. It would be a waste of time for people to buy Portnoy and resell it, he said. The book cost only $1.35. ‘They would not make much money if they bought them from us and resold them.’
***
The following week saw Kenny stepping up his attacks, and Goran stepping in to push for clarity and specificity. This became acute during the testimony given by Barbara Jefferis, a novelist and book reviewer. She had testified that Portnoy had literary merit for its possession of emotional truth. It added to ‘our knowledge and understanding of human nature’, she said, and was a ‘beautifully written’ book with profanities that were realistic and fitting.
Goran pushed Jeffer
is on this. Why did this constitute literary merit?
‘I didn’t intend to imply that the things you mentioned make it so,’ Jefferis replied. ‘The thing that makes it a work of literary merit is this deep understanding of the central character and his very real plight.’
So, Goran went on, what is presented is a convincing human being? And it is that which makes Portnoy a work of literary merit?
‘Yes,’ said Jefferis.
Goran’s questioning gave Kenny his most audacious line of attack: discrediting literary merit as a concept altogether, portraying it as subjective and arbitrary, even negligible. As he would later argue, the phrase as inserted in the act had no commonly accepted meaning. There were ‘as many views [on its meaning] amongst persons purporting to be experts [on literary merit] as there are persons’.6 Discrediting those views would require him to lock horns with the defence witnesses on the territory of their expertise — but where Ian Viner had shied away, Kenny was bold.
He bombarded Jefferis with questions about the distinctions between literature and merit, boxing her in and always reducing her caveated answers to absolutes. When she said that the distinctions were difficult, and that his definitions were unclear, he barked that he was talking about her definition: ‘I said according to your definition, not mine. Don’t worry about mine. According to your definition of literature there is no literature which is not meritorious literature, using your definition of the word.’
Eventually, Goran intervened to impose order. Take the books generally called ‘pot-boilers’, he said to Jefferis. Using your definition, would you regard them as having literary merit? Would you put a James Bond or a Mickey Spillane novel into the same category as Portnoy’s Complaint? What was the difference?
Jefferis obliged. Those were formulaic novels. They had been put together to sell. ‘It is usually a more commercial operation, and has very little to do with what a serious novelist is trying to do in making a book.’
Was Portnoy’s Complaint written to a formula, Kenny asked. Was it not the case that the pornographic elements had been included to aid commercial success?
The Trials of Portnoy Page 20