It was a small mercy when Chisholm retired and the defence case was closed. Kenny offered no case-in-reply. In spite of considerable efforts by him and officials from the Crown solicitor’s office, no expert had been prepared to give evidence for the prosecution on Portnoy’s possession of literary merit. Kenny later suggested that this was due to ideological conformity:
To qualify as an expert in the relevant field a witness must be either an academic, a writer, or a critic. Such persons either espouse the point of view that an author should be free to write as he wills without any legal restriction whatsoever, or alternatively, because of the fear of professional ostracism or of loss of opportunities of preferment which they think likely to follow any apparent opposition to that point of view, purport to adopt it, and will not give evidence of lack of merit of a book.21
He was aware of the weakness that this exposed. The bulk of the evidence had been adverse to the prosecution, and had relegated the detail of the sale of Portnoy’s Complaint to a sideshow. Moreover, the impression created in the minds of the jury was that there was no dispute among literary experts as to whether or not Portnoy possessed literary merit.
But there was nothing he could do about that now. Thus the trial moved to the next stage: Deane’s closing address. Here, Deane’s manner — his calmness, reasonableness, and articulateness — shone. He deftly set aside the jurors’ feelings for Portnoy. You might dislike it, he said, and that was fine: ‘Not everyone enjoys Shakespeare.’ It was okay to dislike the book. But one had to recognise that it was a work of literary merit. Yes, Portnoy contained depictions of sex that were off-putting. ‘But there is nothing wrong, and there is nothing evil, about sex as such,’ Deane said. ‘Sex is also the touch of a hand and the exchange of the eye and the feeling of unity and the feeling that two people have become physically one. That is true sex, and in a way that is what this book is about.’ The scenes that depicted masturbation had to be included because they established Portnoy’s underlying problems. ‘That is his introduction to sex: on his own, no love, no other party. On his own.’ Deane counselled compassion and understanding, and recalled Heseltine’s testimony: ‘Nothing in human nature or nothing in humanity should be condemned simply out of hand. Professor Heseltine said the purpose of literature, certainly one of the purposes of life, is understanding and compassion.’
Portnoy’s Complaint was a moral book. It did not encourage perverted sex; it discouraged it. Treating sex as a taboo was simply replicating the conditions that Roth had illustrated in the novel: ‘Little Portnoy, the little boy, no one to talk to about his sex problems,’ Deane said. The message of the book was to explain how Portnoy got to the psychiatrist’s couch, to say: Look what happened to him. It did not encourage copying.
Deane pointed to the witnesses and their evidence on literary merit. He mocked the evidence from detectives Mitchell and Quill. Their schoolgirl was a ‘patent invention’. He reminded the jury how Quill had determined the girl was from Fort Street Girls’ High School: ‘Gentlemen, the coincidence!’ It was school holidays at the time, too: ‘Well, I ask you!’
‘There is only one thing involved, ultimately, in this trial,’ Deane said, ‘and that is whether an Australian bookseller and publishing company going back into the nineteenth century, taking the care it has taken, treating this book — which, of course, is an unusual book — in the light of the evidence you have heard, treating it as something that it handles with every consideration as to way of sale and everything else, the question is ultimately whether that company should be convicted of a crime, of a serious crime.’
The answer, he finished, should be no. The verdict should be not guilty.
***
Kenny’s closing address reinforced the contrast between the two counsel. Where Deane had talked of compassion and understanding, Kenny talked only of Portnoy’s tendency to deprave and corrupt. Everything came back to this: the obscenity, the literary merit, the manner of the sale. ‘The thing that is material is what in fact the book tends to do,’ Kenny declared. ‘The material question is what is its tendency, what is its effect likely to be.’ This was the only question for the jury to decide: ‘What is the likely tendency of this book?’
He scorned Deane’s suggestion that Portnoy was moral, and dismissed Deane’s talk about the beauty of sex. The book was simply obscene. ‘Obscene means filthy or lewd or lascivious, leading to carnal desires, leading to carnal thoughts, leading to dirty-mindedness.’ Kenny pressed that upon the jury and asked them to predict what might happen should people read Portnoy. He cited passages: was this likely to corrupt? Was this likely to injure? What about this? What about this? ‘Test it for yourself,’ Kenny said. ‘Would you take it home and leave it lying around the house?’
At this question there was an immediate, and visibly adverse, reaction from the jury. Kenny saw it at once; so did Vine-Hall. It was ‘so strong’ a reaction that Kenny abandoned the rhetorical questions and returned to railing against the novel.22 ‘It is about sex, written in a dirty way, in an explicit way,’ he said. Roth could have written about any number of issues, but had deliberately chosen to deal with sex, and via a technique ‘which enables him to speak of it in the most vivid and fulsome details’.
The book promoted an unacceptable view of sex, and offered prurient descriptions of sexual acts. And with a few exceptions, it would not be read as the ‘so-called experts’ did. The great majority of people, Kenny said, ‘do not study the book, they study the story, and the only thing they are concerned with is what the book says’. What would such readers remember of the book? Only the events. Only the depravity.
The prosecutor’s arguments were at times extraordinarily bold. He lauded Roth’s prose for its accessibility, and then indicted it for that same quality: ‘It makes it all the worse.’ He admitted to perceiving the humour, but declared it reprehensible since it brought matters of sex and dirtiness ‘more vividly’ to hand. He read passages aloud, made apologies for the language, and made as though to shy away, saying as he did so that the jury probably remembered this notorious event anyway in shock. It was a performance, and Kenny sought to milk it for all it was worth.
He urged the jury to disregard the view of the defence witnesses: nothing they could say would justify the publication of Portnoy’s Complaint, let alone its sale. He spoke of the degradation of the public that would follow should a not-guilty verdict be returned. Teenagers would be the most affected, he said. They would rebel against proper moral authority. In Portnoy’s Complaint, they would not see a role model for resolving their problems — only an example of how to rebel, how to act out. They would wonder, Kenny said, ‘Why should not I behave in the same way as the character in this book?’
‘Having applied your own mind and your own interpretation,’ Kenny finished, ‘… you will have no hesitation in finding that there should be a conviction.’
***
Justice Goran’s summing-up was judicious. He did not know what Deane was speaking of when he talked of ‘beautiful sex’, and he did not think much of Kenny’s suggestion that some aspects of sex were not worth portraying. ‘I can recall some teacher at school telling me when I wanted to know on what to write a composition that any peg was good enough to hang your coat on. And so it is with a novel.’ He urged the jury not to go through Portnoy ‘on a witch hunt’, nor to quantify how often sex appeared in its pages. They should consider the book’s effects on readers, yes, but be realistic. ‘Obviously, toddlers of five are not going to read it,’ he said. ‘You may look at the possibility of whether this is going to come into the hands of children of ten or twelve, some age like that, but you may well think that this is a book which will come into the hands of people of about, say, eighteen years, and some adolescents of a few years below that. Will it tend to corrupt or deprave, or injure their morals?’ He told them, notably, not to impose higher standards than they themselves would live by, but to draw from experience
: ‘What is your experience of young people today? Would they be depraved by reading a book?’
He said that they did not need to accept the evidence from the literary experts, but he stressed the gravity of that evidence. Citing Patrick White’s appearance, he asked, ‘Do you discard those things lightly?’ He reminded the jury of the evidence from detectives Mitchell and Quill that Portnoy was on ‘unrestricted sale’. The defence had contested this, he said, but it could not be brushed aside.
And what of the sixteen-year-old schoolgirl? Goran brushed her aside: ‘I am not going to deal with the evidence of the sixteen-year-old schoolgirl in uniform with Globite schoolcase in hand during school vacation, that is, in one hand, and her money in the other hand seeking to buy Portnoy’s Complaint. You have heard that evidence,’ he said, ‘and it is entirely a matter for you as to whether you accept that version or not or whether in fact you are left in doubt about it.’
Finally, Goran asked the jury to retire. He sounded for all the world like the convenor of an afternoon debating society when he added, ‘I have a feeling, gentlemen, that you will have an interesting if not a profitable time in discussing these matters.’
CHAPTER 14
Figures in dusty light
The defence team was satisfied as it settled in to await the verdict. They had done well. The witnesses had done well. Deane had done especially well, David Marr believed: ‘Deane was wonderful. He was unflinching in his praise for the book.’1 His closing address, in particular, had been pitched at exactly the right level: ‘He made poor, sick Portnoy sound like St Augustine — with a dash of Jerry Seinfeld.’ Kenny’s tactics had been predictable. Rubbishing the book, dismissing Angus & Robertson, wildly predicting what teenagers might do when they read it — none of this was surprising. ‘He personified the moralisers in Australia that wanted this book banned,’ said Marr. Perhaps most important of all to the defence’s mood was Goran’s summing-up. It had been generous in its direction, expansive on the claims and arguments: ‘We felt that he was summing up for a not-guilty verdict.’
The defence team thought that victory was likely. ‘We were pretty confident that the jury would not convict,’ said Marr.
And yet Marr, at least, could not help but lament the necessity of the trial. As he had arrived for each day’s hearings, Marr had thought there was something fitting about the architecture of the courthouse, with its Doric columns, portico, and triangular pediment: ‘It just seemed to me that what we needed was a spirit of Greek-style easy morals and freedom.’ The cause had been worthy, but also surreal. Fighting it out in the elegant but shabby courtroom, where its figures had stood in the dusty light talking about masturbation and arguing about perversion was, truly, bizarre.
But Kenny was unhappy with the summing-up. Immediately after the jury left, he pressed Goran to call them back and amend his directions. He wanted a definition of depraved, corrupt, and injure morals, and he wanted an especially restrictive definition of literary merit. The definition Kenny wanted was, in effect, to make the hurdle higher and higher. ‘Merit means more than mere skill in the use of words,’ he said, by way of suggestion. After forty minutes of argument, Goran reluctantly agreed. He amended his directions and told the jury to retire again.
It was not helpful. The number of witnesses and the complicated directions had so unsettled the jury that it came back at 3.30 pm, asking for clarification; retired again; and was then recalled an hour later and asked if they needed further help. ‘Sometimes in a case like this,’ Goran said, ‘one is reminded of Omar Khayyam, who said amongst other matters that he frequented places of great argument, and evermore came out by that same door where he went.’
The jury retired once more. By now, they could have been forgiven for tossing in the towel. Their arguments would have gone back and forth: what did literary merit mean? How could Portnoy’s possession of literary merit possibly overcome its obscenity? What would be the effect of a not-guilty verdict — more books like this? Another three hours passed. They had taken the job seriously, aware of the responsibility entrusted to them, but by 7.40 pm the jury was at an impasse. Goran recalled them to the court. He understood from the foreman that they were unable to agree. If he offered more time — the jury could have all the time it needed — was it possible that they would come to a verdict?
‘We have discussed this point, Your Honour,’ said the foreman, ‘and we do not feel that we could reach a decision.’
That was it. That was the result of the trial: no verdict.
Goran was philosophical: ‘It is better that you disagree than you arrive at a situation which is an injustice to somebody, merely for the sake of agreement.’ He thanked the jury, urged them not to feel disappointed, and excused them from further jury service for five years.
‘As to the accused company,’ he said, ‘I suppose the only order that I can make is that I remand the matter for retrial to such court as the attorney-general may appoint.’
***
The New South Wales government was lucky. Word of the lack of verdict came too late in the evening to make a proper splash: the news was crowded out by Australia’s loss of the seventh Ashes test and the re-election of the Askin Liberal government on 13 February.
But there was no getting away from the damage that was being done to the censorship system, which was left battered and reeling from the forces of change. This seemed to manifest itself physically. In Victoria, embattled and exhausted by controversy and party infighting, Arthur Rylah had at last given way. Announcing his retirement on 3 February, he suffered a brain haemorrhage a fortnight later and collapsed at his desk, forcing his immediate resignation from parliament. The Customs department, meanwhile, had felt forced to release forty-eight books from the banned list, including Peyton Place by Grace Metalious, The Carpetbaggers by Harold Robbins, and The Other Victorians by Steven Marcus, on 12 February. These concessions begged the inevitable question: what would be next? Would Customs now remove the ban on Portnoy?2
The failure to secure a conviction over Portnoy compounded the embarrassment and the sense that change was in the air. The lack of verdict had come only days after Wendy Bacon had been tried in the courtroom next door for wearing her embroidered nun’s habit. She had made a farce of those proceedings by refusing to enter a plea, by conducting her own defence, by citing Socrates’ dialogue with Euthyphro, and then by refusing to give any information about her family to police and the court when found guilty by the jury. Was the whole system falling down? Why could it not resolve these matters? Most importantly, would another trial against Angus & Robertson end any differently?
The state government could not even take solace from the deadlock in the jury. John Michie wrote to Graham C. Greene to relay the apparent voting in the juryroom: 10–2 that the book was obscene, 9–3 that it had literary merit, and 9–3 again that its publication was justified. ‘Meanwhile,’ Michie went on, ‘with South Australia and Western Australia going strong and with some underground sales in other States, we have notched up sales of over 120,000 so far.’3
In federal parliament, the opponents of censorship leapt on the lack of verdict and Portnoy’s continued sales. On 16 February, after presenting a petition calling for adults to be allowed to decide what they watched, read, and heard, Labor MP Richard Klugman pointed out that Portnoy could legally be sold in South Australia and Western Australia, and that the New South Wales jury had ‘refused to declare’ the book was obscene. Then, addressing Don Chipp, Klugman asked: ‘In view of the fact that there has been no obvious increase in rape cases, either among those who have read the Australian edition, or the minister, his staff and parliamentarians who have read the imported edition, will he remove this book from the list of prohibited imports?’
Chipp would not budge an inch. The government would not relax the ban on importing Portnoy. His hands, he told the House, were tied by the Customs Act and by regulations. By law, he had to prohibi
t the import of any obscene or indecent publication. But this aside, there were clear grounds to accept that Portnoy’s Complaint was obscene. ‘We now have one court in the nation — in Victoria — which has pronounced unequivocally this novel to be obscene,’ he said. ‘We have another court in Western Australia which also has pronounced unequivocally this publication to be obscene.’ Setting aside the peculiarities of the West Australian legislation that saw the charges there dismissed, Chipp reiterated that he could not allow the import of a novel that had already been declared obscene in two separate courts.4
But his dismissal of the question could not end the matter. On 22 February, debate resumed in the House on Chipp’s ministerial statement on censorship from the year before.5 MPs on both sides criticised the arbitrary nature of the censorship system, pointing to the works that had managed to slip through the cracks, and offered varying rationales for maintaining some degree of censorship. And although all commended Chipp for his willingness to draw scrutiny and to debate the issue, there were clear schisms in views about the worth and value of censorship.
Liberal MP Robert Solomon said that he disagreed with Chipp’s abhorrence of censorship. He was in favour of moderation, he said; in favour of judgement in context, of appreciation of real sensitivity, of social responsibility, for the uplifting over the hurtful, and ‘for restricting the portrayal of ultimate degrees of explicit experience in favour of some appeal to the imagination’.
Labor’s Moss Cass argued that censorship itself caused harm by disconnecting repugnant actions from their consequences: in excising the repugnant action from a work, the censor also excised the feeling of repugnance itself that was necessary to the maintenance of a just society. ‘We should be exposed, through good literature, to all these problems of human relationships — the good and the bad — because we have to be able to cope with the lot if we are to live a reasonably happy life.’
The Trials of Portnoy Page 22