But the publicity and the public consciousness of censorship were having an effect. On 1 March, while confirming that there would be another trial against Angus & Robertson, Eric Willis stated that he had decided a jury should determine whether or not the book was obscene. ‘What I have done,’ he said, ‘is to let twelve ordinary Australians, chosen at random as representatives of New South Wales, decide whether publication and distribution of this book should be permitted or prohibited.’ This was not, however, his preferred course of action: he would have preferred to decide himself whether Portnoy’s Complaint was obscene, he said. But, as he also told the press, if he had exercised this option he would almost certainly have been accused of making a ‘one-man decision’.29
Penguin, keeping in touch with Angus & Robertson and Allen Allen & Hemsley, hoped that Willis’s decision could be reversed: ‘There is a possibility that the Crown will not pursue the matter,’ Michie wrote.30 Angus & Robertson and Allen Allen & Hemsley did their best to convince the state government to drop it. On 10 May, the firm filed an application for proceedings to be dropped; the next day, it sent a letter to the attorney-general, Kenneth McCaw, arguing that the result of a second trial would be the same as the first. The jury at the first trial had been representative of the community; should another jury be empanelled, it would surely reach a similar conclusion. The firm noted that Portnoy had received widespread acceptance among the public and among critics, in Australia and overseas, and pointed out that the cost of further proceedings was clearly inordinate. The cost to Angus & Robertson for the first trial had been $10,000, the firm said — yet the maximum fine for a first offence on the obscenity charges was only $500. What would be the point of a further trial?31
Angus & Robertson chairman Gordon Barton echoed these arguments. He rang McCaw directly to seek a stay of proceedings, and managed to arrange an appointment with Willis to lobby him face-to-face. ‘I have been anxious to see you with a view to avoiding, if possible, a second hearing, with its attendant inconvenience and expense, of the Portnoy trial,’ he wrote subsequently. McCaw had turned Barton away while the application was considered; upon realising that his appointment with Willis was fixed for the same day as the trial was to begin, Barton followed up with Willis by sending letters to his home and office, seeking a meeting at any time of the day or night. ‘This is to ask, as a matter of urgency, if you would consent to an adjournment of the trial pending our discussion and your decision.’32 But upon realising what Barton wanted, Willis, too, cancelled their meeting. ‘Had I known [the] purpose of visit earlier I [would] not [have] made appointment,’ he grumbled.33
McCaw sought Kenny’s response to the application for a No Bill. The prosecutor was dismissive, curt. Nothing had changed since February, he wrote from his chambers, and Allen Allen & Hemsley’s application raised no matter that would cause him to alter the advice he had given. The trial should go ahead.34
That sealed it. Immediately upon receiving Kenny’s advice, the undersecretary for justice sent Allen Allen & Hemsley a letter. ‘The Attorney-General, having carefully considered all the circumstances and the evidence available, has directed that the case against the above-named [Angus & Robertson Ltd] proceed to retrial.’ Then, almost snarkily, the letter went on, ‘As you are aware, the retrial of this matter has been listed at Sydney Quarter Sessions on 18th May 1971.’35
Allen Allen & Hemsley was aware: 18 May was the next day.
CHAPTER 15
A cloistered and untried virtue
When the next Portnoy trial began in the Taylor Square courthouse, at ten o’clock on Tuesday 18 May, Deane and Masterman reappeared for the defence, with Hugh Jamieson instructing.1 After qualifying as a solicitor and practising for one day, David Marr had left the law to travel and begin a career in journalism, leaving Malcolm Oakes to take his place. Twenty years old and an articled clerk with Allens, Oakes had played second fiddle to Marr at the first trial, but his involvement this time was to be much greater — beginning with jury selection.
As proceedings got underway, Deane asked Oakes to tug on his gown if he believed there should be an objection to any potential juror. Oakes duly watched as the jury was selected. It was mostly men who were selected — but then came a woman with well-coiffed hair, dressed in a dark two-piece suit. Oakes immediately thought: Mrs North Shore. ‘Not a good candidate for judging the literary merit of a rather hung-up Jewish New York youth with unusual masturbatory habits,’ he remarked later. He therefore tugged Deane’s gown. Deane objected, and the woman was asked to step down.2
Later, she came up to Oakes. Why, she asked, had they objected to her? She was the secretary of an anti-censorship league, she said. She would have been a locked-in vote for acquittal.
Oakes could only shrug off the missed advantage. If he could not pick out a favourable juror, he joked, perhaps he was not cut out for the criminal law.
The excitement of the first trial was not to be repeated at the second. There were regularly gaps in the public galleries. The witness list was shorter. The big witnesses — Patrick White, in particular — would not be appearing. Margaret Harris, who had agreed to testify again, recalled that there was a sense that the whole affair was now redundant: ‘In the second trial, by then, it was flogging a dead horse.’3 It seemed that the stakes were now lower. With victory in Western Australia, a stalemate in Tasmania, and the token fines imposed in Victoria and the Northern Territory, Portnoy had opened a schism across the country. And while the book was not free for purchase in New South Wales, the stakes were now much higher for the prosecution than for the defence. Another no-verdict result would be as effective as a not-guilty verdict for Penguin and Angus & Robertson: there was barely the scintilla of a chance that a third trial would be pursued if the result again was a no-verdict. For the prosecution, however, either of these would be a disaster, a complete failure. The prosecution needed a guilty verdict.
The acuity of that need prompted the New South Wales government to add another charge to the indictment: that, in addition to selling an obscene publication, Angus & Robertson — by virtue of owning Halstead Press and printing Portnoy for Penguin — had published an indecent publication as well. It was a backup: if the prosecution could not convince the jury to convict Angus & Robertson of selling an obscene publication, it might be able to convince it that it was guilty of the lesser offence of publishing an indecent one. The additional charge provoked consternation from Deane. He lobbied to have it dropped. ‘The Crown should be required to elect which charge it wishes to proceed with,’ he argued. ‘It cannot proceed with both.’
Justice Phillip Head QC MBE agreed to stress the difference between the two, but refused to force the Crown to choose. A decorated legal officer who had been held prisoner by the Japanese during World War II, Head was a former common law silk who had been raised to the bench in 1964.4 Thin-lipped and high-browed, he had a careful, formal, and rigid manner and little patience for the kind of lengthy debates that Goran had allowed in February. This lack of patience would be exacerbated by a painful skin disease he was enduring that forced him to wear green protective gloves and to cover his face with white ointment. He would repeatedly intervene to circumvent the testimony of witnesses and to reprimand counsel for laughing. All this would make the trial heavy-going.
The opening stages of the trial were brisk. After Deane’s submission, Kenny opened, decried Portnoy’s Complaint and its blatant obscenity, and sought to reduce the trial to one question: ‘You are only concerned [with] whether this book is acceptable in the community.’5 Kenny called Mitchell and Quill to the stand, quizzing both about their visit to Angus & Robertson and their return the next day. Conscious of the weaknesses of the police evidence from the first trial, he skated lightly over the sixteen-year-old schoolgirl; Deane, cross-examining, worked hard to draw it out again while politely making much of the inconsistencies and fortuitous instances of the detectives’ visit and record keeping. He put to
them, again, his proposition that the schoolgirl was a figment of their imaginations. Both, again, denied it.
Then Deane opened the defence case. Portnoy’s Complaint was a work of high literary merit. ‘We will defend ourselves loud and clear,’ he said. ‘This is not a written collection of dirt from a lavatory wall compiled for the sake of dirt — it is a work of literature.’ Angus & Robertson’s reputation and character was at stake. The company had sold the book in a responsible way. ‘We will call evidence to show that Angus & Robertson sold a work of literature, without extending any invitation or enticement.’6
The court adjourned so that the jury could begin reading Portnoy before it was sent home. On Wednesday, the jury read; on Thursday, Head was sick, and proceedings were adjourned for that day and the next so that he could have the weekend to recover.
Court resumed on Monday 24 May. While waiting for a tardy jury member to arrive, Kenny sought to repeat his luck from the first trial, and put it to Head that the defence witnesses should not be allowed to testify to Portnoy’s literary merit. ‘This is not a matter for experts at all,’ he argued. Again, his argument was simple: the existence of literary merit in Portnoy was for the jury to determine. Therefore, witnesses should only be allowed to express views about the criteria for identifying literary merit. Moreover, Kenny went on, Head should select the rules that the jury could use to determine whether that merit existed.
Head was surprised, but said that he had intended already to rule that literary merit described a ‘written composition which has worth or excellence on account of its qualities of form, style, or expression’. Witnesses would be restricted to saying whether a book had worth or excellence on these points — and these alone, he said. Functional though Head’s definition was, it was also a highly restrictive way of discussing literary merit. But Kenny was not satisfied with the advantage this gave him. He further argued that, in light of Head’s intentions, whatever defence witnesses said would be only their opinion — and therefore should not be heard. To Head’s suggestion that medical doctors, too, when testifying, merely expressed an opinion, Kenny scoffed.
‘A doctor is in a particularly skilled position vis-a-vis the jury as compared with the jury in this situation,’ he said, ‘because he [the doctor] is a man who is skilled in diagnosis, he is skilled in taking the relevant from the irrelevant in the sense of observable phenomena. He can look at a man and he will see things that a person not skilled in diagnosis will not see, and he knows what will follow.’ The literary experts, however, were doing something that anyone could do: ‘The jury can read.’
It was an unconvincing submission, not in the least because it flew in the face of standard practice in obscenity cases, but it was wholly of a piece with Kenny’s determination to obtain every advantage he could. Head decided not to make a ruling. He preferred to play it by ear, he said, and deal with the question as it arose. Then, noting that the final juror was still missing, Head ordered a policeman to fetch him, and adjourned the court.
***
It took until two o’clock for the juror to arrive and the hearing to get underway. The defence first called Ronald Dingley. Deane led Dingley efficiently through his evidence — through the circumstances in which Angus & Robertson had sold Portnoy, the restrictions that had been placed on the sale, and whether he had seen any schoolgirl in the store. ‘I did not,’ Dingley said.
Paul Grainger followed, and repeated his testimony from the first trial. Kenny barraged him with questions, but found the young man immovable. He gave up his questioning in short order. It did not escape the defence’s notice that Kenny asked no questions about whether Grainger had sold the book to a schoolgirl: plainly, the prosecutor had calculated that repeated denials of the allegation would be sure to have an impact on the jury.
Then there was a new witness: Helen Watkins, an assistant with Angus & Robertson who had been aiding Grainger on the paperback counter when Portnoy’s Complaint went on sale. Nervous, hesitant, and upset that she had been called to appear, Watkins nonetheless buttressed Angus & Robertson’s defence that it had been responsible when selling the novel: she confirmed what Dingley and Grainger had said. As the defence had intended, the emphatic testimony of the three Angus & Robertson witnesses, right at the start of their defence, all but banished from the trial the spectre of the sixteen-year-old schoolgirl.
Harry Heseltine came to the stand. The effect of Head’s restrictions on what literary experts could speak to became palpable immediately. Deane had to ask Heseltine his opinion of the quality of Portnoy’s Complaint ‘insofar as form is concerned’, what it was insofar as ‘the style’ was worth, and what should be said about Portnoy in terms of its ‘expression’. Heseltine answered these questions, but added that humour was a central feature of the novel and should be discussed — particularly since it related to form, expression, and style. Thus he returned the next day, 25 May. From the humour, Heseltine moved to justify the voice and language of the book. He pointed out that Roth had given his narrator a voice just as Mark Twain had to Huckleberry Finn, and that the direct, coarse language of the novel was necessary to create Portnoy as a character.
Deane went patiently through all of this, but the crucial point was at the end: ‘What is your opinion on the question whether the book Portnoy’s Complaint is a work of literary merit?’
Kenny objected, but Justice Head allowed the question. ‘On each of these tests — the test of style and the test of form and of expression,’ said Heseltine, ‘I believe Philip Roth’s book Portnoy’s Complaint to be a considerable work of literary merit, of demonstrable merit.’
In cross-examination of Heseltine and the witnesses who followed, Kenny was even more ferocious than he had been at the first trial. He scorned, badgered, nitpicked, and barked. He sought to fog up the clarity Heseltine had brought, to mess up his categories. He asked if form and content were different matters. Are they, he asked. Do you regard style and form as one and the same? When you say the form has merit, do you mean that the use of language by the author has merit?
Heseltine corrected the prosecutor’s confusion of Roth with Portnoy (‘No, it was the explicit description of Alexander Portnoy’s recall of sexual acts’), and met Kenny’s sarcasm with his own (‘You profess to have some legal knowledge, do you?’ Kenny asked. ‘No,’ said Heseltine, ‘but I assumed that is what this trial was about.’) Their most contentious exchanges came during questions over a writer’s freedom.
‘Do you believe in literary censorship?’
‘I think not.’
‘Your point of view is from a social point of view [that] an author should be free to write about any subject which he, the author, selects?’
‘My point of view would be that of John Milton, the great moralist.’
‘Is that what you say?’ said an unimpressed Kenny.
‘My point of view coincides with John Milton’s: “I cannot praise a cloistered and untried virtue,”’ Heseltine said. ‘That is from the Areopagitica.’
Kenny pushed him once more: ‘I will ask you to answer it.’
‘I have,’ said Heseltine, ‘in the words of Milton, which I make mine.’
Margaret Harris followed. By its use of form, style, and expression, she said, Portnoy’s Complaint presented its protagonist in a manner that was convincing and moving: it was a work of ‘distinct literary merit’. The subsequent fusillade from Kenny demonstrated his opinion of this argument: the thin veneer of literary merit she perceived in the use of the first-person narrator, he suggested, was simply a way for Roth to include obscene material. After all, he went on, other writers had explored the same issues as Portnoy, and they not gone into the ‘detailed description of sexual acts’.
The defence objected on grounds that Kenny was comparing Portnoy with other books, and Kenny quickly withdrew. Doubtless he was aware that it might open the door for the defence to make comparisons themselves. But he c
ontinued to push for an admission that subjects could be explored without the explicit sexual material included in Portnoy. ‘If that skilful novelist’s view of the situation of mid-twentieth century man did not involve his mid-twentieth century man’s sexual history and emotional make-up,’ said Harris, cautiously, ‘perhaps he could.’
To all this, Kenny became frustrated: ‘Perhaps you could answer yes or no,’ he barked. He was sarcastic, contemptuous: ‘What is central [to the novel] is that he masturbates?’ He reprimanded her: ‘I did not ask you about the approach of other people to reading, did I?’ Malcolm Oakes, watching and hearing this, at times felt uneasy: it was as though Kenny was beating up on a younger sister. But he also thought that it had the effect of alienating the jury. ‘Cross-examination is a delicate business,’ he said later, ‘and can turn sour on the cross-examiner.’7
Kenny had more success with William Priest, an English teacher at Ryde High School, who came next to the stand. Priest found it difficult to stay within the bounds of the definition of literary merit that Head had imposed. His repeated forays beyond it prompted objections from Kenny and interventions from Head that, inevitably, sapped Priest’s confidence and clarity, making him scattered and hesitant. Deane carried him as best he could, but the man was nervous. ‘I am sorry, I have lost the thread of that sentence,’ he said at one point. At another, he exclaimed that he would answer the question as a schoolteacher, then — ‘No, I am sorry, I must answer as a critic of this book, as an analyst of this book.’
Finally, Deane got him to the crucial question, but even here Priest could not answer with the necessary certainty and clarity. Did Priest think Portnoy’s Complaint was a work of literary merit?
The Trials of Portnoy Page 24