‘There is no question in my mind as to the worth of the novel,’ Priest replied. ‘I accept it implicitly because I have measured it against criteria that I apply to any work of art or any, in this case, work of literature.’
‘What do you say is your opinion to the worth of this book as a work of literary merit?’
‘My opinion is a very high one.’
It was close, but not clear enough. Deane asked again: ‘Do you say it has or does not have literary merit?’
‘It has decided literary merit, yes.’
Kenny’s manner with Priest was decidedly calmer than with Heseltine and Harris. Citing his statement that he had measured Portnoy against the criteria that he applied to any work of art, Kenny asked to know the first criterion. Then he asked to know the second. Priest floundered. He stammered, said that he did not understand the question, asked for more information. Kenny remained reasonable, even gentle. ‘I am asking you to tell these gentlemen [of the jury],’ he said, ‘so that they may know, what were the criteria which you referred to when you said you measured it [Portnoy’s Complaint] against criteria which you apply to all works of art. That is what you said?’
‘I am attempting to answer the question, yes,’ said Priest. ‘Am I [being] irrelevant?’
‘Yes, I suggest you are,’ said Kenny. ‘Could you just tell us what are the criteria?’
But Priest could not. He could not speak of literary merit without overriding Head’s definition, prompting yet another intervention from Head: ‘You may or may not like that ruling, but it is the ruling I have given and it is the ruling I propose to maintain.’
It did not get any better. When Priest confirmed that one ground for Portnoy’s literary merit was its use of allegory, and explained that he had seen this after reading it for a second time, Kenny asked if it was likely that a first-time reader would miss it. What about a second-time reader? And a third?
Priest could not overcome his problems with the definition of literary merit as imposed by Head. ‘They all overlap,’ he said, at one point. ‘Form, style, and expression — I would never use these terms to a class. They are terribly obscure, and what one must find are terms that clarify the issues, with due respect.’ But when invited to offer definitions of those terms, and to speak within those definitions, Priest could not keep them straight, kept getting led to questions that he found difficult or problematic. It was a small mercy when the lunchtime adjournment ended his time with Kenny.
Deane sought to repair the damage by keeping Priest on the stand, and asking him to detail the meaning of Portnoy at the allegorical level. This time, Priest delivered. He argued that the deeper meaning of the novel lay in the historic and ethnic treatment of Jews. The constipation that afflicted Portnoy’s father was symbolic of this meaning. ‘Roth is saying all Jewish fathers are constipated by their traditions, by their religious beliefs,’ said Priest. ‘Likewise with the mother. She has a hysterectomy. The sterility which results from that again is Roth’s way of saying of all Jewish mothers [that] they are spiritually sterile, physically sterile … The physical impotence of Portnoy, coming at the climax of the novel, is one of Roth’s ways — and there are several ways — of saying, “Here is the end product of a union between a morally constipated [father] and a spiritually sterile mother.”’
It was astute, credible, and convincing — and Head stomped on it the moment that Priest had finished: ‘This might be the meaning of the book,’ he rumbled, ‘but it is not the form.’
Maureen Colman followed. The manner of her testimony was not to Head’s liking. When, during a discussion of the humour in Portnoy, Colman began reading a passage aloud, Head interrupted to say that she was not an actress and was in a court of law. George Masterman, who was leading Colman’s examination, diplomatically requested she read without an American accent.
‘I did not say anything about accent,’ Head growled. ‘I said acting and not reading.’
‘Would you continue in a flatter voice?’ said Masterman.
‘If I might just say,’ Head interrupted for a third time, ‘a normal voice.’
Colman thought little of this. The book was designed to mimic the spoken word, and to draw forth a certain style of reading. Head’s attempt to stop that, she said later, was silly: ‘If you are going to read a bit of dialogue from a novel — for heaven’s sake! — are you not going to give some indication of what the character is saying?’8
Colman was unperturbed by the glowering presence at the bench and the barrage of scorn that Kenny launched in his cross-examination. She had been through it before. To all his questions about the instances of sex, she maintained a resolute line: it was funny.
Barbara Jefferis appeared next. She had no trouble with the restrictions that Head had imposed on witnesses, nor with answering the crucial question: was Portnoy’s Complaint a work of literary merit? ‘How would you classify it — small literary merit?’ Deane asked. ‘Large literary merit?’
‘Very considerable literary merit,’ she replied.
Kenny’s cross-examination was short, contained. He tried to muddy Jefferis’s praise of Roth’s writing by muddying the distinction between style and expression, suggesting that both were a question of ‘the use of words’, but Jefferis was too sharp for that: ‘It does seem to me to include some sort of concept of the quality of his thoughts as well.’ There needed to be an acknowledgement both of the capacity to link words together on the page and the capacity to pick those words that would express the idea an author wanted expressed, she argued.
Just as with Margaret Harris, Kenny sought to badger Jefferis to admit that the subject matter could have been developed and delivered in any kind of way: ‘Some [writers] would describe sexual acts in detail, some would not?’ Was it her view that an author is entitled to develop a subject in any way he or she sees fit?
‘Yes, I think so,’ Jefferis said.
***
When Jefferis retired, the defence’s case was closed. As with the first trial, Kenny sought to offer no case in reply: once again, the Crown had been unable to find any witness who would testify that Portnoy’s Complaint possessed no literary merit.
This was a boon to Deane, who made much of the point in his closing address the next day. Kenny had offered no case-in-reply to the defence witnesses — all of whom, Deane added, were of high standing, even Mr Priest, who was perhaps not ‘good at going into the witness box and saying what he wanted to say’. Nor had Kenny ever put it to the defence witnesses that Portnoy’s Complaint was without literary merit. Not once. His cross-examination was about checking credit, Deane said: ‘You heard the evidence that was given on this point yesterday. It remains uncontradicted.’
Deane revived the spectre of the schoolgirl and scoffed at the evidence about her. He was unequivocal that Portnoy was neither indecent nor obscene. ‘You have read this book, you have had it in your possession, and you have taken it home,’ he told the jury. ‘Do you really think it could corrupt or deprave anyone?’ Moreover, aware of the adverse reaction to Kenny’s argument, in the first trial, that Portnoy could deprave and corrupt the young, potentially even incite them to rebellion, Deane emphasised the restrictions on who could purchase a book and read it. ‘If you are old enough to fight and die for your country,’ he said, ‘you are old enough to be thought of as an adult when it comes to reading a book.’9
Deane emphasised the pitiableness of Portnoy, reading aloud a passage that described Portnoy’s vision of an idealised family life. He also made fun of Kenny’s arguments. To the prosecutor’s suggestion that buyers could pass the novel on to others, Deane laughed. Could Angus & Robertson really make people sign a contract promising to not do so? He mocked the prosecutor’s suggestion that only readers with a tertiary education would be able to understand it. Should there really be some ‘elite’ who could read the book, but not others? ‘That the man with the tertiary education,�
�� asked Deane, ‘is entitled to drink in the streams of literature, but the man without it is not to be allowed the same benefits?’
Kenny used that image for the opening salvo of his reply. After reading passages — of Portnoy masturbating in the bathroom, of Portnoy masturbating after dessert — he stopped. ‘My friend Mr Deane used the wonderful phrase “drink of the streams of literature”,’ he sneered. ‘It would be a rather unpleasant draught if this is to represent the stream of literature. Do you really think that this is the stream of literature, or do you think it is the stream of filth?’
Kenny told the jury to forget their individual views and become the guardians of community standards: ‘What you are there to do — and there is no better tribunal to do it — is to apply not the standards of you personally, but the standards of the community from which you come.’ He rubbished Angus & Robertson’s restrictions on the sale — ‘If it did exist, it was completely ineffectual’ — and pooh-poohed the testimony from the literary experts, especially Priest. ‘As an expert witness, he was something less than adequate,’ Kenny said. His evidence was ‘embarrassing’.
The defence of literary merit was ‘not conclusive’, and to say that literary merit justified allowing a book into circulation was to give writers an awesome power. All they would need was ‘a little skill with the use of words, a little skill with the formulation with some sort of a plot’, and writers could write whatever ‘filth’ they wanted. ‘Gentlemen, in the circumstances,’ Kenny finished, ‘I would suggest that you would without hesitation come to the conclusion that the Crown has proved and proved resoundingly that the sale of this book is not justified in this day and age in this community.’
The judge’s summary was hostile to the novel at the heart of the trial. Head encouraged the jury to look at individual passages in Portnoy and determine whether they ruined the book. ‘Are there so few rotten apples in the barrel that the remainder can be eaten and enjoyed as a wholesome fruit, or are there so many rotten apples and so distributed that all the fruit is tainted and the lot must be discarded?’ He downplayed the defence witnesses, told the jury that they alone were the ones to determine literary merit: ‘You are not bound to accept any opinion, just as you are not bound to accept any evidence’. He dismissed as irrelevant the novel’s subject matter, scorned the supposed humour of masturbation and constipation, and told the jury that they were charged with protecting society’s morals: ‘Well, gentlemen, it is not the degree of civilisation we are concerned with except in so far as civilisation is reflected in a normal, decent standard of morals.’ Discussing the circumstances of the sale, Head directed the jury that Portnoy’s Complaint could not be sold if the Crown had proved that ‘in all the circumstances of the particular case’ the sale was not justified.
Eventually, he concluded with a reminder of the jury’s responsibilities. ‘You are dealing here with offences charged under an Act of Parliament, of the New South Wales Parliament. You are taking a major part in the administration of the law. You are not concerned with the rights or wrongs of book censorship or any similar social question of what should or should not be.’
Immediately upon the jury’s departure, the defence requested amendments to Head’s summing-up, especially to his comments on the humour and four-letter words in Portnoy. ‘Your Honour should not have directed the jury in those terms,’ said George Masterman. ‘… Your Honour used the expression “four-letter words — dear oh dear, I suppose that is one description of them”. I would respectfully submit Your Honour ought not to have made that comment of them.’
But Head accepted none of this. His comments were ‘inconsequential’, he said, and his discussion of the subject matter in the determination of literary merit was a ‘grammatical’ reading of his comments.
And so they waited.
***
The jury went to the small room off from the courts to consider its verdict. But, after a few hours, they sent a message to Head. There was no way they were going to agree to a verdict, they said. Could they return a no-verdict result yet?
Head told them to keep going. They were required to deliberate for a minimum of seven hours, and they would fulfil that minimum. The jury’s response to this was to ask the court officer for two packets of cards.10
Finally, at six o’clock, after six hours of deliberation and play, the jury was allowed to return. Justice Head addressed the foreman: ‘Earlier this afternoon I received a message that the jury could not agree … Are you still in that position, that you have not agreed?’
‘Yes,’ said the foreman. ‘Your Honour, I don’t think there is any possible chance.’
It was the same result as before: no verdict. This time, however, there was no lamenting the outcome, no thanks to the jury for its work, no attempt to cover the embarrassing absence of a resolution to a matter that had now gone on for too long, that had cost too much, that had had so much riding on it.
Head discharged the jury, and did the only thing he could do: ‘I remand the accused for trial at such time and place as the attorney-general may appoint.’
Would there be a third trial? After two attempts and no resolution in either, would the Crown try again?
As they left that evening, the defence team knew that if they had not won outright, they had almost certainly won the bigger battle.
CHAPTER 16
Paper tigers
The backdown took less than twenty-four hours. On the morning of 28 May, the day after the trial’s conclusion, the New South Wales attorney-general, Kenneth McCaw, announced that the case against Angus & Robertson would go no further. ‘Proceedings are therefore at an end.’1
But there was no word on the charges still listed against booksellers James Thorburn, Bob Gould, and four other sellers. Would they be pursued? The Crown solicitor’s office wrote to Eric Willis to clarify the matter. Willis, however, was overseas, and it took until 7 June for him to send word. Regret coloured his note: there was ‘no alternative’ to dropping all charges against the remaining Portnoy sellers, he wrote. ‘The A+R prosecution was the test case.’2 With the second failure to secure a conviction, it was all over.
The New South Wales decision forced the federal government to move. On 15 June, Don Chipp announced that Portnoy’s Complaint would be removed from the list of banned books. In light of the inconclusive court action, he said, the import ban that Customs had placed was not sustainable. ‘The decision has been taken because the Australian edition of the book is now freely on sale in three States and in the Australian Capital Territory. It would be absurd, in the circumstances, to maintain the prohibition on the imported edition.’3 The telegram went out to Customs offices across the country: ‘IN ACCORDANCE WITH MINISTER’S PRESS STATEMENT IMPORTATION OF PORTNOY’S COMPLAINT MAY BE ALLOWED.’4
It was an ignominious defeat, and it left the censorship regime reeling. The agreement on uniform censorship was in tatters. Crucial flaws in the state-based legislation had been exposed and exploited. Publishers, booksellers, writers, and artists were emboldened and defiant. Alongside the backdown on Portnoy, Customs’ wilting powers saw it remove the bans on ten other titles, including Norman Mailer’s An American Dream and Why Are We in Vietnam?5
If Penguin’s staff had needed any further proof that publishing Portnoy would effect change, this was it: it had, in every sense of the word, succeeded. They were elated. Michie, Froelich, and Hooker were triumphant. They felt satisfied, vindicated. ‘We took a risk and it came off,’ Peter Froelich said later. ‘I felt good about that.’6 Hilary McPhee recalled the same feeling. ‘Penguin had sold a lot of books. In the public’s eye, they [Michie, Hooker, and Froelich] were heroes.’7 From London, Graham C. Greene cabled Michie and Hooker: ‘Congratulations on a great victory.’8 Hooker wrote him back: ‘Taking New South Wales is a triumph.’ Then, referring to the still-pending appeal against Penguin’s conviction, he added: ‘If we take Victoria (doubtful) we’ll hav
e run ’em out of town.’9
This would not happen — not exactly. On 31 July, Penguin’s board decided to approach the Victorian government to seek ‘some compromise’ over its appeal. With Portnoy removed from the banned list, the government had to move: it grudgingly agreed that that Portnoy could be sold to people aged eighteen and above.10 But it was not about to back down completely. It continued to insist that the 414 copies of Portnoy that police had seized in 1970 be destroyed. This was petty and silly, and Hooker insisted, just as obstinately, that he be there to see it happen. But in October 1972, when it finally came time for the books to be incinerated, Hooker was amused to attend the destruction and find that all the copies had disappeared — likely pilfered and sold by the police.11
Other state governments remained intransigent. A week after Customs rescinded its ban, Tasmanian attorney-general Max Bingham warned that nothing had changed in his state: anyone offering Portnoy for sale would be prosecuted. That prompted derision and laughter. Shadow attorney-general Mervyn Everett, who in March had defended John Reid for selling the book, lampooned the announcement. ‘Tasmania will be a laughing stock,’ he said. ‘… The attorney-general’s latest decision will do nothing to enhance the reputation of Tasmania in literary circles, nor will it be approved by Tasmanians who still regard themselves as part of the Commonwealth.’12
But Bingham was impervious to the laughter. ‘The legal difficulties which caused recent prosecutions [of John Reid and Ian Pearce] in respect of this book to be abandoned,’ he said, ‘would not necessarily arise on any future occasion. In this event, any proceedings would be taken to their conclusion.’ He had been guided by the advice of the National Literature Board of Review, he said, and ‘nothing, in my opinion, has occurred which has changed the status of the book in Tasmania at all’.13 Bingham insisted later that his resistance did not arise from a particular moral standpoint on Portnoy — although he doubted that he would ‘have gone to the barricades’ for the book. His comments were instead the natural consequence of his position that it was Tasmania’s prerogative to determine what should be distributed within its borders. ‘Tasmania is its own state,’ Bingham argued later, ‘and it had the right to maintain its own laws and determine them. Any attempt to bind Tasmania unjustifiably to a decision made in Canberra was not popular with me — nor, I think, would it be to many Tasmanians.’14
The Trials of Portnoy Page 25