Administrative assistant to the Undersecretary, 10 September 1970, NSWSA: NRS 906, 12/4121, item A69/950.
Lawson, 1995, p. 91; author’s interview with David Marr, 22 November 2018.
Undersecretary to Willis, 21 September 1970, NSWSA: NRS 906, 12/4121, item A69/950.
McKay to Allen Allen & Hemsley, 29 September 1970, ibid.
Willis’s annotations, 18 September 1970, on Undersecretary to Willis, 17 September 1970, ibid.
Author’s interview with Reginald Barrett, 4 July 2019.
Rylah to Chipp, 7 September 1970, NAA: A425, 72/4378.
Beard to Walters, 9 September 1970, ibid.
Michie to Greene, 23 September 1970, JC 118/2, PRHA, University of Reading.
John Michie, ‘Community standards — it sounds all right — but what does it mean?’, Bulletin, 26 September 1970, pp. 47–48. Drafts of the article were substantially harder-hitting than the eventually published version. Michie noted that the postmaster-general could refuse to register publications, and that registration of publishers — required in Victoria and New South Wales — could be revoked by the attorney-general’s departments should they wish.
Hooker to Greene, 5 October 1970, JC 118/2, PRHA, University of Reading.
Chapter 9: Literature and liberty
Unless otherwise noted, this account of the trial draws on the court transcript, Kenneth Phillip Walters and Penguin Books Australia, 19 October 1970–26 October 1970, clippings from The Sydney Morning Herald, The Age, and the Melbourne Herald, and the account provided in ‘Notes from the trial of a notorious onanist’, Sunday Review, 25 October 1970, p. 10.
For a useful and informative overview of the tactics adopted by prosecutors during obscenity trials, see Charles Renbar’s End of Obscenity (1986).
Author’s interview with Stephen Charles, 10 December 2018.
Michie to Greene, 9 October 1970, JC 118/2, PRHA, University of Reading.
Author’s interview with Stephen Charles, 10 December 2018. McLaren wrote later that the defence witnesses seemed to spend more time waiting outside the court than they did inside testifying; see McLaren, 1996, p. 195.
Greene to Michie, 19 October 1970, JC 118/2, PRHA, University of Reading.
Seven Types of Ambiguity, published in 1930 and authored by literary critic William Empson, was instrumental to the founding of New Criticism and is predicated on mining layers of meaning, irony, ambiguity, complexity, and difficulty in poetic works.
‘Notes from the trial of a notorious onanist’, Sunday Review, 25 October 1970, p. 10.
Michie to Greene, 28 October 1970, JC 118/2, PRHA, University of Reading.
Author’s correspondence with Dennis Douglas, 5, 8, 11, and 12 January 2019.
Author’s interview with Brian Kiernan, 1 August 2019.
Notes kept by Stephen Charles, copy in possession of the author.
‘Notes from the trial of a notorious onanist’, Sunday Review, 25 October 1970, p. 10.
Buckley, 1991, p. 35.
Author’s interview with Jennifer Strauss, 6 December 2018.
Author’s interview with Hilary McPhee, 6 March 2019.
Author’s interview with Joanne Lee Dow, 10 December 2018.
Author’s interview with Lucy Frost, 27 November 2018.
Author’s interview with Jennifer Gribble, 5 September 2019.
Persuaded to appear at the trial by Geoffrey Dutton and Graham C. Greene, White joked with a friend that his evidence would hinge on the book’s capacity to arouse him. Where Lady Chatterley’s Lover had given him an erection, and thus was pornographic, he said, Portnoy’s Complaint had failed to do so — and thus was not. See Marr, 2008, p. 465.
McPhee, 2001, p. 108.
Dutton, 1996, p. 112.
White to Maschler, 1 November 1970, in White, 1994, p. 368.
Author’s interview with Brian Kiernan, 1 August 2019.
Chapter 10: Peppercorns and pyrrhic victories
Unless otherwise noted, this account of the sentencing hearing is drawn from a transcript of the verdict hearing in the author’s possession; a copy of Ross’s decision, 9 November 1970, NAA: A425, 72/4378; and notes made by Hilary McPhee on 9 November 1970 and a letter sent by McPhee to Julie Rigg, dated 13 November 1970, both of which may be found in the papers of Hilary McPhee, NLA MS Acc.13.076, Box 61.
Author’s interview with Peter Froelich, 13 December 2019.
Author’s interview with Stephen Charles, 6 December 2019.
Michie to Greene, 28 October 1970, JC 118/2, PRHA, University of Reading.
Author’s interview with Hilary McPhee, 6 March 2019.
‘Minutes of Penguin Books Australia Limited, Directors Meeting, 5 November 1970’, p. 2, D1294/4/5/1/1, Penguin Archive, University of Bristol, UK.
‘“Portnoy” ban battle is not yet ended’, SMH, 10 November 1970, p. 6.
Michie to Greene, 10 November 1970, JC 118/2, PRHA, University of Reading.
Hooker to Greene, 26 November 1970, ibid.
‘Portnoy’s puzzle’, Age, 13 November 1970, p. 9.
‘Uninformative verdict’, Canberra Times, 10 November 1970, p. 2. There also appears to have been some division between the Department of Customs and Excise and the Victorian Chief Secretary’s office. Sending a copy of Ross’s judgement to the first assistant comptroller-general, D. Reid, on 12 November, the Chief Secretary’s office noted that copies of the court transcript could be purchased if the department would like them. ‘If Victoria can’t afford to give us any more copies,’ wrote Reid, on the letter, ‘we don’t want any!’ See Dillon to Reid, 12 November 1970, NAA: A425, 72/4378.
See, in particular, Neale’s report, 1 June 1969, and O’Neil’s report, both of which conceded the existence of literary merit in Portnoy’s Complaint; ibid.
Eric Willis, annotation, 9 December 1970, on Administrative assistance to Willis, 2 December 1970, NSWSA: NRS 906, 12/4121, item A69/950.
This account of the committal hearing draws from ‘Transcript, Central Court of Petty Sessions, 14 December 1970’, NSWSA: Case file, 2464 of 1970, 10/9387.
Author’s interview with Maureen Colman, 3 December 2018.
McKay to the Undersecretary, 27 October 1970, NSWSA: NRS 906, 12/4121, item A69/950.
Chapter 11: A kick in the ribs
Davis, in Fox, Oliver, and Layman (eds), 2017, p. 153.
As a longstanding member of the Communist Party of Australia (CPA), Broomhall was the subject of sustained surveillance from ASIO agents between the 1950s and (at least) the mid-1970s. See NAA: A6119, 3873, 3894, 3875, 3890, and 3891.
‘Rush for Portnoys — sell out’, Daily News, 8 September 1970, p. 3.
‘Police seize 18 copies of Portnoy’, West Australian, 11 September 1970, p. 9.
Note of CPA meeting, October 1970, NAA: A6119, 3891.
Jack Coulter, ‘Two charged over Portnoy’, Daily News, 14 September 1970, p. 2.
Aggregated notes of CPA meeting, 25 October 1970, NAA: A6119, 3891.
‘Beware the ideas’, Bulletin, 30 December 1972, pp. 8–9.
Author’s interview with Ian Viner, 28 May 2019. He was also an unsuccessful candidate for the Liberal Party at the 1969 election; in two years’ time, he would be elected to the federal parliament and would serve as a minister in the Fraser government.
Except where otherwise indicated, this account of the trial is drawn from the notes of evidence of N.J. Malley SM in Police v Broomhall, Court of Petty Sessions, Perth, charge no. 611/70.
Davies, 1978, p. 35.
Ibid.
Ibid., p. 34.
Author’s interview with Ian Viner, 28 May 2019.
Davies, 1978, p. 35.
Author’s interview with Ian Viner, 28 May 2019.
&n
bsp; Davis, in Fox, Oliver, and Layman, 2017, p. 157.
Davies, 1978, p. 36.
Colebatch would come to regret his appearance at the trial. Author’s interview with Hal Colebatch, 10 May 2019.
N.J. Malley, ‘Reserved decision: Police v Broomhall ’, 18 January 1971, charge no. 6115/70, NAA: A425, 72/4378. See also ‘Portnoy’s WA win’, Tribune, 27 January 1971, p. 3; ‘Obscene, but win to Portnoy’, Sun, 19 January 1971, p. 7; and ‘Magistrate rejects Portnoy charges’, West Australian, 19 January 1971, p. 2.
‘Portnoy books given back’, Daily Mirror, 12 February 1971, p. 77.
‘Rush to buy Portnoy’s’, Daily News, 19 January 1971, p. 5.
Notes of meeting, 9 March 1971, NAA: A6119, 3891. Self-congratulations were still being made at the end of the year. Gandini was heard to tell a CPA meeting that ‘many hundreds of dollars’ in advertising had been saved thanks to the publicity the Portnoy trial had afforded the CPA. See Aggregate meeting, 1 December 1971, NAA: A6119, 3892.
Davies, 1978, p. 34. For his part, Viner was unfussed: ‘You win some, you lose some.’ He had thought the verdict likely. The array and number of witnesses testifying to the literary merit of Portnoy’s Complaint meant that the strength of the evidence in the case was against the prosecution, he said. And although he believed that Malley’s reading of the act and the exemption it gave was ‘literal’, he believed it was a reasonable verdict on the basis of the evidence. Of course, he added, ‘All judges’ rulings are correct — until they’re overturned.’
Chipp to Craig, 29 January 1971, NAA: A425, 72/4378.
Craig to Chipp, 19 February 1971, ibid.
Jerry Dolan, ‘Amendments to Indecent Publications Act’, 27 May 1971, Premier’s Department, S1228–cons1819, item 1971/465, cabinet meeting 1 June 1971, SROWA.
John Tonkin, handwritten note, ‘Amendments to Indecent Publications Act’, 1 June 1971, Premier’s Department, S1228–cons1819, item 1971/465, cabinet meeting 1 June 1971, SROWA. A survey of the Indecent Publications Act and its amendments, on the AustLII database, confirms that there were no amendments made to the act between 1967 and 1972.
‘Ban off book but no rush’, SMH, 10 January 1971, p. 46.
‘Portnoy hearing to go on’, SMH, 20 January 1971, p. 2.
Chapter 12: The beginning of the game
Keesing, 1988, pp. 206–07.
There is some ambiguity over Penguin’s involvement in the NSW trial. David Marr recalled that the file retained by Allen Allen & Hemsley was marked Penguin, not Angus & Robertson. Others involved do not recall if this was so. It is possible that Penguin’s solicitors in Victoria, Mallesons, lent material to Allen Allen & Hemsley for preparation of the NSW case. There was a longstanding, if informal, relationship at this time between Mallesons and Allens, each of which at this time largely confined its activities to its respective home state.
David Marr, ‘How Portnoy’s Complaint made Australia a better place’, Guardian, 26 May 2018.
Meagher, 1985, p. 8.
Kenny and Vine-Hall to McKay, 17 September 1971, NSWSA: NRS 906, 12/4121, item A69/950.
Kenny and Vine-Hall to McKay, 17 September 1971, NSWSA: NRS 906, 12/4121, item A69/950.
‘QC’s defence of Portnoy’, Daily Telegraph, 3 February 1971, p. 10; ‘Detectives’ denial over Portnoy’, SMH, 3 February 1971, p. 3.
Unless otherwise noted, what follows is drawn from the transcript: see NSWSA: NRS 2713, 19/8516.
See Trudy Storey, ‘Judge Goran retires on his 70th birthday’, SMH, 24 May 1984. In the trial against Portnoy, Goran would show considerable interest in the nature of the book and seemed to be genuinely of an open mind on whether it was obscene. Much later, he would comment that a judge needed to interpret what a community wanted: ‘He has to go out and speak to people he has got to make it his business to live amongst the people and keep his ears open.’ He would also have considerable interest in civil liberties cases: when assigned to hear Anne Summers’ appeal against a conviction for use of unseemly language on a Sydney street in 1975, Goran put the arresting officer ‘through far more paces than would ordinarily occur in a simple language case’, and, after ruling that Summers’ reaction and language was entirely appropriate in the circumstances, dismissed the charge and called her a ‘pioneer of free speech’: Summers, 1999, p. 312. In the course of his career, he would serve on six royal commissions, survive a knife attack in his chambers in 1975, and become chair of the Trotters Club of New South Wales.
‘Mr Justice W.P. Deane’, Australian Law Journal, vol. 56, no. 8, August 1982, p. 437; Mike Steketee, ‘His brilliant career’, Weekend Australian, 26–27 August 1995, ‘Focus’ supplement, p. 23.
Garry Sturgess, ‘High Court job favourite vindicates the bookies’, Age, 26 June 1982, p. 12.
Author’s interview with Reginald Barrett, 4 July 2019.
Ibid.
Author’s interview with Malcolm Oakes, 26 June 2019.
Author’s interview with David Marr, 22 November 2018.
Chapter 13: The subject of expert evidence
Deane’s comments echoed the language used by Mr Justice Stable in his summing-up during the 1956 prosecution of British publisher Secker & Warburg for its publication of Stanley Kauffmann’s The Philanderer. Stable told the jury: ‘Are we to take our literary standards as being the level of something that is suitable for a fourteen-year-old schoolgirl? … Of course not. A mass of literature, great literature, from many angles is wholly unsuitable for reading by the adolescent but that does not mean that the publisher is guilty of a criminal offence for making those works available to the general public.’ See R v Martin Secker & Warburg Ltd [1954] 1 WLR 1138.
‘QC’s defence of Portnoy’, Daily Telegraph, 3 February 1971, p. 10.
Neville, 1995, pp. 36–46.
Author’s interview with Harry Heseltine, 1 August 2018.
Kenny had thought of the objection (which was based on ambiguous wording in the Obscene and Indecent Publications Act) before the trial. Aware that it would likely prompt an unfavourable response from the public should it succeed, he had approached the government for its view of his using it. ‘I see no reason why the lawyers should not be given a free hand,’ Eric Willis responded. ‘The defence would not hesitate to use any loophole it can find.’ See Eric Willis annotation, 28 January 1971, on Undersecretary for Justice to Willis, 26 January 1971, NSWSA: NRS 906, 12/4121, item A69/950.
Kenny and Vine-Hall to McKay, 17 September 1971, ibid.
Coleman, 1963, pp. 115–16.
Keesing, 1988, pp. 206–07.
Author’s interview with Paul Grainger, 30 January 2019.
Author’s interview with Margaret Harris, 28 November 2018.
Kenny and Vine-Hall to McKay, 17 September 1971, NSWSA: NRS 906, 12/4121, item A69/950.
Author’s interview with David Marr, 22 November 2018.
Author’s interview with Maureen Colman, 3 December 2018.
Ibid.
Author’s interview with Margaret Harris, 28 November 2018.
Author’s interview with David Marr, 22 November 2018; see also Marr, 1999, p. 181.
White to Dutton, 1 February 1971, in White, 1994, p. 375–76.
Author’s interview with David Marr, 22 November 2018; see also Marr, 2008 [1991], p. 466.
White, quoted in Marr, 2008 [1991], p. 467.
Legge (ed.), 1971, p. 194.
Kenny and Vine-Hall to McKay, 17 September 1971, NSWSA: NRS 906, 12/4121, item A69/950.
Ibid.
Chapter 14: Figures in dusty light
Author’s interview with David Marr, 22 November 2018.
‘48 books taken off banned list’, SMH, 12 February 1971, p. 3.
Michie to Greene, 15 April 1971, JC 118/2, PRHA, University of Reading.
; Klugman and Chipp, 16 February 1971, CPD HoR, vol. 71, p. 17.
For the debate, see CPD HoR, vol. 71, 22 February 1971, pp. 439–69.
See CPD HoR, vol. 71, 23 February 1971, pp. 490–501.
‘Portnoy’s Complaint’, Woroni, 22 February 1971, p. 11.
‘Portnoy sold at ANU’, Canberra Times, 23 February 1971, p. 7.
‘Periodical prompts ANU Bill change’, Canberra Times, 26 February 1971, p. 3.
‘Portnoy is too obscene for words’, Canberra Times, 26 March 1971, p. 3.
‘Bond for bookseller’, Canberra Times, 2 April 1971, p. 8.
‘The puzzled penis’, Togatus, vol. 4, no. 1, March 1970.
Author’s interview with Charles Wooley, 8 February 2019.
Ibid.
‘Portnoy trial’, Canberra Times, 11 March 1971, p. 8.
Author’s interview with John Reid, 12 December 2018.
Author’s interview with Sir Max Bingham, 14 February 2019.
This draws on ‘Transcript of Police v Fullers Bookshop’, 10 March 1971, copy in the author’s possession.
‘Police v Fuller’s Bookshop Pty Ltd’, magistrate’s ruling, copy in the author’s possession.
Transcript of Reid’s committal hearing, 10 March 1971, copy in the author’s possession.
The Crown subsequently suggested that, as the charge against Fullers and Pearce had been dismissed, it was unreasonable to proceed against Reid. Most doubted it.
‘Portnoy to go to higher court’, Canberra Times, 18 March 1971, p. 15.
Penguin’s appeal, O/R 6665.
Michie to Greene, 15 April 1971, JC 118/2, PRHA, University of Reading.
‘No government relaxation on Portnoy’s Complaint’, Canberra Times, 17 February 1971, p. 8.
Eric Willis annotation, 17 February 1971, Senior clerk to Willis, 16 February 1971, NSWSA: NRS 906, 12/4121, item A69/950.
P.J. Kenny to Undersecretary of Justice, ‘Advice on no bill application’, 17 May 1971, NSWSA: Case file, 2464 of 1970, 10/9387.
‘Portnoy’s Complaint’, 18 February 1971, NSWSA: NRS 906, 12/4121, item A69/950.
The Trials of Portnoy Page 30