writers should be afraid
The Scam as "evidence".
I wrote The Scam in 1980-83 and published
it at the end of 1986. Among other controversies at the time, in
July 1987, the Justice Department bought 23 copies for prison libraries
but banned the book and recalled it before prisoners could see it.
A newspaper article at the time said: "A Justice Department
spokesman was unable to comment yesterday". From my experience in
newspapers, this is the language of disapproval. The department denied
the ban but the documents, the original purchase order and the ban sent
out to prisons, [see above] have been obtained, despite official obstruction
during several years of inquiries.
The Scam reappeared in 1991, used as "evidence"
A subplot of corruption in The Scam would explain
why the book was used in criminal proceedings. In one key scene, corrupt
lawyer Russell Hayman has been given a lead to the anti-hero of
the story by a police officer doing the lawyer an unofficial favour.
The lawyer meets the hero, Simon Hayes, at lunch in the Wellington
Club, and blackmails him into taking on a debt-collecting job on behalf
of tycoon and wife-abuser Bretton Clifford by threatening to reveal knowledge
of a private hit Hayes has done in Queenstown as the story opens.
1. When prosecutor John Upton and "defence"
counsel John Billington were deciding how to conduct
the trial, they agreed on what would and would not be used as
evidence. The Scam was introduced as new evidence, of which I was
not aware, at the end of proceedings, with two scenes in which women
offer themselves to men for advantages marked for the jury's attention
and a copy of the book given to them to take out while they deliberated.
This means Upton had looked through the book for
scenes that he could use to his advantage. He would therefore have
been aware of this scene, as would Billington. Billington made
no objection at the time to the use of The Scam as evidence, even
though I was not aware that it would be used, and he has since defended
the prosecution's use of The Scam.
2. From their point of view, The Scam
has points to which they as lawyers could be expected to object:
a. The corrupt lawyer character,
b. That Hayman has a bank account
in a false name;
c. That he is arranging for what
may turn out to be a killing;
d. That Hayman has been given Hayes'
name by another character, a police officer who owes
him a favour;
e. That the scene is set in the Wellington
Club, of which Billington is a member, as also are respectable [males
only allowed until very recently] members of Wellington's business and
3. Missed or neglected was a scene
in which Hayman's client, the arrogant tycoon Clifford, forces himself
on his long-suffering wife Sarah; as the story finishes she leaves him
without provoking any hostilities. Clifford meets his end,
as is right and proper, but not by her agency. Her subplot is at
once a cautionary tale and an example of how to deal with a difficult
situation without making things worse than necessary.
4. There are other scenes in which
Hayman appears in a poor light; Upton and Billington could not have been
expected to do anything other than take exception to these scenes and to
the story, bleak as it is, as a whole.
5. Upton told the jury in closing
that because I write fiction, I could not be expected to tell the
At least one review of The Scam picks out the
theme that took most work of all, how abused wife Sarah gets out
of her abusive marriage without starting a war, which she could have
Upton missed a less dramatic scene, which might
have been too subtle for him to find on a superficial skim through the
book looking for scenes to use as weapons, where Sarah's nasty tycoon
husband forces himself on her... and she just waits, then gets away
when she can and ignores all the foregoing. This is a rape scene,
and it was most important to the story.
The manuscript of The Scam was read before publication
by Tom Goddard, as he was before his appointment as a judge,
acknowledged as an expert in libel and
employed by newspapers to vet potentially contentious articles before publication:
he assured me there was no cause for concern. The Scam was also was
assessed from strict feminist and other women's viewpoints. Fool women
are shown as fools, brute men are made plain. Good examples
are good irrespective of gender. The police had seized [and kept
for two years] more than 1000 pages of printouts from the house,
the first draft of another story still in development. This new work
is a kidnap story, with some scenes that are meant to be scary, worse than
anything in The Scam, but as usual by suggestion rather than gory detail,
crediting the reader with imagination and intelligence. I was certain and
that some of these scenes would be used.
Otago University Professor of Law Richard Sutton,
who is also a member of the Law Commission, says it was monstrous to use
The Scam to jail me -- and the book was inadmissible.
Former judge Michael Guest has said that the judge,
the late John Rabone, should have stopped the trial when Upton introduced
the book, even if defence counsel John Billington did not object.
I had warned Billington of common fallacies about writers, and insisted
that expert evidence be called about the distinction between fact
and fiction, but he scorned this. So the jury was sent out with a copy
of the book to read and the admonition to the effect that because I write
fiction, they could not expect me to tell the truth.
Worse, when then Pen NZ President Kevin Ireland
queried Billington about the use of The Scam, he replied defending the
prosecution's use of the book, and adding gratuitous comments.
These two letters are on file; Billington's is
a breach of the Law Practitioners' Act and forms part of an extensive complaint
against him. He withheld PEN's letter of support for more than three
Sara Whyatt of International Pen's Writers in
Prison Committee in London suggested that I contact other writers'
organisations on the use of The Scam as evidence, and has done so herself.
PEN has lists of hundreds of cases of journalists and writers being punished,
jailed, beaten, and killed.
None of my advisers or other contacts had
heard of books' being used in this manner, except against writers
in countries as repressive as the former Soviet Union.
This case leaves a dangerous precedent that can
be used in the future in NZ and other countries with a similar legal
No writer can be defended against any accusation
at all. Any writer of any fiction [poet, lyricist, playwright, TV
scriptwriter, film scriptwriter, etc] is vulnerable to a similar attack,
all the more so because of this case.
If any such writer in a Commonwealth country,
where this case may be used as a precedent, is so threatened, a file
on this case and legal advice on negating its effect are available