One of Australia’s great literary hoaxes was played on the intellectual magazine Angry Penguins and its editor Max Harris. This came about when the sister of the dead Ern Malley - born in Liverpool in 1918 and who died of Graves’ disease aged 24 in 1943 - modestly submitted 16 of his poems in the style of Dylan Thomas, saying she did not understand them but thought they might be publishable.

Harris wrote back asking for biographical details and heard that ‘our father died as a result of war wounds in 1920, and the family came out to Australia, where mother had relations... He did not do well at school... Mother died August 1933 and Ern left school’. He had been a car mechanic and sold insurance policies.

In early June 1944, a special commemorative edition of Angry Penguins with a cover designed by Sidney Nolan was dedicated to Ern Malley’s poetry and brief life. It was received enthusiastically by sections of the intelligentsia.

In fact, Ern Malley had a major drawback. His work was that of James McAuley and Harold Stewart, two soldiers and poets manqué whiling away an afternoon at the Victoria Barracks in Melbourne. The rules of the game had been that all words must come from books in front of them - Shakespeare, the Concise Oxford Dictionary, a dictionary of quotations, a handy pocket dictionary of English rhymes and a manual on mosquito control. The poems were typed on army typewriters and artificially aged with tea cup rings, smudgings and sunlight. It all came unstuck when they told one too many people.

Not only was the unfortunate Harris deceived but, in September 1944, he was also prosecuted under the Indecent Advertisements Act. Detective Jacobus Vogelesang, acting for the South Australian police, objected to the poem Egyptian Register because it contained the word ‘genitals’. He also objected to ‘incestuous’: ‘I don’t know what that means but I think there is a suggestion of indecency about it’. In the 1940s, Australian courts were no more willing to listen to literary-merit defences than were the English courts a decade later. Despite a spirited effort by Harris, who claimed the poems were no more suggestive than Chaucer and Shakespeare, and a psychiatrist who told the court ‘the sexual references in the Malley poems are too involved in their meaning to have a direct sexual appeal to the reader’, Harris was fined £5.

James Morton is a writer and former criminal defence solicitor