Whiteley on Trial

by Gabriella Coslovich

  Gant’s new defence team, funded by Victoria Legal Aid, was headed by Trevor Wraight, QC, a tall, lean, pensive man in his fifties. Simon Moodie, from Rob Stary’s law firm, was the instructing solicitor and Stary himself would attend on critical days of the trial.

  ‘If they go down, it’s jail,’ Wraight reminded me during that first week in court, a serious look on his furrowed face. He told me he had taken on Gant’s defence in preference to a better-paying private case. The art fraud trial was higher profile, more interesting and the Supreme Court ‘a nicer jurisdiction’, he said. I wasn’t entirely sure what he meant. I could only think of the Supreme Court’s grand classical architecture, the air of pomp and ceremony, the tipstaff in long coats with brocade trim and gold buttons.

  Wraight’s first request on the first day of the pre-trial hearings was for references to Gant’s previous court appearances to be removed from the Australasian Legal Information Institute website. Gant’s slate was being wiped clean in preparation for his appearance before a jury. Brett Whiteley and Wendy Whiteley would not be given the same privilege. Their transgressions—drug addiction, divorce—would be raked over by the defence.

  The fourth day of the pre-trial hearings was 7 April, the anniversary of Brett Whiteley’s birthday. He would have been seventy-seven. That day, at Wraight’s request, the glass screens shielding Gant and Siddique in the dock were removed. I am not proud to say that the removal of the glass screens made me cross. Why were Gant and Siddique being given this privilege? I read it as a sign that somehow art fraud wasn’t considered a serious crime. It was something that happened to rich suckers. A sign of how trivial art was considered in this country—the supposed preserve of cultural ‘elites’. Didn’t the integrity of our cultural history matter? I had read what the mainstream thought. Conservative columnist Andrew Bolt had written about the case in his blog. In the comments section a ‘Davide’ had remarked: ‘Brett Whiteley’s stuff is crap in my opinion and I would not want to see that drug addled fool’s stuff hanging in my house.’ I told myself I was overreacting. Our legal system was based on the premise of a fair trial. One of my fellow scribes mentioned that studies had shown that glass screens in front of the dock made juries more likely to prejudice those sitting behind them. Gant and Siddique had secured their first small win.

  Had Elmyr de Hory been in court that first week? I had emailed him to ask whether he would be attending, but he avoided the question. I tried to find out a little more about who he was—‘How do you manage to be so close to the action without Peter Gant suspecting anything?’ The question was ignored.

  On Monday 11 April 2016, after a week of pre-trial hearings and legal argument, the trial began in earnest. Twelve people and two spares were chosen in anticipation of a long trial, four or five weeks, heading into winter. Into the jury box walked a stock clerk, two general managers, a travel consultant, a retired cabinet-maker, a retired public servant, a primary school teacher, a secretary, a sales representative, a receptionist, an administration officer, an information and communication technology manager, a trade worker and a retired telecommunication worker. Eight men and six women. Hand-picked by the accused.

  ‘Teacher, Travel Agent and Retiree to Decide on Whiteley’s $3.6 Million “Bad Hair Day” was the headline in The Australian Financial Review that weekend. The implication was clear—was this jury capable of deciding Australia’s largest ever alleged art fraud? The barristers brought the article to Justice Michael Croucher’s attention first thing Monday morning. The jury’s anonymity was enshrined in law, and while a person’s occupation was unlikely to identify them, the judge asked that the newspaper be contacted to address the matter. The offending reference was changed online to ‘Jurors to Decide …’ But I had to confront my own prejudices. I was not without doubts. As the daughter of a cabinet-maker, where did that leave me?

  ‘I think the paintings, like the accused, should remain innocent until proven otherwise,’ Wraight advised the judge after the jury had been dismissed for lunch. ‘I know the way they’ve been storing them, they’ve assumed guilt already.’

  Wraight was worried that the jury might want to touch the artworks, or ‘scratch’ them.

  ‘No-one’s allowed to do that,’ the judge reassured. He was a ruddy, round-faced man with black peaked eyebrows that stood out against his pale horsehair wig. ‘Some very reputable people in the art world considered these things were genuine. And, as you say, the presumption of innocence in a sense applies to these objects as well in the same way.’

  Remove all evidence of prior court cases from the Internet. Remove the glass screens from the dock. Treat the suspect paintings as though they were valuable works of art. Wraight was doing his job, and doing it well.

  Justin Stefanec and Shane Kenna laboured under the weight and size of the two chief exhibits, struggling to steer the unwieldy paintings around tight corners and into the back pews of the courtroom facing the jury box. I could hear them puffing as they wedged Big Blue Lavender Bay into the narrow pew behind the media seats, leaning it against the wood-panelled walls. Orange Lavender Bay sat in the next pew along. If only the paintings could speak.

  Susan Borg apologised for the delay in bringing them to court. No-one had wanted to touch them, she said.

  ‘We wouldn’t want that before the jury, I shouldn’t have thought, that no-one wanted to touch them,’ the judge replied.

  ‘Well, Your Honour, they’re worth either $4 million or four cents, we don’t know yet.’

  Justice Croucher ignored her wry comment.

  During the week of pre-trial hearings and legal argument, the relationship between Borg and Justice Croucher had often seemed strained. He had a reputation as a lateral thinker, who kept prosecutors on their toes. Borg’s manner seemed to irritate him. He challenged her application of the law and the strength of the prosecution’s evidence that sought to prove an agreement between Gant and Siddique. Borg was submitting that a joint criminal enterprise existed between the two men, and while this might have seemed an obvious connection to draw, the case needed to be made precisely, according to the principles of law. In the Supreme Court, I was quickly learning, nothing was obvious, and nothing could be assumed. Borg needed to persuade the judge that Siddique should be liable for the actions of Gant and vice versa for all of the charges brought. She also needed to convince him of the admissibility of the conversation between Siddique and the ‘door man’ Richard Simon, in which the conservator was supposed to have said ‘the artwork to be painted on these doors is worth over a million dollars’.

  I watched with frustration as Borg struggled to make her case.

  Wraight would have preferred that the paintings had been properly hung on the courtroom wall. But such redecoration would have required more than the judge’s permission. And so, when the jury returned from lunch, the paintings remained sitting on the back pews, casually propped up against the wall. There they stayed for the rest of the trial. The blue sat right behind me. I had forgotten how ridiculously large it was. It looked skin deep, superficial. The Disneyfication of Whiteley. How could Anita Archer not see it, I scribbled in my notebook. But then, it was easy for me to play art expert in hindsight.

  I did not envy Borg’s next task. She was about to present the prosecution case to the jury. How would she simplify this convoluted story of three paintings, two accused with eight charges between them, four victims, a complicated web of agents, and consecutive sales spanning three years? There were elements of this story that I was still discovering—I was astonished to hear Borg reveal that Lavender Bay through the Window, the painting Gant gave to Guy Angwin as security, had also previously been offered to Sydney art dealer Ralph Hobbs. And Archer had once again been the intermediary in the attempted sale.

  Gant and Siddique had three charges in common: the $2.5 million sale of Big Blue Lavender Bay to Andrew Pridham; the attempted $950 000 sale of Lavender Bay through the Window to Ralph Hobbs; and the $1.1 million sale of Orange Lavender B
ay to Steven Nasteski. Gant had two extra charges: giving Lavender Bay through the Window to Guy Angwin as security for an unpaid loan; and selling Orange Lavender Bay to Steven Drake for $122 000.

  I remembered Tom Gyorffy telling me that as an advocate he aimed to give juries confidence in their ability to make decisions. Borg seemed to be using precisely this tactic. Her voice was warm and comforting as she began to detail the crime.

  ‘Now, don’t be concerned about dates, lots of names, et cetera; this is just to give you a flavour of the evidence to come,’ she reassured. ‘By the time you hear all the evidence you will be able to picture who has said what.’

  Knowing how intricate the story was, I wasn’t so sure. Borg calmly and methodically took the jury through the elaborate tale of Gant and Siddique. The two had conspired to produce and sell fake artworks in the style of Brett Whiteley: Siddique using his knowledge and expertise as a conservator and restorer of art to produce the paintings; Gant using his expertise as an art dealer to sell the paintings as authentic works. Borg pointed to the newly arrived visitors—the big orange and blue paintings that now faced the jury. The third painting, known as Lavender Bay through the Window, had never been found.

  There was one other significant painting that she brought to the jury’s attention, View from the Sitting Room Window, Lavender Bay, the so-called ‘brown’ artwork Gant had purchased at auction in March 2007 and which had been delivered to Siddique’s Collingwood studio on 19 April 2007. The prosecution alleged that Siddique had used this authentic work as a template to help him create fake paintings in the style of Brett Whiteley.

  Borg turned to the materials Siddique had used to create the fakes—doors and 23-carat-gold, water-gilded frames. In July 2007, he ordered four doors from a company called Door Impressions. In August 2008, Siddique ordered another ten doors. Fourteen doors? It was the first time I had heard the extent of Siddique’s attraction to doors. Were the jurors also doing the sums? There were three paintings at the centre of this trial—what had happened to the other eleven doors?

  Borg did not explain. She moved on, telling the jury that two of the doors from the first delivery were consistent with the sizes of the blue painting and the orange painting, and that one of the doors from both the first delivery and second delivery matched the size of the missing painting. The timing of the doors’ delivery coincided with the creation of the paintings consistent with their size.

  Siddique’s colleague Guy Morel, she continued, had secretly taken photographs of paintings in progress in Siddique’s locked storeroom: eight photos of Big Blue Lavender Bay in various stages of production in October 2007, six of Orange Lavender Bay from October to December 2008, and three of the missing Lavender Bay Through the Window from February to August 2009. The photos also showed art books opened to images of Whiteley works, and paint palettes daubed with the same colours as the paintings in progress. The authentic ‘brown’ painting was also seen in the storeroom alongside each of the paintings in progress, being used as a visual aid.

  Frames, too, were ordered, from Antonio Rincon who, ‘funnily enough’, knew how to build Whiteley’s trademark 23-carat-gold, water-gilded frames as he had been taught by Whiteley’s chief framer, Brett Lichtenstein.

  Once the paintings were made, Gant’s expertise came into play. Borg explained what ‘provenance’ meant and how Gant had fabricated a story about the three paintings’ history of ownership. He had told Anita Archer that his client Robert Le Tet had commissioned Big Blue Lavender Bay directly from Brett Whiteley in 1988, dealing with Whiteley’s studio assistant Christian Quintas. Borg replayed the story I knew well, about Archer going to Le Tet’s office in South Melbourne to view Big Blue Lavender Bay. About Pridham telephoning Archer on 28 November 2007 to say he wanted to buy the painting for the full $2.5 million.

  ‘Robert Le Tet has since stated, and you will hear him, that he has never met Brett Whiteley, has never owned the painting Lavender Bay, and did not sign the documents of provenance for the Blue Lavender Bay,’ Borg told the jury.

  How was the defence going to get around that one? If you had a genuine painting for sale, why would you need to forge someone’s signature and create a false history of ownership? This seemed devastating evidence to me.

  She told the jury that University of Melbourne experts Robyn Sloggett and Vanessa Kowalski had examined the paintings and concluded that they could not be attributed to Whiteley. I noted that Borg focused on the stylistic inconsistencies between the suspect painting and Whiteley’s known works. She said nothing about the seemingly young age of the paint. Had the controversial solvency tests been dumped as part of the prosecution’s evidence? Were the tests too vulnerable to being ripped apart by the defence? And if so, what did this say about Sloggett and Kowalski’s methodology? Borg noted that infra-red images taken of the paintings showed underdrawings that were ‘identical’ with those shown in the photos taken by Morel.

  Borg moved on to the sale of Orange Lavender Bay to Steven Nasteski in December 2009, mediated by Gant’s ‘agent’ John Playfoot. She told the jury that when concerns about the orange painting were raised by Wendy Whiteley, Nasteski asked Playfoot for documents to verify the artwork’s provenance. Playfoot provided three things: a letter in which he stated, ‘I know the seller and he’s owned the work for 20 years’; a consignment note supposedly from 1988 listing Orange Lavender Bay, as well as the two other suspect Whiteleys; and a 1989 art catalogue titled A Private Affair—Peter Gant Fine Art, that included an image of Orange Lavender Bay. The prosecution was alleging that the consignment note and catalogue were themselves forgeries: a real consignment book had been tampered with to include information about the three suspect Whiteleys in retrospect, and the catalogue was made after the creation of the false paintings.

  I learnt that on 12 June 2010, when doubts were mounting, Gant called Nasteski asking if he could have time to sell the painting to somebody else. He was too late—Nasteski told him that the painting had been sent off for testing. It was only at this point that Nasteski realised that Gant was behind Orange Lavender Bay.

  But that wasn’t the end of Gant’s exploits, the jury heard. In 2010, he gave Lavender Bay through the Window to Angwin as security for an unpaid loan, and in August 2013 sold Orange Lavender Bay to Steven Drake for the bargain price of $122 000, assuring him the painting was genuine.

  What were the ‘ordinary men and women’ of the jury making of this coterie of buyers and sellers? A man who was cautioned against buying a $1.1 million painting, and bought it anyway. Another who agreed to pay $2.5 million for a painting he hadn’t even seen in person. Yet another who extended his home loan to lend $950 000 to Gant for an ‘investment opportunity’, and did not bother to confirm the loan in writing until 1 December 2010, when the loan was four months overdue and not a single repayment had been made. And finally, a man who paid $122 000 for a painting that had been disparaged in the media as a fake. The jurors seemed unperturbed by the revelations—they betrayed no emotion.

  During Borg’s address, Siddique furiously took notes. Gant took naps.

  Siddique grabbed a fresh pen from his son. Trevor Wraight’s opening address was about to begin. It was time for the jury to hear the defence’s version of events.

  Wraight began by dispelling any notion of his client’s guilt. His approach was cool and level-headed—an approach he may have been hoping the jury would emulate. ‘Gant sits before you as an innocent man. We want to make one thing very clear at the outset: the three paintings that were arranged to be sold by Peter Gant were not forgeries.’

  It was not up to Gant to prove that the paintings were genuine, he reminded the jury. The burden of proof lay entirely with the Crown, and the Crown’s evidence was not capable of proving beyond reasonable doubt that the paintings were not genuine.

  Gant had bought the three paintings directly from Christian Quintas in 1988, Wraight said. So the story had changed? Gant was now professing to be the owner of these works? He had
previously claimed that Le Tet was the vendor of Big Blue Lavender Bay, and unnamed Sydney collectors were supposedly selling Orange Lavender Bay and Lavender Bay Through the Window. But if Gant had owned these three paintings since 1988, why didn’t he declare them as assets during his two bankruptcies? Indeed, why hadn’t he sold them to avoid bankruptcy?

  What about Morel’s photos? How would Wraight explain those? Simple. The defence did not deny that the photos taken at Easey Street showed copies of Whiteley-style paintings at various stages of completion. But what was produced at Easey Street was just that—copies.

  ‘It’s not illegal to copy a painting,’ Wraight told the jury. ‘It’s not even illegal to write “Brett Whiteley” on it. Students do it all the time, art students, painters, they do it to learn their craft, they might do it as a bit of a challenge, but as they reproduce a painting they try and copy the techniques, the styles, the materials that are used.’

  I suppressed the impulse to laugh. Siddique was creating innocent copies of Whiteley works at his studio? What on earth for? He was hardly a student of art. Why would a man known to constantly complain about money invest time and thousands of dollars on paint, doors, frames and other raw materials to create huge Whiteley-esque paintings that had no market value? In any case, what Siddique appeared to be creating in his storeroom were not exact copies, but entirely new compositions based on Whiteley’s works.

  Wraight ploughed on. ‘What we squarely say today, is that what happened at Easey Street and what happened in relation to the sales of these paintings are completely separate stories, and the Crown, we say, is unable to link the two.’

  But if the paintings in court were authentic—where had Siddique’s copies ended up? No explanation given.