Whiteley on Trial

by Gabriella Coslovich

  Rincon devised a new method whereby the baguette would sit on top of the canvas or board without needing to be nailed in. This meant that the painting was partially obscured by the black border, but if the frame were ever removed neither the frame nor canvas or board would be damaged. Ribbands asked Rincon to demonstrate his ‘slip’ method with the bits of frame and wood in his hands. The framer did so nervously. He looked as though he were walking through a field laden with traps. He cautiously slotted together the pieces of wood. The defence would use this little piece of theatre to argue that Big Blue Lavender Bay had nail marks on the side of its wooden support, suggesting that its original Whiteley frame had been removed and replaced with Rincon’s.

  The defence needed to account for Rincon’s three frames. One was on Big Blue Lavender Bay—but where were the other two? Ribbands put it to Rincon that one of his frames had ended up on a Whiteley painting called Baudelaire’s Drive, which was in a private collection. But Rincon said that the frame Ribbands was referring to would have been too big for Baudelaire’s Drive. Ribbands was more interested in whether Rincon had ever examined the painting. During the committal Rincon had told the court that he would be happy to look at Baudelaire’s Drive to see whether it was indeed his frame on the work—had the police asked him to do so? No, they had not.

  Another of his frames, Ribbands said, had ended up on View from the Sitting Room Window, Lavender Bay, the ‘brown’ painting that no-one disputed was by Brett Whiteley, which was also now in a private collection. Had the police asked him to look at this painting and check whether the frame on it was his? No, they had not, Rincon said. In this instance he agreed that the frame Ribbands was referring to would have been a good fit for the work. A year had passed between the committal and the trial, and the police had failed to follow up. I wondered why. It seemed such a simple thing.

  But having compared the dimensions of Rincon’s frames to those of the three suspect paintings listed on Gant’s consignment note, I knew there was another hypothesis that Ribbands was not putting forward. The frame he claimed had gone on the ‘brown’ painting measured 122.7 centimetres by 198.7 centimetres. It was equally capable of fitting on the missing painting. Who was to say that’s not where it had ended up? And what about the orange painting? Rincon had said the frame was not his—so whose frame was it?

  Rincon was released from the stand at 4 p.m. As we prepared to leave court that afternoon, Wraight told me that he didn’t want the dispute over Simon’s evidence to go to an ‘interlocutory’.

  ‘We don’t want to lose this judge, this jury, or this prosecutor,’ he said, with a tense half-smile.

  That afternoon there had been a new face in court, a wigged barrister observing from the media benches. At day’s end I asked about his interest in the case. He told me his wife was an artist who had known Gant for forty years and had been exhibited by the dealer. Gant had always been slow in paying her after exhibitions, and sometimes would pay in kind, with other artworks. The couple would now look at the artworks Gant had given them and wonder about their legitimacy.

  The barrister had come equipped with a magnifying glass that he now held up to the tiny signature at the bottom of the orange painting, comparing it to the signature on the cover of Sandra McGrath’s book. He did not look convinced.

  The jury would never hear the words ‘the artwork to be painted on these doors is worth over a million dollars’. On the morning of 14 April, the judge ruled that Richard Simon’s conversation with Siddique was inadmissible. Borg looked shattered as the judge explained his ruling, criticising her approach along the way. She had tested his patience.

  Siddique’s comment was in the future tense, the judge said. It referred to ‘doors’ plural, suggesting that at least two or more paintings would be created in the future. The danger of unfair prejudice was substantial. The comment would leave the jury with the impression that ‘Mr Siddique and Mr Gant’ were to produce more paintings that were not charged.

  ‘Having read his evidence at the committal, he strikes me as the sort of witness who would have to be controlled,’ the judge said of the wilful Mr Simon.

  Just before midday, Borg went out to speak to her supposedly wayward witness. Her face was flushed when she walked back into court. ‘He’s taking a little time to calm down,’ she said softly to the judge’s associate. The jurors were called in and the judge explained why they had been kept waiting all morning. Counsel was attempting to condense the evidence and present only what was relevant. It would save time in the long run, the judge said. I wondered whether I would ever be able to trust such an explanation in the future if I were to hear it while sitting on a jury.

  After almost three days on stand-by, Simon had his cameo. He walked decisively into the courtroom, face tight. Neither Siddique nor Gant looked at him. They didn’t have to avert their gazes for long. Simon was in the witness box for less than ten minutes. He confirmed his occupation and the delivery of doors to Siddique. He identified tax invoices, bank statements and reconciliation reports. All the jury heard him say were variations of the affirmative: ‘That’s correct’, ‘Yes, I did’, ‘Yes, I can say that’, ‘Yes, he would have’, ‘Yes, that’s correct, clean faces and no edge strips’.

  Simon’s evidence had been whittled away until only a pile of woodchips was left. The defence barristers did not cross-examine him. There was no need.

  Was it possible that I was as gutted as Borg by the scuttling of Simon’s evidence? One of the best performances of the committal had ended up on the cutting room floor. The answer to my gloom was lunch with Tom Gyorffy and an associate at his favourite Italian restaurant on Little Bourke Street. When I recounted what had just happened, Gyorffy reminded me that Simon said what he did at the committal because Richter had hounded him into it. It wasn’t because he was some sort of uncontrollable witness. Over a bottle of red, the lawyers attempted to lift my spirits, telling me to trust in the common sense of the jury. They shared a quote from the English humorist AP Herbert: ‘A jury is a device designed to prevent the law from degenerating into justice.’

  For the second time, Gyorffy received a significant call while I was with him. I never brought him luck. It was Borg. She wouldn’t be making an interlocutory appeal after all—the Director of Public Prosecutions hadn’t approved. Gyorffy had been set to lead her if the appeal went ahead, but now that wouldn’t be necessary.

  Walking back into court that afternoon, Stefanec told me about a text he had just received from Simon.

  ‘I’m round the corner having a beer and I can’t believe what happened,’ Simon wrote.

  ‘He was furious,’ Stefanec told me.

  We returned to court to hear the final witness of the day. Wraight’s junior counsel, Fiona Todd, began by asking if the witness could explain what was meant by a ‘trophy’ painting.

  I cringed. Anita Archer had described Big Blue Lavender Bay as a ‘trophy painting’ to Andrew Pridham? The same word that Gant had used when describing the painting to me. Except he had used it with contempt, and she had used it as a selling point. And Pridham had swallowed it. Full points to Archer for answering Todd’s question with a straight face.

  ‘So,’ she began, in her crisp English accent, ‘what I mean by that is that it is a painting that is so recognisable as being by an artist that it would sit like a trophy in your room. So, if you walk into a room and see someone’s trophy, you’re immediately thinking, oh, they are eminently a great sportsperson or something. So, if you see this painting, you go, oh, you are such an eminent collector that you could own a Whiteley Lavender Bay.’

  ‘It brings a kind of status and history with it, to the owner?’ Todd asked.

  ‘Absolutely … that’s what a trophy painting is.’

  Todd, an elegant woman who wore fishnet stockings beneath her long barrister’s gown, was gently plucking the choicest lines from emails Archer had sent Pridham encouraging him to buy Big Blue Lavender Bay. Lines designed to make one squirm. Archer ha
d compared the blue painting to Whiteley masterpieces The Balcony 2 and The Jacaranda Tree.

  ‘You tell Mr Pridham, “I know you will be thrilled once you see the painting in the flesh”,’ Todd said.

  ‘Yes.’

  ‘You describe it as “A very special picture to live with”?’

  ‘Yes.’

  ‘By 2010 you’re entering into an agreement to refund this picture?’

  ‘Yes.’

  In her disciplined black dress and knee-high black boots, Archer stood stoically in the witness box. She had been through worse when Pridham was pursuing her in the civil courts—proceedings that could not be mentioned here. At least Todd was kind enough not to quote from another of Archer’s emails, sent after Pridham had informed her he wanted to go ahead with the purchase: ‘Thank you very much for your phone call this morning. Lucky I didn’t choke on my weeties … I am very confident that you won’t be disappointed.’

  In his cross-examination, Remy van de Wiel used Archer to establish Siddique’s credentials and to propose an innocent explanation for Rincon’s frame being on Big Blue Lavender Bay.

  Archer confirmed that she had discussed Big Blue Lavender Bay with Siddique some time after Sloggett’s report found that it could not be attributed to Whiteley. He gave her a copy of an invoice sent to Gant for cleaning the picture—the invoice was dated 10 October 2007. Sloggett’s report had indicated that the painting had not been varnished, but Siddique went into technical detail about how he had in fact varnished the work.

  Siddique had told Archer that in order to varnish the painting he had to remove its frame, but in doing so, the original Lichtenstein frame was destroyed and so he had to order a new frame from Rincon. And that’s why there was a bit of blue paint on the frame: not because the paint was fresh, but because the varnish had softened the paint and when Siddique placed Rincon’s ‘slip’ frame on the artwork—remembering that Rincon’s slip method slightly covered the edges of the painting—some of the softened blue paint had marked it.

  ‘From your experience, you accepted that that was a totally reasonable proposition?’ van de Wiel asked.

  ‘Look, he told me this two years after we were investigating this painting; it doesn’t seem unreasonable to me,’ Archer said. ‘I’m not a framer, I’m not a conservator, I don’t know whether that’s actually the case.’

  Day ten of the trial was the day of sharp dressers. First on show was John Playfoot, wearing an ensemble fit for the pages of GQ magazine: lime green textured tie, light grey jacket, black pants, checked black-and-white shirt, brown crocodile skin shoes, his wavy grey hair slick with pomade. He sauntered into the courtroom, up into the witness stand, and recounted how eight or nine years ago Gant had told him over coffee that he was going to get a ‘really good Whiteley’.

  ‘From day one’ Gant had told him that Orange Lavender Bay was owned by Robert Le Tet. So Le Tet’s name had been used on the provenance of Orange Lavender Bay as well? This was explosive evidence, surely? Gant had told Playfoot the same story he’d told Archer about Big Blue Lavender Bay: the orange painting was hanging in Le Tet’s Sydney apartment which would soon be sold, and when the apartment was sold, the painting would be too. Orange Lavender Bay had also supposedly come ‘directly from Brett Whiteley’.

  Playfoot testified that Gant had only given him the catalogue A Private Affair after the orange painting had been sold to Nasteski and he had started ‘jumping up and down’ and asking questions about the painting’s provenance. But Playfoot had always known that Gant had given him a digital copy of the catalogue to pass on to Nasteski, not the original.

  ‘I thought everybody knew that. I knew that it was a digital copy,’ Playfoot said.

  Borg asked Playfoot about the conversation he’d had with Andrew Crawford about Orange Lavender Bay after the painting had been sent to Sydney.

  ‘Mr Playfoot, in regard to Mr Crawford’s experience, how would you describe him as someone who is able to look at a painting …’

  ‘Fairly good.’

  ‘Someone who has a good eye?’

  ‘Okay, yeah, in some areas.’

  ‘And with this good eye, did he explain to you his view, once he looked at the painting again, of the painting?’

  ‘No.’

  Borg brought the proceedings to a halt. The jury was dismissed and the witness asked to leave the room. Playfoot had changed his story. During the previous week’s pre-trial hearings, or so-called Basha Inquiry, Playfoot had described Crawford as having ‘an excellent’ eye and said that Crawford had told him that there was ‘something funny about this picture’. Now he was standing in the witness box saying he didn’t remember Crawford saying anything about the painting. Playfoot had gone from being ‘jovial’ and expansive during the pre-trial hearings to giving these ‘staccato-type responses’, Borg complained. The judge reminded her that during the Basha Inquiry, Playfoot had also said that he had Alzheimer’s. The judge had asked whether he was joking, and Playfoot had assured him he was not. Alzheimer’s? This was the first I had heard about Playfoot’s Alzheimer’s. The art world was a hive of gossip, but no-one had ever mentioned this.

  ‘There was no indication in any of the evidence that he gave that he was struggling,’ Borg said. ‘I’m not seeking to attempt to make him look as though he’s trying to avoid answering the question, but I would at the very least like to put to him that he had said that.’

  The defence agreed on the manner in which Borg could put the question, and the jury was called back in. Playfoot returned to the witness box.

  Borg tried once again to elicit his original comment. This time, she got more than she expected.

  ‘Do you recall having that conversation with Mr Crawford?’

  ‘Yes, I do, but he’s left something out.’

  ‘Sorry?’

  ‘He’s left something out. He said to me, “I think it’s a scam,” exactly those words,’ Playfoot said, a serious look on his face. It was as though he’d had a transformation while waiting outside.

  In cross-examination, Wraight asked Playfoot what he thought of Orange Lavender Bay when it was first delivered to his home.

  ‘Absolutely loved it,’ he said.

  Did he have any concerns when he first saw it?

  ‘None whatsoever.’

  Playfoot’s wife, Suzanne, however, wasn’t so sure. She wanted other people to see the painting, to give it ‘the thumbs up’. And so a procession of art experts was invited to Playfoot’s St Kilda mansion to see Orange Lavender Bay. Playfoot recited the people who visited: Chris Deutscher, Damian Hackett and Geoffrey Smith, who he now described as ‘the doyen’.

  ‘Either Chris or Damian, one of them called me “a lucky bastard” for getting the rights to sell the painting,’ Playfoot said, turning on the rakish charm.

  ‘Geoffrey looked at the orange painting for a minute or so, and he said, “John”, he says, “a fantastic picture, that’s great.” He said, “But let me show you something.”’

  ‘Yes, what did he say?’ Wraight said, encouraging Playfoot’s routine. The dealer was on a roll, enjoying the limelight.

  ‘“Maybe you didn’t know: this is how you tell a painting is not a fake”, and that’s word-for-word, and he pointed to three parts and told me about the word, the Italian word …’

  ‘Pentimento?’ Wraight prompted, knowing that at the Basha Inquiry, Playfoot had stumbled over the word.

  ‘Pentimento, that’s right, exactly.’

  ‘And pentimento, of course, Mr Playfoot, is where an alteration is made on a painting?’

  ‘Exactly.’

  ‘Demonstrating that the artist has changed something?’

  ‘Yeah, changed his mind about something, wasn’t happy with something and he made a slight alteration.’

  At which point Playfoot was given leave to walk up to the orange painting and point out the three pentimenti that Smith had told him about. It was quite the performance.

  Pentimento is an Itali
an word that means ‘regret’. I wondered whether those at the centre of the trial would have liked to have gone back and changed a few things themselves.

  With Playfoot’s show-and-tell finished, Wraight began to create an image of the art world as a secretive web of agents and subagents, greedy for their slice of the action, in the form of commissions. Playfoot merrily helped the barrister along. Not only had Deutscher, Hackett and Smith seen Orange Lavender Bay, but two of Sotheby’s employees, Georgina Pemberton and David Cook, had also seen the painting before it was sold to Nasteski. Pemberton had tried to offer the painting to John Symond—‘Aussie John’.

  ‘Did Georgina Pemberton become in effect another subagent?’ Wraight asked.

  ‘Another subagent,’ Playfoot confirmed.

  She was the ‘subagent’ of auctioneer Tim Goodman, so too was David Cook.

  Wraight and Playfoot were riffing off each other like a well-rehearsed double-act. Subagents? Any moment now I expected Wraight to start asking about shoe phones and invisible walls. Pemberton and Cook worked for Sotheby’s, they were hardly subagents, they were employees. But Wraight was trying to show that the secrecy surrounding the sale of artworks was perfectly normal. And that’s why Playfoot had never told anyone that Gant was at the end of the chain—because one never disclosed a painting’s vendor.

  ‘Never ever,’ Playfoot stressed, ‘because there’s so many white ants in this business, you know, and they’d be at one’s doorstep trying to white ant you.’

  ‘So if you said, “Look, this has come from Peter Gant,” you might get ten phone calls saying, “Where did you get it from? I want a piece of the action”?’

  ‘That’s right, exactly.’