Whiteley on Trial

by Gabriella Coslovich

  Or you might get ten people beating a hasty retreat.

  Borg went back for one more shot. Why had Playfoot’s wife wanted others to give the painting the ‘thumbs up’? Playfoot paused, deliberated, and finally said: ‘She didn’t trust Peter Gant.’

  I saw the jury’s eyes light up. Some of the jurors were writing furiously in their notebooks.

  ‘To be honest, that day I went on gut instinct.’

  There it was again. The human reliance on that strange faculty known as ‘instinct’. This time it was Andrew Crawford in the witness box, dapper in a soft linen suit of light beige, which so ‘entranced’ van de Wiel that he would later refer to Crawford as ‘that man from Sydney in the white suit’. The police had contacted him after all—the day before he took the stand, he later told me. Crawford had seen ‘hundreds, if not thousands’ of Whiteleys in the flesh, and when Orange Lavender Bay arrived at his Sydney gallery, it just didn’t ring true.

  ‘I had it sitting on the floor in the gallery and then put it on the wall and was looking at it for a while, and I got very—shall we say, I got very scared. It just didn’t feel right, just didn’t look right.’

  When Crawford asked Playfoot about the painting’s provenance, the dealer told him that the picture was illustrated in an exhibition catalogue called A Private Affair.

  ‘He had said to me that it had come from a very wealthy private collector in Melbourne and he inferred in one phone call that that person was Robert Le Tet.’

  Playfoot sent him the catalogue, and a consignment note from 1988 listing three paintings including Orange Lavender Bay. Crawford conducted his own research, checking library records for A Private Affair—he did not find a single copy. Concerned about the painting’s authenticity, he contacted Wendy Whiteley and brought the painting to her. She was not convinced.

  ‘Wendy wanted to see more documentation on the provenance of the work,’ Crawford told the court. ‘She told me that she had not been with Brett Whiteley when the picture would have been painted, as she’d already separated with him by that stage, and she said that, “If the picture was okay, it was an extremely bad hair day.”’

  Soon after that meeting, Crawford drew up a letter and went to Nasteski’s house at 7.30 a.m. asking him to sign it. The letter advised Nasteski not to proceed with the purchase of Orange Lavender Bay.

  ‘The picture was worrying me and the whole situation was worrying me,’ Crawford said.

  As we know, Nasteski bought the painting despite Crawford’s advice.

  Nasteski was up next, a tall dashing figure in a buttoned-up black jacket, white shirt, distressed designer denims and a leather satchel slung across his torso. He took his position in the witness stand and looked raring to go. Borg suggested that he might want to put his bag down. Here was another character prone to a colourful turn of phrase, but Borg kept him on a tight lead, eliciting the basics from him.

  On 5 December 2009, Crawford ‘introduced’ him to a Brett Whiteley painting. Three days later, he offered $1.1 million for the painting to Playfoot, subject to viewing it. The offer was accepted on the same day. He made a series of payments to Playfoot totalling $900 000. On 17 December, Playfoot sent Nasteski a letter detailing the painting’s provenance. Shortly after, he sent Nasteski a catalogue titled A Private Affair.

  The next day, Nasteski invited two Sotheby’s Australia art specialists, Georgina Pemberton and David Cook, to his house to look at the painting. On 20 February 2010, Nasteski paid the remainder of the painting’s cost, transferring $170 000 to Playfoot and giving him a $30 000 cash cheque.

  By March 2010, Nasteski was seeking to sell the painting at auction. When Sydney auctioneer Damian Hackett came to collect the painting, Nasteski gave him the 1989 catalogue illustrating the artwork. The auctioneers had the catalogue of A Private Affair forensically tested. It was found to be a digital print that could not have been made in the 1980s. Nasteski called Wendy Whiteley for an opinion—she told him that she’d already spoken to Crawford. As a result Nasteski was ‘totally unhappy with the provenance’.

  In cross-examination, Wraight tried to get Nasteski to agree that he later had a conversation with Playfoot about the catalogue in which Playfoot said to him, ‘Of course it’s a copy.’

  ‘You recall that? He told you it was a copy?’

  ‘No.’

  Wraight tried again.

  ‘He said to you, “Of course it’s a copy, it’s not the original one”; you remember him saying that to you?’

  ‘I can’t remember that to the best of my recollection.’

  ‘I suggest to you, that’s exactly what he told you, but you can’t remember?’

  ‘Well, it was six years ago and to the best of my recollection I can’t remember that conversation occurring.’

  Van de Wiel had no questions for the witness.

  ‘That was quick,’ Nasteski said as he picked up his bag, slung it over his body and walked out.

  Nasteski concluded the week’s witnesses. As we gathered up our belongings that Friday afternoon, Wraight told me that he was feeling reasonably confident. Still, you never did know, he said, ‘there is still a smell about it’. He suggested that cases such as these were best dealt with in the civil courts, a comment that left me a little flummoxed. So we were to accept that art fraud had nothing to do with criminality? That the civil courts were the only option? The civil courts had handed a pyrrhic victory to Robert Dickerson and Charles Blackman. Gant had never paid costs, and never would.

  The second week of the trial was over and I was thankful for two days away from the pressure of the court. I was losing perspective, heading home most nights seething with tension. Every time the prosecution seemed to lose ground, I would be on edge. I worried that the jury couldn’t possibly be keeping up with all the information being presented to them and that Borg wasn’t emphasising the right elements. Why wasn’t Crawford allowed to fully explain, using the photographs he’d brought in to court, how Orange Lavender Bay seemed an amalgam of other authentic Whiteley works? Playfoot had been allowed to perform his ‘pentimenti’ routine. Why were only certain witnesses being kept on a short leash? But why did it all matter to me so much?

  That weekend I read an article about an art fraud case that was occurring concurrently in New York—a high-profile case involving Ann Freedman, former director of the Knoedler Gallery, who had sold US$70 million of fake abstract expressionist art—Pollocks, Rothkos, Motherwells. The gallery closed in 2011 and ten lawsuits were filed by collectors who had bought the fakes. The lawsuits alleged that Freedman knew or should have known that she was selling fakes. She had sourced them from Long Island dealer Glafira Rosales who in 2013 confessed the paintings were fake and pleaded guilty to money laundering and tax evasion. Rosales had offered Freedman many works greatly below their market value—shouldn’t Freedman have been asking why? Instead, Freedman sold them at their full market value. As The Art Newspaper reported in its April 2016 edition, a Las Vegas casino owner bought a ‘Rothko’ in 2008 for US$7.2 million—Knoedler had paid Rosales US$4.5 million for the work. In an exclusive interview with The Art Newspaper, Freedman apologised to anyone who ‘believed’ they had been hurt or damaged. ‘But let me be clear,’ she added. ‘This is [about] works of art. I didn’t slay anybody’s first-born. We have to have some perspective on suffering.’

  The jury would never know that Robert Le Tet had written to police officer Stefanec declaring that Gant’s statement of provenance about Big Blue Lavender Bay was ‘totally fabricated’. Wraight made sure of that. The words ‘totally fabricated’ were ‘emotive’, he said, and it was ‘entirely inappropriate’ to put the letter into evidence. Wraight’s objection was upheld.

  Gant’s face was downcast as Le Tet gave evidence on the eleventh day of the trial. He would not look at his long-time friend. If he had, he would have seen a stooped man of solid build, broad shouldered, with a long sweep of silver hair. From that broad body one expected a strong voice. Instead a thin, i
mpassive voice emerged. Le Tet did not smile. He did not joke. His face was inscrutable as he answered Borg’s questions.

  He told the court that he had known Gant for about thirty years. They had a mutual interest in art and Gant was also a client. Le Tet was in ‘the business of lending him money’, for real estate and art. It was a successful arrangement for many years. Gant would borrow money to buy artworks which he would onsell for a profit. Le Tet would hold on to the artworks, storing them in his offices until Gant could complete the sales. Gant would also leave other paintings with Le Tet as security for loans. When larger paintings were left with Le Tet, Gant would hang them on the office walls.

  ‘It was the best way of storing them,’ Le Tet said, ‘rather than just propping them against the wall.’

  He could not recall with any confidence whether there was any particular painting in his office in South Melbourne in November 2007. However, he was clear about several significant matters: he had never met Brett Whiteley, never met Christian Quintas and never bought any paintings directly from either of them. Le Tet’s testimony contradicted the provenance story that Gant had fed to Archer and Playfoot. I was keen to see how Wraight would clear this hurdle. His jaw tightened as he leapt in.

  ‘Can I just ask you this: if a painting of significant value that was used as security for a loan, if the loan, the arrangement, did go sour, or Mr Gant didn’t or couldn’t repay, are you in a position to take ownership of that painting to sell it and get your money back? That’s how it worked, didn’t it?’

  ‘Yes, that’s correct.’

  ‘And would you agree that in the art world to prove provenance of a painting, it certainly gives it a better status if you can link it to someone who is in a prominent position of business or finance? Do you agree with that?’

  ‘Oh, certainly,’ Le Tet said amenably.

  So that’s all that Gant was doing, he was ‘using’ Le Tet to put a bit of a ‘spin’ on the painting to better its credibility, Wraight suggested.

  ‘Yes, yes, that’s what it appears,’ Le Tet answered coolly.

  Gant wasn’t creating false provenance. It was just ‘spin’! Just Gant borrowing his mate’s name to bolster the painting’s status. Paintings were going in and out of Le Tet’s ‘offices’ all the time, and as Gant’s financial backer, Le Tet had an interest in these paintings too. So Gant wasn’t really lying, was he? He wasn’t attempting to cover up a fraud. There was no fraud. I could see why Wraight had been so intent on having Le Tet’s ‘totally fabricated’ comment struck from the record.

  During cross-examination by Ribbands, Le Tet confirmed that he had financed Gant’s purchase of a large Whiteley painting in March 2007. Ribbands asked Le Tet to look at Morel’s photo of a large brown painting sitting at Siddique’s studio.

  ‘Do you recognise that as the painting in question or not?’ Ribbands asked.

  ‘No, I’m not sure,’ Le Tet said, emotionless.

  The photo showed View from the Sitting Room Window, Lavender Bay, the ‘brown’ painting that Gant had bought for $1.65 million at auction in Sydney in March 2007 and had delivered straight to Siddique’s Collingwood workshop. The very painting that Le Tet had taken the auctioneer Rod Menzies to court over in 2010. The painting over which there was, essentially, a custody battle, with Le Tet claiming ownership of the artwork. And now he didn’t recognise it.

  Dressed in a charcoal suit and lilac shirt, his wiry grey hair slicked back, Steven Drake spoke rapidly and quietly, as if he couldn’t wait to be out of the witness box. Upstairs in the public gallery, Crawford and another dealer familiar with Gant’s methods watched as Drake explained his unusual purchase of Orange Lavender Bay after its authenticity had been questioned in the media.

  Gant had been adamant that the painting was real, Drake told the court. He had said that the provenance was ‘by a gentleman called Nasteski’.

  Drake ‘loved the painting’ and would never have bought it unless he thought it was real. The asking price had originally been $300 000, but Drake was only prepared to pay $122 000, because that’s all he had available at the time.

  On the 6 August 2013, Drake wrote a cheque for $122 000, making it out to Playfoot’s company Galerie Moderne. The painting was delivered to his Toorak home that same day and there it remained until 24 June 2014 when police arrived to claim it at 7 a.m. Drake let them in, showed them the painting hanging in his hallway, and helped them carry it out.

  Soon afterwards he called Gant to tell him the painting had been seized.

  Several days later, Gant met Drake at the MDM Copy Centre in Carlton and gave him a colour photocopy of the A Private Affair catalogue. For good measure, Gant also gave him the report Morel prepared on the catalogue that supposedly verified its authenticity. But why had Gant done this after the painting had been confiscated by police? Why hadn’t he or Playfoot given Drake the catalogue at the point of sale?

  As Borg led evidence, it emerged that not only had Drake bought Orange Lavender Bay once it had been ‘tainted’ in the media, but in October 2010, Drake signed a statutory declaration expressing his interest in buying Big Blue Lavender Bay ‘subject to looking at the painting in the flesh and obtaining an independent valuation’. Gant had given this statutory declaration to Archer. I figured it was his way of buying time. Pridham wanted his money back, and Gant had not made any of the repayments he had promised. This way Gant could show that some money would be forthcoming. But why was Drake so eager to enter into these agreements?

  Here was the defence’s chance to have at least one charge struck off Gant’s list of five—if Drake had willingly bought Orange Lavender Bay knowing that Sloggett had concluded it was problematic, how could the prosecution argue that this was a case of financial advantage by deception? Drake had been well aware of the media scrutiny of the painting, and had even discussed it with Gant.

  ‘You were following the case, you were well aware of all of the issues that were surrounding it?’ Wraight asked.

  Drake nodded.

  ‘You, of course, on the other side of the coin, thought well, if this painting is good, and you believed it was, didn’t you?’

  ‘Yes, absolutely.’

  ‘Then you’ve had a ten to one bet that once it is cleared, its value would increase, correct?’

  ‘Keeping in mind, as well, if it had been proven to be incorrect, I would sue for restitution so …’ Drake protested, attempting to regain some control.

  ‘Well, you … ?

  ‘I was told it was real, I bought it based on …’

  Wraight cut in: ‘You went in with your eyes open, though?’

  ‘Yes.’

  Luke Doyle, a National Gallery of Victoria librarian with an impressive bushranger beard and a silver sleeper pierced into the top of his ear, had conducted an extensive search of the gallery’s archives and library databases for a copy of the catalogue A Private Affair. His search was fruitless. Borg’s junior counsel, Robyn Harper, a woman of serious demeanour and crisp questioning technique, led the evidence.

  ‘What databases did you use to search for that documentation?’ Harper asked.

  ‘I looked on our library catalogue, the NGV’s library catalogue, and when I couldn’t find any results, I looked to Libraries Australia, which is a national bibliographic database,’ Doyle explained.

  Not a trace of A Private Affair was found. Doyle had no problem, however, sourcing three other Peter Gant Fine Art catalogues—two from 1988 and one from 1989. They were readily available in libraries far and wide, from Melbourne to Penrith to Ipswich to Townsville.

  Under cross-examination by Ribbands, the librarian accepted that there were gaps in the system. The National Gallery of Victoria collected art catalogues ‘passively’—the gallery’s own curators passed them on to the library after visiting exhibitions, and other galleries, art dealers and artists also sent them in.

  ‘One of the other reasons you may not get a catalogue was if an exhibition was arranged and a catalogue was p
repared but for whatever reason the exhibition didn’t go ahead, then that may be a reason why you wouldn’t be sent a catalogue, correct?’ Ribbands asked.

  ‘It could be a reason, yeah,’ Doyle replied.

  I tried to remember at what point Gant began saying that the exhibition of A Private Affair had been cancelled. When I first wrote about the suspect Orange Lavender Bay in July 2010, Nasteski had been told that the catalogue was rare and only two copies existed—one in the State Library of Victoria and the other in the National Gallery of Victoria. Nothing, from memory, had been said at that point about the exhibition not going ahead.

  Rosemary Milburn, yoga teacher, was back in the witness box. Neatly dressed in a black jacket, grey pencil skirt and black sandals, she languidly answered Borg’s questions. As Gant’s gallery assistant, she had supposedly signed in three large Whiteleys when they arrived at his Coventry Street gallery on 28 June 1988. The first time she had been asked to look at the consignment note again was some twenty-six years later at a solicitor’s office with Gant.

  ‘And what were you asked to look at in that consignment book?’ Borg asked.

  ‘I was asked to look at, I suppose the page that these Brett Whiteley paintings are on and that I signed them in,’ Milburn replied.

  ‘Okay. Now what pages in particular were you asked to look at?’

  ‘Well, I was asked to look at, um, particular—this one here, consignment note twenty-three,’ she said, pointing to the consignment book before her.

  ‘And what on that page, consignment note twenty-three, do you recognise?’

  ‘Well, I recognise pretty well everything,’ she said, sounding slightly defensive.

  ‘I’m asking you about actual recollection on the day?’

  ‘Yep. That that consignment note was written,’ she said, stating the obvious.

  ‘What can you actually recall from that day entering on to that page, not what you see there?’

  ‘Okay. Well, I can’t recall exactly what I entered into that page; however, I do recall that Chris Quintas was the person whose works they were or who had them, at least, and had sent them to us so his name and address is there. The dispatch date, the consignment note number. I remember there were three Brett Whiteley paintings and they came in and that’s exactly what’s here and that I signed them in and that I’ve made a note that I’ve also sent out the front copy to Chris Quintas,’ Milburn said, relaying no more detail than was already on the consignment note.