Whiteley on Trial

by Gabriella Coslovich

  ‘Do you recognise your signature there?’

  ‘I do.’

  ‘Now, without looking at that page are you able to—just look at me—are you able to describe, other than colours, are you able to describe those paintings at all?’ Borg asked.

  ‘All I can really say is that they were quite large works, um, and I do remember, even though it’s here,’ Milburn said, indicating the consignment note, ‘that they were three works of the bay of Sydney Harbour and that they were lavender, blue and orange, yeah.’

  ‘Lavender, blue and orange?’

  ‘Yeah.’

  ‘Are you able to say how they came packaged?’

  ‘Yeah, yeah. They came packaged in bubble wrap, from memory, and in big wooden crates, okay. They came via Grace Fine Art which at that time was a premier art moving company in the country. They were big works.’

  Another twenty-one paintings came in on 28 June 1988, listed on consignment note twenty-one, which Milburn had also signed. This was the consignment note that during the committal Milburn had vacillated over—changing her mind about whether it recorded paintings coming in or going out, before finally telling the magistrate that the entire invoice book was an ‘in book’. Borg asked Milburn if she could remember anything about that consignment. I noticed the judge closely observing Milburn as she gave evidence.

  ‘Look, I could probably give, you know, a reasonable description on the Fairweather, possibly even the Whiteley, you know,’ Milburn said.

  ‘What size do you say that Whiteley was?’

  ‘I would say that Whiteley’s substantially smaller and probably black and white.’

  ‘Are you able to say anything about the other nineteen paintings?’

  ‘I could say that I’d have a … I couldn’t tell you exactly what they were, of course not, but I, you know …’

  ‘I’m asking for your actual recollection?’

  ‘Yeah.’

  ‘Of what came in that day, not for what you believe?’

  ‘Yeah, okay.’

  ‘But your actual recollection?’

  ‘Yeah. No more than what I’m saying, no.’

  ‘Okay. So you can’t describe them at all other than what you’ve just said, is that right?’

  ‘Yeah, pretty much, yeah. We handled a lot of work, so.’

  On 28 June 1988, the gallery seemed to have handled a lot of work indeed—twenty-five paintings had supposedly come in that day, and the stockroom, as the court had heard, measured roughly 4 by 4 metres.

  ‘So what happens when you get a day where you’ve got over twenty paintings come in? Where would they all be placed?’ Borg asked.

  ‘They would be being stacked up all around the place,’ Milburn said.

  The next time Milburn was shown consignment note number twenty-three—the note listing the three suspect Whiteleys—was by Stefanec.

  ‘And it was on 24 September 2014, is that correct?’ Borg asked.

  ‘If you say so.’

  ‘All right. There seems to be no contest about that, Your Honour. If I can show the witness this document? I will give a copy for His Honour. When you spoke to Justin Stefanec were you shown three images of—the three images before you?’

  ‘Yes.’

  ‘Were you able to say one way or another whether they were part of consignment note twenty-three?’

  ‘No.’

  In cross-examination, Wraight laboriously took Milburn through the consignment book—she identified her handwriting and signature on page after page. Crucially, she confirmed her signature on each of the consignment notes of 28 June 1988. Wraight asked if she could remember whether there was more than one person in the truck delivering that day’s big cache of paintings.

  ‘There would have had to have been,’ she said.

  ‘Did you yourself help carry some of these paintings to the gallery?’

  ‘I would doubt it.’

  I had seen how difficult it was for two men to lift the paintings into court—add the weight of a big wooden box and even two men would have struggled to lift them.

  ‘In any event, you have given evidence about the three large Brett Whiteley paintings—they came in both wrapping and I think you said there was a timber frame around them?’ Wraight went on.

  ‘Yeah, they were crated.’

  ‘So when you say “crated”, what do you mean?’

  ‘I mean that it’s a bit like a pallet, a pine pallet.’

  ‘And it’s shaped around the painting? Like in a box formation?’ Wraight asked.

  ‘Yes.’

  ‘And you can still see through gaps of that timber, though, can you, or not?’

  ‘They were bubble wrapped, no.’

  So how could Milburn have been sure about the three Whiteley paintings she swore she’d seen come in? Wraight worked fast. ‘You can’t see the painting, but there is timber that has spaces and you can see behind that the painting that’s been wrapped, is that right?’

  ‘Yes, from my recollection, yes.’

  I couldn’t see how this was helping the defence. How much had Milburn actually seen?

  Wraight asked if she remembered where she got the names of the paintings—Big Blue Lavender Bay, Orange Lavender Bay and Lavender Bay through the Window.

  She couldn’t recall: ‘It would probably be likely that either they were read out to me or they were on the paintings themselves.’

  Borg felt no need to re-examine the witness. But it struck me as strange that she had not directly asked Milburn whether the paintings in court, propped up just metres from the witness box like two piercingly mute bodies, were those she supposedly saw come into Peter Gant’s gallery in 1988. Wraight hadn’t asked either. The barristers must have had a reason to play it this way, but I couldn’t see why.

  That day, the jurors were released from duty at 3 p.m. After their departure, Justice Croucher wanted to know about the line-up of witnesses for the rest of the week. Borg ran through the list. Wendy Whiteley was set for Thursday.

  ‘How long do you think Ms Whiteley will be on Thursday?’ the judge asked.

  ‘She will at least take the morning,’ Borg answered.

  ‘Really? Would she?’ the judge replied, a mixture of scepticism and surprise in his voice. ‘What’s she going to say, “I looked at these paintings, I lived with the bloke for …”’

  Lived with the bloke?

  Borg kept her cool. I marvelled at her restraint.

  ‘Well, no, her statements go much further than that,’ she replied. ‘I mean your Honour must be aware from the statements about her history with Mr Whiteley and the Lavender Bay collection and her statement’s much broader than just, “I saw three paintings, I didn’t like them”.’

  ‘That’s what matters, though, isn’t it?’

  ‘Sorry, Your Honour?’

  ‘That’s the part that matters, isn’t it?’

  ‘Well, there’s been a lot of evidence by people who say that these are fantastic paintings and they seem to know everything about Mr Whiteley. She was his muse, she was married to him for a very long time, she’s the executor of his estate, she’s had a lot to do with these paintings,’ Borg patiently explained.

  ‘But she wasn’t with him during this period, was she?’ the judge replied, echoing one of the defence’s key lines.

  Andrew Pridham stood rod straight in the witness box and looked sharp in his navy blue suit. I had always imagined a tall, solid man. In photos his face looked round, his cheeks fleshy. I was surprised to see a slender man of average height walk into the court. Here was the main victim of the alleged scam—the man who supposedly had been conned out of $2.5 million and, as I understood, had never seen the bulk of that money again. I was keen to hear him speak—he had never returned my calls. At first he struggled with the infamously bad acoustics of courtroom three, but after Borg asked him to speak up, his voice stayed strong and clear. One could sense his seething anger, but he chose his words carefully.

  Pridham ha
d met Anita Archer in 2005—he had been looking for an art advisor and a mutual friend had recommended her. He wanted to build a collection of colonial Australian art and other items with ‘good investment potential’. Archer, as art advisor, would be responsible for checking the provenance of artworks—‘that’s what I was relying on her for’, he said.

  On 27 November 2007, Pridham received Archer’s email regarding Big Blue Lavender Bay, in which the consultant told him she had been pursuing the painting ‘for over a year’. When Pridham phoned her the next day she told him that the painting was being sold by Robert Le Tet, a well-known art collector and a director of Village Roadshow and ‘therefore highly reputable’.

  ‘She talked me through how he acquired the painting from Brett Whiteley Studio and it had been hanging in his office in North Sydney since 1988, I believe it was,’ Pridham said.

  By July 2010, Pridham had concerns about the painting’s provenance and raised this with Archer.

  ‘She indicated, firstly, that there was absolutely no question over the provenance and therefore there was no need for concern,’ Pridham said.

  Absolutely no question over the provenance? Archer would have been going into damage control at this point, stalling while trying to keep the grim reality from him. By 9 August, she emailed him saying that she had met with Le Tet’s ‘agent’ and Pridham’s money would be refunded in full. Arrangements were also being made to have Big Blue Lavender Bay inspected by Robyn Sloggett.

  ‘I had insisted on that,’ Pridham stressed, making it clear that he was driving the investigation into the painting. He had only become aware that there was a provenance document allegedly signed by Le Tet ‘quite some time’ into the discussions about a refund. Archer, he said, had always made it sound as though she were dealing directly with Le Tet.

  ‘And then she introduced the concept of an agent and at one point I remember, because I was becoming very suspicious, asking if that agent was Peter Gant which she confirmed it was.’

  Borg moved on. ‘Now, in December of 2010 were you made aware that someone else was looking at purchasing that painting?’

  ‘There were all sorts of comings and goings as to how they were going to deal with the refund and they were talking about, I think it was a Steven Drake, from memory, was interested in acquiring the painting and I’d made it very clear I had no interest in it being sold to somebody else.’

  No interest in it being sold to somebody else. Pridham did not want the questionable work to be offloaded onto another unwary buyer, to be placed back on the market.

  Wraight sought to distance Gant from the marketing of Big Blue Lavender Bay. It was Archer who told Pridham that it was a ‘stunning painting’; Archer who called it a ‘trophy’ painting; Archer who described it as ‘one of the classic Whiteley Lavender Bays’; Archer who said ‘it’s a very good investment’.

  ‘These are all her opinions that she gave you and the things you wanted to hear because you were interested in the appreciation of it and you’re interested in the investment value of it, yes?’ Wraight asked.

  ‘Correct,’ Pridham said.

  So how was Gant involved in any of this deception? Gant had made no representations to Pridham whatsoever.

  Another slender man in a navy suit entered the witness box: Guy Angwin.

  He had met Gant twenty years ago and he too had a ‘business’ relationship with him. Gant was helping him ‘get an art collection together’. In 2009, Gant approached him with an investment opportunity: Angwin would lend him $950 000 for an ‘art deal’ and Gant would refund his money. Angwin would receive interest and a deposit of $200 000 off the loan amount. As we know, Gant defaulted on the loan—not a single repayment was made. Worried about Gant’s failure to pay, Angwin contacted the dealer ‘several times’. Gant told him not to worry and offered him a Brett Whiteley painting in lieu of the debt.

  ‘He said, “It’s well worth more than the debt that I owe you and that should give you some comfort that the money will come,”’ Angwin told the court in his high boyish voice.

  ‘And did you agree to hold that painting?’ Borg asked.

  ‘Well, I didn’t have any choice.’

  ‘When would you have been prepared to release that painting back to him?’

  ‘Only on the full payment of the debt.’

  Angwin had the painting for about a month, keeping it in the study at the front of his house. Around this time, one of his regular customers, Brett Lichtenstein, dropped into his restaurant, Café Sweethearts, on one of his visits to Melbourne. Angwin thought it a good opportunity to ‘introduce’ Lichtenstein to the Whiteley painting as nothing seemed to be happening with Gant.

  ‘So he came round and had a look,’ Angwin said.

  ‘What was he able to say, if anything, about the frame?’

  ‘He was fifty-fifty as to whether that frame was his or not.’

  When stories began to emerge in the media about the authenticity of three big Whiteley paintings, Angwin called Gant, and told him he didn’t want it in his house.

  ‘So who then took possession of that painting?’

  ‘I’m not sure who picked it up, whether it was a courier or Peter, but I was clearly told that that painting would go to John Ribbands …’

  The barristers stiffened. Angwin had unwittingly dropped a bombshell—the jury had just learnt that Ribbands, who was now acting for Siddique, had once acted for Gant. This had the potential to prejudice the jury’s opinion about the relationship between the two accused. It also suggested that Gant had been involved in prior court cases. Borg scrambled to undo that last response and had Angwin explain that the painting was in fact returned to Gant.

  She quickly moved on and showed Angwin a police image of the painting that had been stored in his study for a month. Angwin said: ‘Well, it looks like it but I couldn’t definitively say whether it was or wasn’t.’

  I remembered his strange comment to me about the painting: ‘If you put it in front of me with a whole lot of other Whiteleys I wouldn’t recognise it … I’m not an expert, I couldn’t pick it out from another Lavender Bay Whiteley.’

  In cross-examination, Fiona Todd put it to Angwin that Gant had ‘parked’ the Whiteley painting at his house as a ‘gesture of good will’. Angwin agreed. And when Angwin finally had the verbal loan agreement drawn up, there was no mention of the painting Gant had given him as security. Again, Angwin agreed. The real collateral and security for the $950 000 loan was Gant’s Anglesea property over which Angwin had placed a caveat, Todd suggested. Yes, he replied.

  ‘Do you agree that this loan would have continued with or without the presence of the painting in your home?’ Todd asked.

  ‘Yes.’

  The defence was angling to have another of Gant’s five charges struck from the list. Gant had not dishonestly obtained a financial deception of $950 000 by giving Angwin Lavender Bay Through the Window. The painting was merely a sweetener—the true collateral for the debt was the Anglesea property.

  The jury was dismissed at midday and in its absence, the talk turned immediately to Angwin’s unfortunate slip about Ribbands. Justice Croucher, in a rare show of sympathy for Borg, said that she obviously hadn’t meant it to occur.

  ‘I’ve been cutting people off left, right and centre so they don’t mention anybody,’ Borg confirmed.

  With so many past court cases to keep witnesses from mentioning, Borg was walking a tightrope.

  ‘What, if anything, do you say I need to do about it? It might be nothing,’ the judge asked.

  But the ever-worrisome Wraight had ‘grave concerns’—it was a ‘serious problem’ and he was reserving his right to apply for the jury to be discharged. What? The jury he told me he didn’t want to lose? Had the jury fallen out of favour with his client? I was ignorant in matters of law, but this seemed an overreaction. The judge made it clear that if there was an application to discharge the jury, he wanted counsel back in court at 10 a.m. tomorrow. Otherwise, the norm
al starting time of 10.30 a.m. would apply.

  ‘We’ll have a think about it today and let your associate know this afternoon,’ Wraight said, clenching his jaw.

  Later that afternoon, I checked the next day’s court listings. We were back at 10.30 a.m. Wraight had not followed through with his threat to have the jury discharged.

  On the thirteenth day of the trial, Brett Lichtenstein, smart in a plaid olive jacket and olive pants, took to the witness box and calmly stood by his story. He denied telling Archer that it was his frame on Big Blue Lavender Bay after viewing an emailed image of the work. He had told her that he would need to ‘physically see’ the painting to be sure. She never took up that offer—she told him that Wendy Whiteley had seen the painting and that she no longer needed him to.

  He had also ‘ruled out’ that the frame on the orange painting was his when he saw it at Nasteski’s house. The picture wasn’t familiar, he said. There was no perspex covering the work, and usually paintings of that size would have perspex on them. Nor had he recognised Angwin’s painting and its frame.

  When he was asked to view Big Blue Lavender Bay on 30 November 2011 at the Centre for Cultural Materials Conservation where it was being examined by Sloggett’s team, again he said it was not his frame. That day he noticed some blue paint on the work’s inner black frame indicating that the painting had been framed before the paint had finished drying. The frame, he said, looked recent; the wood had not aged, it looked too fresh, as though it had recently been milled or machined. He estimated the wood was five years old or less.

  In his cross-examination, van de Wiel tried to pin Lichtenstein on the question of the blue paint smeared on the frame. The barrister offered another hypothesis: you frame a painting that you’ve either retouched or varnished, and the varnish softens the paint.