Whiteley on Trial

by Gabriella Coslovich

  ‘Possibly,’ Lichtenstein said. ‘But there would be a layer in between the paint, the varnish would be the layer between and that picture doesn’t look like it’s been varnished.’

  ‘But the xylene that you have to mix to create the varnish does have the effect of softening the paint?’

  ‘Yeah, but not generally to the point of it removing the surface, not in my experience.’

  ‘Well, depends on how careful you are and depends how much time you’ve got?’

  ‘Possibly but I mean …’

  ‘Yes?’

  ‘Pretty unlikely once the paint’s cured all that time; if it’s an old painting, it wouldn’t react like that.’

  ‘Well, you weren’t there, you didn’t do it,’ van de Wiel snapped, like someone losing an argument.

  ‘No, no,’ the good-natured Lichtenstein agreed.

  Lichtenstein described the 700-year-old craft of making water-gilded frames as a ‘pedantic’ and ‘ridiculous’ skill, performed by only five or so businesses in Australia. Perhaps it was this pedantry that gave him patience in the witness box that day. As the closest living link to Brett Whiteley other than Wendy, he was a prime target for the defence—they picked away at him for almost the entire day. He was the defence’s conduit to scandal.

  Without delicacy, van de Wiel launched into the sordid elements of Whiteley’s life. He wanted to know the extent of Whiteley’s heroin addiction.

  ‘I mean, was he a daily user, was he a multiple daily user, was there a quantity of heroin that you knew that he used?’ he asked in his imperious voice.

  ‘Those details I didn’t know,’ Lichtenstein answered. If the question shocked him, he did not show it.

  ‘Okay. And did you notice, if you did, was he affected by the variation in the quality of the heroin that he was getting?’

  ‘I wouldn’t know, no.’

  ‘You wouldn’t know? Not your area?’

  ‘No.’

  ‘You didn’t partake?’

  ‘No.’

  Who was on trial here? What relevance did van de Wiel’s inquisition have other than to discredit a dead artist? It seemed a dangerous tactic—Whiteley wasn’t here to defend himself. The stony looks on some of the jurors’ faces suggested disapproval, but van de Wiel went on, unperturbed.

  ‘If you’re doing this,’ he said, even more bluntly, miming a needle being injected into his arm, ‘it’s a pretty expensive habit and you need money flowing in.’

  ‘He made plenty of money so, yeah,’ Lichtenstein said.

  ‘May well he?’

  ‘In the eighties he did, yeah.’

  Van de Wiel let the comment go for now. He would return to it with a sting, reminding Lichtenstein that he and the artist had had a falling out over money Whiteley owed him.

  ‘This man who you told us earlier had so much money he didn’t have to worry about it, he owed you money?’

  The framer defended Whiteley, saying it was a matter of ‘principle’, a ‘difference of opinion’.

  When Lichtenstein suggested that Wendy Whiteley was the ‘most accurate source of information’ on the artist’s work, van de Wiel again turned the tables on him.

  ‘But in terms of Wendy Whiteley, we know two things—one, there was a period when she wasn’t living with him?’

  ‘Yes.’

  ‘Two, she was on drugs as well?’ Lichtenstein nodded.

  On drugs.

  ‘And, three, when they did have arguments about the dissolution of the marriage, there was considerable argument about how much black money Mr Whiteley had made because he had sold paintings through the back door, if I can use that expression?’

  Another nod. It was as if Lichtenstein could not bear to mouth the word ‘yes’.

  Wraight also steered the conversation to drugs. Hadn’t Lichtenstein initially thought the ‘tight’ orange painting might be from Whiteley’s ‘drug free’ period? And wasn’t Wendy Whiteley on the record saying that when the artist was on drugs his work went downhill? Hang on, I thought, you can’t have it both ways!

  But Lichtenstein could look after himself.

  ‘The conversations I’ve had with him, he told me he could paint in either state, it just didn’t feel the same, and I’ve been quoted as saying that too.’

  Wraight would not let it be.

  ‘Let’s not beat around the bush,’ he said ominously. ‘You know when someone’s under the influence of heroin and you saw Mr Whiteley in that state, didn’t you?’

  ‘Yes.’

  ‘It changes the way a person is?’

  If Whiteley was in a ‘very happy, relaxed state’ under the influence of heroin, he might paint in a beautifully free-flowing way, but if he was craving for drugs, the lines might not flow so freely, Wraight suggested.

  ‘Talking to other artists that I work for, it’s a struggle, painting, just like it is for a writer. Some days are easier,’ Lichtenstein said.

  ‘Of course?’

  ‘Than others and it’s got nothing to do with taking drugs or anything.’

  It was just the ups and downs of ‘biorhythms’, Lichtenstein suggested.

  Biorhythms? I hadn’t heard that word since the height of New Age–ism in the 1980s. But it was the only comical note in an otherwise solid performance.

  He was in the stand until 3 p.m. The Crown’s expert witness was next. Much was riding on her testimony.

  In place of a scalpel, Sloggett had an electronic pointer, conveniently provided by Borg. With the judge’s permission the professor left the witness box, stood in front of the orange painting and began her dissection. She directed the red laser beam at the big orange corpse; a bright red dot circled the telltale signs that this work was not by Brett Whiteley. ‘Points of identification’, she called them.

  ‘There’s a reason why an artist is proclaimed a great artist. Brett Whiteley’s proclaimed a great artist. That’s why his works receive so much money,’ Sloggett said. Metres away sat the two men who had long loathed her; Gant stared at her, Siddique looked seethingly to the floor. She carried on undaunted, sturdy in her red suede ankle boots.

  Whiteley was a ‘risk-taker’, he was not a ‘fiddly artist’, he applied paint in a ‘very direct manner’, he could ‘manipulate paint’, and he referenced art history, she explained in her assured, professorial way. When he attached paper fragments to the surface of a painting, for instance, he was referencing the history of collage.

  ‘You know, he’s saying, “I’m an artist who knows what I’m doing”’.

  The author of the orange painting thought he knew what he was doing, but he could not, in the end, mimic Whiteley’s hand. The fundamental characteristics of Whiteley’s style were missing. The orange semicircular sweep of bay on the bottom right quadrant of the painting was flat and still; it had none of Whiteley’s sense of moving currents and swirling water. There was no build-up of varying colour or texture to catch the light in different ways.

  ‘It’s simply an orange background on which these images have been put,’ Sloggett said, circling the offending area with her dazzling red spot.

  She moved to the boats floating on the still, orange expanse; they were ‘almost paint by numbers’; outlined and painted in. That’s not how Whiteley worked. ‘He didn’t use a material to draw an outline and then fill it in.’

  His paintings had a sense of space and perspective—it was always clear where you were standing as the viewer, at a window, perhaps, looking at something, or down or across. In the orange painting, the viewer’s position was unclear. Where was the viewer standing? In a Whiteley painting, the trees seemed to move in the wind; here the trees were flat and decorative, so flat you could use them as a fabric print. Whiteley used decoration, but not like this. You could never print fabric with the trees in Whiteley’s Big Orange (Sunset), Sloggett said.

  The insults kept coming. The pier was ‘too literal’, the birds looked as though they were drawn by a child. The palette was limited. Whiteley used varnishe
s, layers of paint and drip lines to make a painting’s surface shimmer like water. There was no evidence of any such devices in this painting. Throughout the autopsy, Siddique’s face was downturned. Gant alternated between taking notes and sizing up the enemy. Gant’s wife and one of his daughters were in court. Siddique’s ever-faithful son, who did not miss a day of the trial, was here too, and a dark-haired, high-cheeked, striking woman I assumed was his mother. The son was the image of her. Their faces betrayed no emotion.

  At 4.20 p.m., Sloggett turned her attention briefly to the blue painting. She had examined the painting with the frame removed and found no nail holes or evidence of any other forms of attachment in the painting’s support. Lichtenstein would attach his frames by nails directly into the side of Whiteley’s paintings, she told the court. Some ‘pin holes’ were seen on the sides of the blue painting that suggested something had been attached to the outside, but not that it had been in another frame. The frame was in good condition and some blue paint from the artwork had stuck to its inside edge.

  The solvency tests that had been such a controversial element of the committal hearing were abandoned. They were referred to in passing, Borg stating that scientific tests had been ‘unable to assist in dating the paintings’. Connoisseurship rather than science became the cornerstone of Sloggett’s evidence. Her lecture seemed a turning point, the moment the jury had been waiting for. Finally, someone comprehensively addressed the bodies in court—pointing out their sores, wounds and injuries. This was the television moment. Perhaps some of the jurors had watched Fake or Fortune? Now they were getting a homegrown episode all of their own.

  At 5 p.m., the court rose. An aura of gloom surrounded the defence barristers and their clients as they ambled out of court at the end of that long day. The two accused and their families crowded together in the foyer outside courtroom three, the black towering figures of Wraight and Ribbands forming a protective cordon around them, their faces grim. Gant’s wife, Deborah, a stern-looking, dark-haired woman, shook her head in dismay at Siddique as if to say, ‘Could you believe that?’

  I avoided the group and escaped to the courtyard.

  The next morning, Sloggett continued her critique of the blue painting. Whiteley was known for his ‘extraordinary ability to paint birds’, but the bird in Big Blue Lavender Bay looked like ‘a wet rag being thrown out of a window’. Just like its orange companion, the blue painting had no sense of perspective—the viewer ‘could be anywhere’. The painting had the hallmarks of Whiteley—motifs such as jetties, piers, warehouses and birds—but they were not applied in the artist’s characteristic style.

  ‘It’s dead, it’s a dead hand,’ Sloggett said. ‘It’s a bright, highly coloured decorative painting, works well on that level, but it’s just not bringing all of those individual components together in a way that they would have been brought together to do what they would do in a Whiteley painting.’

  In the dock Gant glared, arms crossed; Siddique angrily shook his head. On the back bar table, Ribbands and van de Wiel whispered and sniggered like naughty schoolboys. Sloggett continued to compare Big Blue Lavender Bay to Whiteley’s masterpiece The Balcony 2, talking about why Whiteley painted and constructed things ‘in a particular way’. Van de Wiel could contain himself no longer. He sprung up and protested, ‘We constantly get from this witness why Whiteley does things. Now, I don’t understand how that’s admissible. If she says we can see a certain pattern in terms of pictures that he’s done, that’s fair enough, but why he does—it’s hypothetical nonsense with respect, and I object to it.’

  In the field of art, it was natural to talk about an ‘artist’s intention’. Such a comment didn’t mean an art historian or curator believed themselves capable of reading an artist’s mind. It indicated an understanding of technique, informed by a deep familiarity with an artist’s work. But there was to be no suggestion of mind-reading in the criminal court. The law’s impatience with the language and concepts of art became increasingly evident as the day wore on. The law and the arts seemed irreconcilable: one beholden to objectivity, logic and absolutes, the other delving into the expansive, indefinite world of human creativity. Magistrate Suzanne Cameron had warned of the divide and now her predictions were being realised. Sloggett’s evidence was testing the patience of the defence barristers and, more significantly, the judge.

  When she began to discuss the flight path of birds, the judge’s tolerance stretched to its limits. Sloggett asserted that the flight path of the bird in Big Blue Lavender Bay, signified by a trailing white arc, did not make sense. Whiteley’s birds had flight paths that related to where they were in space, she said, referring to the straight line trailing behind the bird in The Balcony 2.

  ‘Birds can fly on arcs,’ the judge interjected.

  ‘They can fly on arcs,’ Sloggett agreed, ‘but this, there’s not a sense of direction here,’ she said, referring to the ‘wet rag’ bird in the big blue painting.

  Gant looked to the ceiling, his jaw set in a hard stubborn line. Siddique fumed. As Sloggett continued her analysis, he became increasingly agitated. He flipped through a Whiteley art book, shuffled through a large fuschia-coloured folder, reached suddenly for a glass of water. He looked ready to explode. Just as she had with the orange painting, Sloggett concluded that Big Blue Lavender Bay could not be ascribed to Brett Whiteley. The court rose to break for lunch. I kept my eyes on Siddique as Sloggett stepped out of the witness box and walked towards the exit doors. As she passed the dock I saw him mouth the words ‘You fucking bitch’, an audible whisper spat in her direction. My mouth dropped open. Did anyone else see? Surely the guard sitting next to him heard? But no-one said or did a thing.

  After lunch, Siddique must have felt vindicated. The judge asked Sloggett an impossible question.

  ‘If Brett Whiteley were alive, if he walked in here now and said, “Look, I painted those two paintings”, what would that say about your evidence that you’ve given so far about these paintings?’

  Sloggett was forbidden to talk about an artist’s intention but the judge could ask hypotheticals? She struggled to answer.

  ‘Artists have said that about works they haven’t painted. Artists have said they haven’t painted works they had painted, I mean …’

  ‘So you doubt the artist, would you?’ the judge prodded.

  ‘No, it’s a hypothetical, it would depend on a few things.’

  ‘I’m asking you to answer,’ the judge insisted.

  Sloggett was floundering. There was no winning on this one, no point in arguing with a judge. That afternoon, she found herself fielding questions from all angles—from the bench and the bar table. Wraight had reserved his combative streak for this witness. Two days before, in the absence of the jury, he had described Sloggett as ‘rather argumentative’—‘she sticks to her guns no matter what’s put to her’. Here was another witness who needed to be ‘controlled’. He launched into an attack on Sloggett’s methodology.

  Had she heard of ‘masterpiece syndrome’? It was a term coined by a New York organisation called Art Experts, and it described a ‘knee-jerk reaction’ where unless an artist’s work was considered a ‘masterpiece’ many experts would reject it immediately.

  ‘Do you agree with that?’ Wraight asked.

  ‘Um, there’s a number of assumptions in that that you need to unpick …’ Sloggett replied.

  ‘Do you agree with that or do you not agree with it?’ he repeated impatiently.

  ‘No, I don’t agree with it.’

  In comparing the two mediocre paintings in court, from 1988, to two of Whiteley’s masterpieces from the mid-1970s, Sloggett was not comparing like and like, Wraight suggested.

  He also criticised the limited scope of her comparisons. Sloggett protested: ‘We looked at a range of works.’ But the only other painting Wraight could find in her report of the same subject matter and from around the same time was Whiteley’s vast 1987 work Sydney Harbour to the Spirit of Bill W, com
missioned by the former Darling Harbour Authority for the 1988 Australian Bicentenary.

  ‘If we had Lavender Bay works from 1988 securely provenanced that we could compare with, that would be wonderful,’ Sloggett said. ‘We don’t.’

  Justice Croucher was taking a keen interest in this witness, cutting in several times with questions of his own during Wraight’s cross-examination.

  ‘Could I just ask—this is not meant to be a humorous question, but can you just inform me in The Balcony 2, in the bottom left-hand corner is that meant to be a palm tree or a bum, or something else?’ the judge asked.

  ‘I don’t think it’s a palm tree. I’m not sure what it is.’

  ‘You don’t know what it is?’

  ‘I am not sure what it is.’

  ‘Really? No, seriously, doesn’t someone in your position know what all of these things are meant to mean or not?’

  What all of these things are meant to mean. Here again an example of the divide—as if art needed to be deciphered and defined. Some art didn’t ‘mean’ a thing, it revelled in abstraction, deliberately avoided the literal, delighted in ambiguity—its language was visual. Sloggett attempted to explain that Whiteley played with shapes, ‘so he can have a tree which in this case looks like a bum’.

  The day seemed to be descending into farce.

  ‘Fair questions, Your Honour,’ Wraight chipped in fawningly.

  ‘Misspent childhood or something like that, I don’t know what it is,’ the judge said.

  I had read that he was a country boy, raised in Victoria’s alpine region, and had left school after year 10 to work on the family farm, growing tobacco and running cattle. He had also worked as a logger. After a knee injury at the age of twenty-five he went back to school, completed year 12 and headed straight to university to study economics and law. An impressive trajectory. When he was appointed to the Supreme Court in August 2013, Jonathan Beach, QC, noted his ‘generosity of spirit’, ‘sense of proportionality’ and ‘worldliness of perspective’, qualities born of broad life experience. Was it wrong of me to wonder whether that broad life experience extended to the arts?