Whiteley on Trial

by Gabriella Coslovich

  Wraight took the reins once more. Was Sloggett familiar with the witness code of conduct? Did she understand that an expert witness was to remain impartial at all times? She had discussed ‘tactics’ with Detective Sergeant James Macdonald. She had headed an internal email about the two paintings in court with the word ‘fakes’.

  ‘You don’t think that’s extremely unprofessional?’ Wraight asked.

  The word ‘fake’, Sloggett replied, was just a descriptor, just a generic heading.

  ‘We see a lot of fakes so it’s not an unusual word for us to be using.’ She had never called the paintings ‘fake’ in public, she said.

  Wraight kept pushing the point, until Sloggett cracked.

  ‘You formed the view that these were fakes way before you wrote your report, didn’t you?’ he needled.

  ‘I formed the view that these were fakes pretty much the minute I looked at them … but what’s in my head is not relevant to a court case. What’s in the report is relevant.’

  Van de Wiel believed he had evidence that could alter Sloggett’s conclusion. Provenance did indeed exist, he reminded her, in the form of a 1989 catalogue, verified by Morel, which included an image of the orange painting in court. Hadn’t Detective Sergeant Macdonald told her that the catalogue ‘put a spanner in the works’ of her findings? Sloggett didn’t recall the discussion. Hadn’t she yesterday told the court that provenance was important in helping to establish an artwork’s authenticity?

  ‘I did explain also that provenance has to be verifiable and being handed a catalogue, a collection of images in a publication which is a one-off and which then disappears and there are no other copies, then that’s not verifiable,’ Sloggett countered. ‘And I also said … if you’re going to make a fake, you are going to fake the provenance.’

  That last line reverberated in the courtroom. In my naïveté I thought it a powerful assertion—but I would find out just how unacceptable such a statement was to the ‘way things worked’ in the criminal justice system.

  Van de Wiel told Sloggett that the defence could produce the photographer who was the son of the catalogue’s publisher—‘and he will say he took a picture of that one and that one back in 1989’, indicating the paintings in court. ‘Now does that affect your views at all?’

  ‘It’s up to the court to determine that evidence … I’m presenting the evidence based on the processes we went through,’ Sloggett replied.

  ‘It’s a bit like if Mr Whiteley walked in and said, “I did these paintings”—is that just something that may or may not be part of your view?’ van de Wiel gibed.

  ‘Well, he has not walked in,’ Sloggett said, smiling at the jury. The jurors smiled warmly back. The retired cabinet-maker nodded his head in agreement.

  Sloggett was released at 5 p.m. Her ears must have been ringing that evening. She was the subject of discussion after the jury had been dismissed. The judge was not impressed. The court would need to discuss what could and could not be used from her evidence.

  ‘I mean, what does provenance have to do with her professional opinion? Surely nothing,’ the judge said.

  Borg tried to explain that it was the defence who had begun asking her questions about provenance.

  ‘But you asked her in re-examination and she said it would change her view if she were given some information about provenance. I asked her questions about that as well. It just seems to me it’s just all over the shop,’ the judge said crossly.

  Was Sloggett’s evidence really that exasperating? Checking provenance was an important first step in determining whether an artwork was authentic. Documents such as exhibition catalogues, labels on the back of paintings, and photographs were important pieces of evidence. But provenance itself could be manufactured. So provenance itself had to be verifiable. Why had it been so outrageous for Sloggett to say so? At times I was as mystified by the law as the judge was by tree-bums in Whiteley’s landscapes.

  ‘This idea about looking into the mind of the artist and almost looking into the mind of where the birds are flying. I mean, for goodness sake, it’s just nonsense,’ the judge said, becoming more and more annoyed.

  ‘The nature of this area of discourse is that, you know, one minute you are talking about what you can see, the next minute you are talking about what the person was trying to achieve and we all get very excited about it and, you know, and feel clever that we know about these things or don’t know about these things or someone else doesn’t know and we know and so forth and so on, on it goes. But really it’s just conjecture, that sort of nonsense, really. It’s fine for people to talk about in the art world, it’s fine for people, you know, of her standing to make a career out of it—I am not criticising any of that, but it has nothing to do with a criminal trial. It just can’t, it can’t.’

  None of this augured well for the prosecution.

  Disturbed by the day’s events, that evening at home I phoned Tom Gyorffy and shared the judge’s question about Whiteley walking Christ-like into court. His response was immediate. The question was ludicrous and should have been withdrawn. He would have told the judge: ‘Brett Whiteley died in 1992 of a heroin overdose and he is not in this room and cannot verify these paintings which is why we have a witness here.’ But Gyorffy was a Queen’s Counsel—he had fought judges before. Borg may have felt less confident about picking a fight with a judge.

  Vanessa Kowalski smiled graciously and kept smiling as she took the jury through a series of grainy infra-red images of the orange and blue paintings in court. The images—fifteen from different sections of the orange painting, and seven from the blue—revealed the drawings beneath the paint layer, including images no longer visible in the finished paintings. Kowalski now stood in front of the paintings, electronic pointer in hand, circling areas on the paintings that referred to photocopies of the infra-red images that had been handed to the jury. An attractive, bright-eyed woman in her late thirties, she was dressed in Melbourne art-world black—dress, stockings, ankle boots—that accentuated her long blonde hair and red-tinged lips. Was her constant smile a sign of nerves? Unlike her intrepid boss, Kowalski had never before given evidence in a criminal trial.

  Like an eager young teacher with a new class, she pointed out on the paintings in court where there were underdrawings that coincided with the underdrawings that one could see on the paintings in progress in Morel’s photos. Infra-red image nine, for example, showed a drawing of a catamaran around the centre-left section of the orange painting. The catamaran was no longer visible in the final composition of the orange painting in court—it had been painted over, but the infra-red could still see it. That same catamaran could be seen in the same position in Morel’s photos of the orange work in progress.

  Infra-red image fourteen of the orange painting showed the underdrawings of two boats just below the central pier at the top of the painting. The two boats were no longer visible in the final work, but the same two boats could still be seen at the drawing stage in one of Morel’s photos of the orange painting in progress. Some things were visible to the naked eye—the orange painting, for example, originally had three piers, as seen in Morel’s photos. Kowalski explained that if one looked carefully at the orange painting in court, one could detect the two other piers beneath the paint layer.

  On the blue painting she pointed to the peninsula jutting out in the top right-hand corner. Infra-red image six showed that the peninsula had originally extended further out and ended above a boat to the furthest left of a cluster of boats. In its earlier stages, the blue painting in Morel’s photos also had a longer peninsula.

  This was fascinating evidence—I remembered how excited Gyorffy had been about the infra-red images. ‘Juries are not stupid … they see the photos, and they see the infra-red, it’s pretty damn clear,’ he had said to me during one of our many conversations.

  But I was worried about the piecemeal presentation of the infra-red images. Would the jury be able to make sense of all these images? Why ha
dn’t a large overall infra-red image of the paintings been taken? One that could be compared more easily to the paintings in progress in Morel’s photos? This was the sole remaining ‘scientific’ element of the prosecution’s case—it needed to be presented as clearly as possible. Was the message getting through?

  The infra-red images also showed that the underdrawings in the suspect paintings were different to the way that Whiteley worked. He didn’t underdraw to this extent—mapping out forms and then painting them in, Kowalski said.

  Siddique fidgeted in the dock, rubbing his eyes, taking notes, sitting up straight whenever the judge asked a question, flipping through his large pink folder. Gant was taking notes too, unusual for him. Were they rattled?

  Van de Wiel pulled out a camera. He pointed it theatrically at the paintings and suggested that anyone, using an infra-red lens on their camera, could replicate Kowalski’s infra-red images. There was no great complexity to her examination of the paintings.

  ‘I can’t really comment on what degree of underdrawing you could see with a camera like that because we have a different machine,’ Kowalski said politely.

  ‘Now can I ask you this,’ van de Wiel said, pointing at one of the paintings. ‘If you were to make a copy of that and you were a conservator, the first thing you’d do is to take an IR picture, wouldn’t you?’

  ‘I wouldn’t make a copy of it, as a conservator I have no—that’s not part of my job,’ she answered coolly. Her point was clear. Conservators did not go around copying other people’s work.

  Van de Wiel moved on. Had Kowalski taken infra-red images of known Brett Whiteley paintings as a comparison?

  No, none.

  ‘Why not?’ van de Wiel asked.

  ‘I haven’t been asked to do research into the underdrawings.’

  ‘Excuse me, you were asked to do research to see whether or not you could say whether these could fit within the oeuvre of Brett Whiteley?’

  ‘That’s right.’

  Van de Wiel revealed that the so-called ‘brown’ Whiteley painting had been at the Centre for Cultural Materials Conservation for some time. It was a securely provenanced work—had Kowalski taken any infra-red pictures of it?

  ‘No, I wasn’t asked to, wasn’t, no,’ Kowalski answered uneasily.

  Van de Wiel asked about the varnish layer on the blue painting that Sloggett and Kowalski had failed to detect in a preliminary report.

  ‘When is it that you discovered that it was varnished?’ van de Wiel asked.

  ‘Not till some time later,’ Kowalski said, no longer smiling. ‘Why not?’

  ‘When we did the preliminary report … we only looked at the surface to consider the existence of a varnish with ultraviolet light.’

  ‘Yes?’

  ‘Ultraviolet light can identify a varnish but if a synthetic varnish, for example, has had UV stabilisers added to it, then ultraviolet light won’t necessarily indicate whether there is a varnish present. And it’s quite clear in our report that’s the only form of analysis or examination that we used that would relate to a varnish layer,’ Kowalski said somewhat defensively.

  ‘Ms Kowalski, I am not seeking to attack you, I am asking merely when did you discover that it was varnished?’

  ‘I can’t be certain when I thought it was varnished.’

  The defence barristers were carefully constructing a picture of forensic art experts whose methods lacked rigor: a missed signature, missed varnish and a failure to follow up on their own report’s suggestion to do infra-red examinations of Whiteley’s known works—even when they had one in their midst, the so-called brown painting. The implication—how seriously, then, could one take their assessments of these two suspect paintings?

  Van de Wiel returned to the matter of the paint smeared on the frame of the blue painting. If xylene was present in varnish, couldn’t it soften paint?

  ‘Not when it’s applied as a varnish, I would think not,’ Kowalski answered.

  ‘It depends how carefully you do it?’ van de Wiel probed.

  ‘Probably does.’

  The jury looked stunned. One woman’s mouth dropped open. They had seen some interesting characters over the past fortnight, but no-one beat the visual impact of Wendy Whiteley. Aged seventy-five, she was the essence of bohemian grandeur. Head wrapped African-style in a swathe of printed black-and-white fabric, she wore a long black dress of monkish severity, black boots, black pearls around her neck, chunky black bangles on one arm, a huge buoy-like silver bangle on the other arm and a grey plaid shawl draped over her right shoulder.

  ‘Ms Whiteley, what is your occupation?’ Susan Borg asked.

  ‘Wide and varied—I call myself a gardener these days,’ Wendy answered drily, her husky voice resonating through the court.

  A gardener. Nothing highfalutin about that. Wendy looked grand and her voice had the rich timbre of the high born, with traces of a hard-lived past, but she was wry and she spoke about art in terms anyone could understand.

  She was at art school, ‘being an artist, so called’, when she met Brett Whiteley. They formed a relationship ‘more or less instantly’. It was an attraction forged on a mutual love of art. Brett won a travelling scholarship from the Italian government. He headed to Italy, Wendy joined him in Europe several months later, meeting Whiteley in Paris, and so began a life devoted to art—it was their ‘main preoccupation’.

  ‘We were just totally and absolutely absorbed in it. It was for us incredibly exciting,’ Wendy said.

  Brett worked, Wendy was his companion, muse and studio assistant. She posed for him, ‘sat in the bath’ for his bathroom series. They visited museums and art galleries together, ‘learning everything there was to know’.

  ‘We attended the Louvre for the first time together. It was a big thing,’ she said. ‘We never stopped talking about his job. It was a constant source of entertainment and thrilling conversations.’

  They lived in Europe together for ten years. In Italy and then London, their one-room apartments were both living and working space.

  ‘So in terms of your physical assistance to him in terms of the work, what sort of things would you do around the studio?’ Borg asked.

  ‘Clean up, pick up things, move things, draw a line across the floor and say, “Don’t cross it because this is my bit” which would get readily ignored, usually.’

  The jury laughed warmly. Wendy was playing to them. Borg was asking the questions, and Wendy answered them looking at the jury. She behaved differently to the Wendy who had gone to war with Robert Richter. She was more considered, almost solemn. The barristers weren’t her concern. She had a greater audience to appeal to: the ordinary men and women of the jury.

  After lunch, Borg asked about Whiteley’s ‘underdrawings’.

  ‘Oh, he didn’t underdraw,’ Wendy said. ‘He worked with the paint that he was using. So he didn’t, as some artists do, carefully scan up a drawing, you know, put a drawing on and then colour it in, basically.’

  ‘So he didn’t do any of that?’

  ‘No.’

  ‘When you say he didn’t do that, are you talking about the paintings?’

  ‘We are talking of the big paintings made in Australia, yeah.’

  The question of underdrawings would become a sticking point during the trial—one that the defence would return to with a vengeance. Wendy’s assertion that Whiteley didn’t create underdrawings wasn’t exactly correct. Whiteley did underdraw—I had made some inquiries of my own to the Art Gallery of New South Wales. The gallery had a few years ago examined Whiteley’s Big Orange (Sunset) using infra-red and found ‘a good deal of underdrawing that is not visible in the final image’. These underdrawings ranged in character from ‘loose, gestural, confident, expressive, and spontaneous to more tightly organised, defined and precise’. But I also understood what Wendy was getting at—Whiteley didn’t block out shapes and systematically colour them in. His method was more fluid than that.

  Borg asked Wendy ab
out the first time she saw Big Blue Lavender Bay, in April 2008, when she was invited to the Mosman home of Andrew Pridham for morning tea.

  ‘Do you have a picture in your mind as to what you saw?’

  ‘Yes, it was a very large kind of gentleman’s residence in Mosman and clipped lawns; it looked all very glamorous and I walked in the house and it was the first thing you saw as you went in the entrance lobby. Well, it was at the end of the entrance lobby—well lit. You know, first thing—I’ve never seen it before and the second thing was it’s not right. There’s something wrong with it.’

  ‘Did you say anything at that time about it when you said you thought there’s something wrong with it?’

  ‘No. I think I intimated I wasn’t very comfortable with it and that I wanted to check it out but I was going to, you know, deal with that with Anita Archer I think, more than with him at the time. I needed to feel sure. It’s a big deal to tell someone that they’ve got a huge fake on the wall. You don’t make yourself the most popular creature in the building when you do that.’

  After that visit, Archer had ‘volunteered’ a statutory declaration from Le Tet, but Wendy remained ‘very doubtful’. She had ‘no idea’ about Le Tet and ‘was still positive that the picture was a fake’.

  In late 2009, Wendy found herself dealing with another dubious Lavender Bay painting—the orange painting that Crawford wanted her to see.

  ‘After you viewed the painting, what did you say to Mr Crawford about it?’

  ‘I said it’s a fake. It’s definitely a fake … the lack of spontaneity, the lack of wit, the lack of, you know, just lack of spirit—the lack of everything. It was heavy, wooden. It looked as though it had been traced and knitted together badly. I’ve seen worse but, you know, it was pretty bad.’

  Upstairs in the public gallery, Andrew and Nicky Crawford were sitting and listening to Wendy’s testimony. Ola Drake was there too, hearing her painting declared fake. Downstairs in the dock, Gant and Siddique were busily writing notes and sending them to their respective lawyers via the court guard.