Whiteley on Trial

by Gabriella Coslovich

  Wendy saw the third suspect painting—the work that Gant had given to Guy Angwin, that was now missing—in an email that Archer sent to her on 5 February 2010. Archer was seeking copyright for the painting and had attached an image of it.

  ‘What did you say to her?’ Borg asked.

  ‘Anita, you have to be joking. Go back to art school … I refused to give her copyright permission.’

  Before she had been approached about the three suspect paintings, had Wendy ever seen them exhibited anywhere before? No, and they had not been ‘pushed forward’ for the Whiteley retrospective in 1995, which would have seemed likely had they existed at the time.

  ‘Were there any Lavender Bays you saw where you went “This is a bad time for him, he’s not painting properly his usual masterpieces”?’ Borg asked.

  ‘Yes, one.’

  That ‘one’ was the ‘brown’ painting, View from the Sitting Room Window, Lavender Bay, which Gant had bought at auction in March 2007 and had delivered to Siddique’s Collingwood studio. Wendy had seen it go up for sale at a house auction in Mosman in 1998, and had her doubts until she was shown a ‘sad’ photograph of Whiteley standing next to the work.

  In cross-examination, Wraight turned to a subject Wendy Whiteley loathed discussing: Janice Spencer.

  ‘It’s not unreasonable, is it, to say then that once you had separated and that Janice Spencer had become Brett’s partner that she also had an influence in his life and his work?’

  ‘Brett never said that, no. In fact, he said the opposite,’ Wendy countered sharply.

  ‘But she too was the subject of his work?’

  ‘Twice.’

  ‘Well, one famous painting, wasn’t there—there was a painting called Sunday Afternoon, Surry Hills painted in 1988?’

  ‘Yes, and she was left that in the will, yes.’

  ‘And it’s been said by various commentators that that was painted at the height of their relationship?’

  ‘I suppose so.’

  ‘You can agree with that or not?’

  ‘I suppose so. It’s a nude,’ Wendy replied, with withering wit.

  Wraight changed the subject to the defence’s perennial favourite: drugs. Wendy herself had said that Brett’s heroin use was not conducive to producing great art. Wendy nodded.

  ‘And you also agree, do you not, that during that time of addiction he produced what you have referred to as lifeless, still, dead paintings, you agree with that?’

  ‘No, that is far too general a question, because first of all, what period?’

  ‘Well, in the ´88 period, ´87, ´88 or earlier?’

  ‘No.’

  ‘In the early eighties, would you agree with that?’

  ‘No.’

  Wraight had another argumentative, non-complying woman on his hands. He reminded her of the comments she had made in the 1995 catalogue Art & Life in which she spoke about the ‘detrimental effect’ heroin had had on Whiteley’s work. She described some of the paintings created for the 1988 Birds show as ‘dead’.

  ‘Do you agree you said that?’ Wraight asked.

  ‘Some of them, yeah … one or two of the paintings,’ she said.

  But the question obviously played on her mind. She came back to it, interrupting Wraight in the middle of another question. She needed to clear things up.

  ‘You kept asking me about the loss of potential—what I meant was that I was very sorry that Brett had died and he potentially had lost the chance to get clean and fulfil his full potential, as the artist he had been for a long time before he even started using heroin.’

  ‘All right?’

  ‘I want to make that quite clear because it keeps being brought up as though, you know, somehow or other it was just his addiction. It was his death,’ she said emphatically. ‘His death from his addiction that was the loss of potential.’

  Her words hung heavily in the room.

  Whiteley never painted average paintings, Wendy told Wraight. He wasn’t an average artist.

  ‘No, but you would agree that an artist, even a great artist … everything they do isn’t a masterpiece?’

  ‘I would say the same thing about Picasso or Matisse and they would say the same things themselves but it’s at a different level than an average artist.’

  Wraight tried again.

  ‘Do you agree that there’s other Lavender Bay pictures that don’t come up to the level of Balcony 2?’

  ‘Um, they’re all pretty good, actually’.

  ‘All right?’

  ‘The ones that Brett did,’ Wendy answered drily, setting the jury laughing once more.

  Wraight returned to the blue painting and the comments Wendy had originally made about it. Hadn’t she told Archer originally, ‘Well, if it is a Whiteley, it’s a bad hair day Whiteley.’

  ‘Yeah, I know that she says I say that and I have used that bad hair phrase, probably a bit loosely.’

  ‘Yes, I think you used it in relation to the orange as well at some point, didn’t you?’

  ‘Probably … but the important part about that statement is if, if, if …’ Wendy said, stressing those ‘ifs’ as though she were thumping a table.

  If. If. If.

  ‘Okay, don’t lose my temper,’ she told herself audibly.

  Wanting to dispute Wendy’s suggestion that Whiteley didn’t do underdrawings, Wraight asked that Wendy be shown Morel’s photo of the ‘brown’ painting in Siddique’s studio. It was the first photo in the album and Wendy was specifically told not to look any further than that. Wraight wanted her to look at the ‘underdrawings’ showing through one of the skyscrapers. But Wendy had already begun flipping through the album.

  ‘Where were these photographs taken?’ she asked, a horrified look on her face.

  ‘No, no, please don’t look at those photos,’ Wraight said, looking harried.

  ‘Put it aside, thanks,’ the judge joined in.

  Wendy did as she was told, but she had already seen what came next, and the image had jolted her: it was a photo of the blue painting in progress in Siddique’s storeroom. The blue background had been carefully painted in around neatly drawn images of boats, piers, the Harbour Bridge, palm trees and a small peninsula. The composition was laboriously drafted—the blue background cutting in around the motifs that had yet to be painted, and Wendy had seen it.

  Wraight decided it was safer to give Wendy a photocopy of Sydney Harbour to the Spirit of Bill W instead. He started again. Towards the middle of the painting, he said, there was a very clear underdrawing of a boat.

  ‘No, it’s not, I wouldn’t call it an underdrawing,’ Wendy protested and started looking again at the photograph she had been told not to.

  ‘Thank you, close that,’ Wraight said firmly.

  ‘That other thing you’ve shown me has got some very heavy underdrawing,’ Wendy said mischievously, again referring to Morel’s photo. ‘Don’t look like Brett’s work at all, but, you know …’

  She was toying with the barrister. She knew what she was doing. In the jury box, the forewoman and the woman sitting next to her had seen it all and understood exactly what had happened. They were whispering to each other, referring to their own photo albums, smiling knowingly, and taking notes. Wraight was wringing his hands and grimacing.

  ‘There’s a problem with one of the counts, isn’t there? One of the charges? Can you see it or not?’ the judge asked irritably.

  The trial’s fourth week was not getting off to a good start for Borg. She was in the judge’s firing line once more. He chided her for delays in tracking down a crucial witness, Jeremy James, who had apparently just arrived back in Australia after visiting Disneyland in the United States. He criticised her for the lag in the editing of Gant’s police interview video. And now he was telling her that one of the charges was so weak that it didn’t look like a case at all. The judge was referring to charge number four, against Gant for giving Lavender Bay through the Window to Angwin as security for a $950 000 de
bt.

  The prosecution’s woes did not end there. Wraight announced that he would be challenging the rest of the counts as well. He was planning to submit that there was ‘no case to answer on all counts’, or, as an alternative to that—a Prasad direction. It sounded ominous. I googled the term and my fears were confirmed: a Prasad was an invitation to the jury to find the accused not guilty at the end of the Crown case without hearing any further evidence. But this seemed absurd. What about Morel’s photos? What about the doors, the frames, the infra-red images, the false signature on the provenance letter supposedly from Le Tet? The judge may not have been persuaded by Sloggett’s testimony, but surely it was for the jury to determine whether the evidence added up to a fraud? I texted Gyorffy the news. A dangerous strategy, he texted back. ‘If the jury says no, we want to hear more, the defence is cactus if they don’t give evidence.’

  There was only one witness on that sixteenth day of the trial: the now retired Detective Sergeant James Macdonald, stylish in a smart grey suit, his hair snow white and matching moustache groomed into a trim handlebar. The judge, who was an inquisitive sort, took interest in his accent. Was it Canadian? It was.

  ‘You are the first Canadian-accented Australian police officer that I’ve heard,’ the judge said with some satisfaction and wanted to know whether Macdonald had been in the ‘Mounties’. No, but his brother had.

  Macdonald now faced some tougher questions. Wraight challenged the detective’s competence. Hadn’t Morel called him on 21 September 2010 and told him that an exhibition catalogue provided by Gant had been examined and was genuine? Yes. Hadn’t the detective replied, ‘This will throw a spanner in the works with regards to Robyn Sloggett’s findings’? No, it was Morel who had said that. Did the detective make further inquiries into the catalogue and Morel’s report into it? He couldn’t recall.

  ‘Isn’t that what you would do as a detective investigating this?’ Wraight asked.

  ‘Well, I guess it was an oversight on my part,’ the detective quietly acknowledged.

  In a case of alleged art fraud, it’s important to verify provenance—such as catalogues and invoices—that is provided to support an artwork’s authenticity, as it too could be forged. Unfortunately, the constabulary oversights didn’t end there, and the defence gleefully leapt at them.

  During his cross-examination, Ribbands suggested that when Macdonald was shown around Easey Street by Morel in October 2007 and saw some paintings being made in Siddique’s storeroom, it may not have been a crime scene at all. Macdonald agreed that a crime was committed only if a copy or a fake was sold to someone as the real thing.

  ‘You could have got out your pen and put “JM”, your initials, somewhere on the back corner of the frame to see if it ever turned up in the future if that was the one that you identified on the premises that day, couldn’t you?’

  ‘I could have, yes.’

  ‘But you didn’t?’

  ‘I didn’t.’

  Ribbands then asked a question that would fuel the next day’s headlines. ‘As a result of your own interest in art and art fraud generally, and as a consequence of your first visits at the Easey Street premises, you made your own inquiries, investigations into Brett Whiteley’s works?’

  ‘I went on to Google to see what they looked like,’ the detective said unassumingly.

  The line was immortalised in The Australian the next day. A photograph of the detective leaving the Supreme Court of Victoria ran under the headline: ‘I Had to Google Whiteley, Says Fraud Case Cop’.

  The next morning, Jeremy James strode into court, fresh from his holiday at Disneyland, beaming in his linen jacket, striped shirt, jeans and polished black shoes. He seemed even more self-assured than he had at the committal. He was now claiming to have photographed not only the orange painting but also the blue painting in Le Tet’s boardroom in 1989.

  His testimony was a direct blow to the prosecution’s case that the paintings had not existed in the late 1980s. Borg had considered declaring him an unfavourable witness, which would have allowed her to cross-examine him and challenge his recollections. But for some reason she decided against this course and came to an agreement with her ‘learned friends’.

  As she told the judge that morning before the jury and the witness were called in: ‘I could seek to have him as an unfavourable but I don’t see a point in it … my friends have given me an indication, and I’d ask them to confirm that, that there won’t be a Browne v Dunn position taken.’

  A ‘Browne v Dunn’, I learnt, was a rule of fairness, ensuring that witnesses were given the chance to explain themselves if a party—in this case the prosecution—were to later oppose or discredit their evidence. What Borg was asking for was the right to later suggest to the jury that James might be ‘mistaken’ in his recollections, without being penalised for not cross-examining him, and the defence agreed.

  ‘There won’t be a Browne v Dunn point taken in relation to that,’ Wraight confirmed.

  ‘I’ll say dib dib,’ van de Wiel added.

  It seemed a risky and weak move, but I knew, too, that the police had not followed up on the request to do further background checks on James, leaving Borg with little to work with.

  And so James stood in the witness box unchallenged, swearing that he had photographed the Whiteley paintings in 1989 for the A Private Affair exhibition catalogue. Now a car salesman, he had once worked in the family business, Kenneth James printing, as a photographer. He said he had worked on just the one catalogue for Gant in the years of 1988 and 1989—A Private Affair.

  Borg asked James to describe the two paintings he had photographed in 1989.

  ‘Well, firstly, they were very large. They were both, um, Lavender Bay series paintings, one was blue and one was orange,’ James said, hands clasped around the wooden rails of the witness box.

  ‘At that time were you aware of how many blue Lavender Bays and orange Lavender Bays Whiteley had painted by 1988–89?’ Borg asked.

  ‘I have no idea.’

  Around that time, a man named Greg Korn, who had been interested in being a partner in Gant’s business, died suddenly, James said. His death greatly affected Gant, causing him to cancel the A Private Affair exhibition.

  ‘I remember that after Greg’s death, um, I think Peter Gant had a breakdown and the business floundered.’

  ‘As a result of the friend’s death?’

  ‘M’mm.’

  James told the court that the first time he’d seen the finished catalogue was the previous year. He remembered having several meetings about the choice of paper and that he had suggested using ‘A1 art paper rather than a tinted stock’.

  Wraight’s questioning of James was hardly a ‘cross-examination’. It didn’t need to be. Miraculously, a running proof of the A Private Affair catalogue had been found. James had just told Borg that seven years after the closure of Kenneth James printing in 2004 all of the company’s business records, catalogues and plates for catalogues were destroyed. During the committal he had said that even catalogues of general importance in the art world would have been pulped, and that if Stefanec went searching for these documents he wouldn’t find them because they just didn’t exist.

  And yet a running proof had survived, exhumed and brought in by James that very morning. He was now holding it up in the witness box so that judge and jury could view several pages with missing images and typographical errors marked up. On one blank page someone had written ‘What’s here?’—James identified it as his handwriting. He recognised his correction marks on a few other pages as well.

  ‘Certainly, in 1989 when you printed that catalogue, there was no such thing as digital printing?’ Wraight asked.

  ‘There was no such thing as digital printing,’ James replied firmly, repeating the barrister’s exact words.

  ‘Do you recall specifically, and if you don’t just say so, but do you recall specifically in relation to this particular catalogue how many would have been done in that
second print run?’

  ‘Twenty,’ James replied, rather specifically. During the committal he hadn’t been sure whether the catalogue had even been printed, and if it had, it was ‘possibly’ just a few copies. And now he was remembering exactly how many.

  ‘And apart from that second run, because this exhibition didn’t go ahead, was there any more printed other than that short run that you’re aware of?’ Wraight asked.

  ‘No, there wouldn’t be any printed.’

  ‘Was it the case that originally you had photographed the blue and the orange in anticipation that they would both be going into the catalogue?’

  ‘Possibly,’ James answered.

  ‘In any event, you photographed them at the same time?’

  ‘Correct.’

  ‘At Mr Le Tet’s offices in South Melbourne?’

  ‘Correct.’

  ‘At a place called Film House, is that right?’

  ‘That’s correct.’

  Even though James had visited Le Tet’s boardroom just the once, in 1989 to photograph the two paintings, when prompted by Wraight he seemed to recall that the financier’s personal assistant was called Heather.

  In 2011, James had been asked to look at an image of a blue painting and provide evidence in relation to it—Wraight handed the witness a photocopy of his photograph of the blue painting for him to identify. Wraight apologised for the quality of the black-and-white image. He need not have. James had come well prepared.

  ‘I’ve got one,’ James said triumphantly, whipping out a colour photocopy of the photograph of the blue painting from his briefcase. Gant laughed heartily in the dock at his friend’s antics.

  Wraight asked James to look at the paintings in court—did he recognise them as the paintings he had photographed? The blue? He recognised it. The orange? He believed so.

  Borg re-examined the witness.