Whiteley on Trial

by Gabriella Coslovich

  The Ribbands lunch with journalists was cancelled.

  At 2.35 p.m. the jury entered the courtroom and silently took their seats. The jury had a 2-word response. The forewoman looked squarely at the judge and said: ‘Moving on.’ The judge looked as though his team had just kicked an own goal.

  If the jurors were hoping to hear evidence from the defence, they were disappointed. Wraight called no evidence on behalf of Gant. Nor did Siddique give or call evidence. However, two character witnesses were trotted out for the conservator.

  During the course of the trial, we had been told that Siddique was a man of great repute, a master craftsman, the best restorer in the land. One of the best in the world, according to Gant. Such a man should have been able to call upon any number of respected colleagues and clients to vouch for his integrity. Prominent barrister Allan Myers, perhaps, for whom Siddique had bid at art auctions and restored valuable paintings. Fellow conservators in high places. Reputable art dealers and auctioneers who had once lauded his talents. But none of these were here to defend Siddique’s character. Siddique called upon a barrister—not Myers—and a dentist with a penchant for wearing a long fur coat.

  The defence must have had Gavan Rice on stand-by. That Monday afternoon the frail-voiced barrister was in the witness box within half an hour, vouching for Siddique’s honesty. He had helped Siddique in a couple of disputes: one involving a builder who went bankrupt and left Siddique ‘in the lurch’, the other involving a car deal that went wrong. The barrister had used Siddique’s services: the conservator had repaired a 100-year-old painting with a hole in the canvas, and another that needed cleaning.

  ‘He’s been, as far as I’m concerned, a person of the highest integrity for the thirty-three or thirty-four years that I’ve known him,’ Rice said.

  The second character witness made a flamboyant arrival the following morning, dressed in a full-length, vintage fur coat. He was Dr Jonathan Hartley, a locum dentist from Bendigo—Ribbands advised him to remove his fur coat before the jury entered court. An avid art collector and former dentist of the Collingwood Football Club, Dr Hartley-in-furs had been the subject of a 2005 Archibald Prize portrait by artist Lewis Miller. Hartley, fur-less in the witness box, spoke of meeting Siddique in the early 2000s at a life drawing class. Siddique’s character was ‘impeccable’, he said, using the same word that Archer had used to describe the provenance of Big Blue Lavender Bay.

  ‘I’ve never known him to lie,’ the dentist said unprompted.

  Hartley had stored paintings with Siddique, and used Siddique’s services. ‘When I had my own exhibition he offered to varnish all my paintings, which was very lovely of him.’

  Hartley even professed to have seen Big Blue Lavender Bay at Siddique’s Collingwood warehouse, leaning up against the stairwell to the left of the building on the ground floor. So much for the painting being locked away. Ribbands asked the dentist when he had seen the blue painting.

  ‘I can’t remember really, probably mid-2000, something like that, 2005, 2006, something like that, but other than that, I’ve got rising damp at my age.’

  ‘I’m sorry, what was that?’

  ‘I’ve got rising damp, you know, I forget things.’

  The diagnosis sounded far less grave than Playfoot’s Alzheimer’s, but it did impinge somewhat on the sharpness of his recollections. Borg asked the dentist whether he might have seen Big Blue Lavender Bay at Siddique’s around 2007.

  ‘It could be. As I said, I’m very vague.’

  It was not mentioned that Hartley himself might have needed a character witness once or twice. A quick search of that marvellous tool—the Internet—drew one’s attention to the fact that Hartley had appeared before the Dental Practice Board of Victoria a couple of times and was not at all enamoured of keeping proper dental records of his clients. Siddique’s son approached the dentist after his testimony and warmly shook his hand.

  And that was the extent of the defence’s evidence. Tom Gyorffy’s words came back to me: If the jury says no, we want to hear more, the defence is cactus if they don’t give evidence.

  The jury was dismissed until 2 p.m. and the defence barristers returned to amputating the Crown’s evidence. They did not have to work too hard; the judge had already formed a firm view about the prosecution’s case.

  ‘I do not think that a reasonable jury properly instructed could find the accused guilty in this case,’ he told his counsel. ‘It’s just devastating evidence, the evidence from Mr James and Ms Milburn … It just harpoons completely, I would have thought, the Crown case.’

  After this encouraging exchange, Borg gave her closing address to the jury.

  Borg used her version of ‘string theory’ to explain a circumstantial case to the jury. One strand of string on its own was weak: if you pulled on it, it broke easily. But many strands of string wound together formed a nice tight, strong cable. And that’s how the jury should think about circumstantial evidence—not as individual pieces, but as many strands making up the totality of an argument.

  Borg’s strength was addressing the jury—she was skilled at making the complex accessible, at telling this multi-plot story as smoothly and simply as possible. But she drew some conclusions that would attract the judge’s ire and lead to the jury being cautioned about her as well as her expert witnesses. After watching her evidence being chipped away by the demands of the defence and the rulings of a meticulous judge, this was her last chance to present her argument to the jury and she pushed that argument as far as she could, to the limits of the law.

  Siddique and Gant had the expertise and the state of mind to commit a major fraud, she said. The defence would, of course, put an alternate hypothesis to them—that the paintings in Morel’s photos were just copies. But if this was the case, why did one never see the original and the copy together?

  ‘A bit like Superman, you never see Clark Kent and Superman in the same room,’ she said.

  When it came to Milburn and James, Borg put it to the jury that these two witnesses’ evidence was flawed. The first time Milburn saw the consignment book since working for Gant in 1988 and 1989 was on 15 July 2013 at Gant’s solicitor’s office. She was asked to look at the consignment book, in particular page twenty-three, dated 28 June 1988, which listed the three suspect paintings. She was asked to identify her signature on that page.

  The consignment book had been tampered with—but not by Milburn, Borg said. She argued that consignment note twenty-three had originally simply stated ‘1. Brett Whiteley’, in other words, one painting by Brett Whiteley. Everything listed after that—the titles and dimensions of the three suspect paintings—had been added later by someone other than Milburn. That explained why the number ‘1’ was next to ‘Brett Whiteley’ (misspelt as ‘Whitely’) on the consignment note’s first line, with the title ‘Big Blue Lavender Bay’ written beneath it, and then on the next line the number ‘2’ and the title ‘Orange Lavender Bay’, and on the subsequent line, the number ‘3’ and the title ‘Lavender Bay through the Window’. The jury would have seen that surrounding invoices were not like this—numbers were used to quantify how many works by an artist were in a consignment, not to list titles. For example, consignment note twenty-one, also in Milburn’s handwriting, listed, among other works, ‘1 x Williams’, ‘1 x Whitely’ and ‘2 x Drysdales’. Milburn had given honest but inaccurate evidence, Borg said. What she had identified was her signature—‘and the power of suggestion is very strong’.

  Jeremy James presented a bigger hurdle for the prosecutor. Despite a year elapsing from the committal to the trial, the police had not forensically tested the catalogue of A Private Affair. In the absence of hard evidence that A Private Affair had been forged, Borg was left to create a plausible alternate hypothesis of her own. James had sworn under oath that he had photographed Orange Lavender Bay and Big Blue Lavender Bay in 1989, and worked on the A Private Affair catalogue in 1989. Borg argued that James had confused his catalogues. He had told the c
ourt that he had only ever worked on one catalogue for Gant in 1988–89—and his name was listed as a photographer on Peter Gant’s Autumn 1988 exhibition catalogue. He must have been thinking of this catalogue—and on page fifty-two and page fifty-three of the Autumn catalogue there was an orange painting and a blue painting, both by Whiteley. ‘Amazingly’, she said, James identified the two paintings in court as the two he had photographed, ‘despite not having a background in art and not knowing how many blue or orange Lavender Bay paintings Whiteley had painted by 1989’.

  ‘And he was only ever asked to identify these paintings in the flesh once since he says he photographed them twenty-eight years ago. And that was right here in front of you.’

  But Mr Le Tet, she said, stated that he had never purchased Whiteleys directly from Christian Quintas or from Brett Whiteley and that he had no Whiteleys in his office through the 1990s.

  ‘On 22 August 2011, Mr Le Tet’s PA sent Anita Archer an email on his behalf indicating that he had gone through the business records and diaries and archives of the business and was not able to identify a transaction for the painting Blue Lavender Bay,’ Borg argued. ‘So given what Mr Le Tet says in his evidence, Mr James can’t be right about the Blue Lavender Bay and indeed the Orange Lavender Bay being in the boardroom in 1988. You would think that the best person to remember this in the boardroom is Mr Le Tet.’

  She went on to argue that Gant’s police interview showed that he had enough knowledge about Whiteley’s life to create a story of false provenance about the paintings, to minimise the risk of deception being detected.

  ‘He was well aware of when Wendy and Brett separated,’ she said.

  In the police video, he showed contempt for the so-called nouveau riche buyers he sold the paintings to. As for Siddique, well, he was the only person with access to the locked storage area at Easey Street, and he was ‘more than capable of producing the works in court’.

  Borg finished her address with the hope that the jury now had a cable, not just strands. She told the jurors that they should find Gant and Siddique guilty of the three remaining charges.

  The jury was dismissed at 4.10 p.m. that afternoon. They would hear from the defence barristers in the morning.

  After they left, Borg heard from the judge. He was furious about her handling of James’s evidence. While she was giving her closing address he had looked ready to explode, and now he let loose.

  ‘If you are going to criticise a witness and say that he might be mistaken about something like that, you have got a duty to apply to me and say, “I want to cross-examine this witness because I want to show him and ask him whether or not that was what he saw,”’ the judge said angrily.

  ‘For one thing it doesn’t look anything like those paintings—that’s your forensic choice. But the other, more importantly, is that you’ve never given the witness any opportunity to say anything about them. He might have said quite devastatingly, “What, what are you talking about? That’s rubbish. That’s not what I’ve photographed.” You’ve now sought to plant in their minds that that’s what he might have done, haven’t you?’

  Borg would pay for her transgression.

  ‘He had steam coming out of his ears,’ I overheard van de Wiel say the next morning as the barristers settled into the twenty-second day of the trial. He was referring to the look on the judge’s face while Borg was dissecting James’s evidence. ‘She really pulled a stunt,’ van de Wiel said.

  But hadn’t the ‘learned friends’ agreed that Borg could proceed in this manner without penalty? Hadn’t van de Wiel said ‘dib dib’? Or was I misunderstanding something yet again? Had Borg gone a step too far in speculating just how James and Milburn were ‘mistaken’?

  The judge was still seething that morning. If the paintings on pages fifty-two and fifty-three of the Autumn exhibition catalogue looked like the ‘vastly blue and vastly orange paintings in court, then I look like Brad Pitt … and I wish I did,’ he said. In the dock, Gant and Siddique were beside themselves with laughter.

  Van de Wiel stood up and declared that Borg had made an ‘egregious breach’ of the rules of cross-examination, and next time he did a lecture on these rules, he would use Borg’s performance as ‘a glaring example’. The jury needed to be told what she had done was wrong; however, he didn’t want her being made into ‘a sexist whipping boy in front of the jury’, as that would not be fair to his client.

  Borg did not resile from saying that James had only worked on one catalogue in 1988–89, but she was happy to address the jury about the orange and blue paintings in the catalogue if that was what the judge wanted.

  Justice Croucher accepted that she had honestly felt entitled to do what she did. He would direct the jury during his final instructions and explain that Borg had not behaved dishonestly, but that there were rules about the correct way to deal with witnesses, and James was not given the opportunity to respond.

  Borg thanked him.

  ‘Reputation is everything, as Your Honour knows,’ she said.

  ‘Of course,’ the judge said. ‘It’s all we have as barristers.’

  At 11.30 a.m. the jury was called in to hear Wraight’s closing address.

  Brett Whiteley was ‘something of a rock star artist’, but he was a ‘human being’, and in the late 1980s, his work became inconsistent, Wraight told the jurors. The ‘brown’ painting, he submitted, was a ‘pretty sad example of the type of work he was capable of’: ‘flat’, ‘lifeless’ and possibly even ‘inferior to that blue’, he said, pointing to the painting in court.

  The ‘brown’ painting—View from the Sitting Room Window, Lavender Bay—had become as much of a character in this story as the two suspect works, and now it was being maligned as being worse than one of the suspected fakes. I wondered what the current owner of the painting would make of all this—whoever he or she was.

  Wraight was leading to the ‘masterpiece syndrome’ idea once more—that not everything Whiteley produced was masterly, but that didn’t mean the paintings in court were fake. Morel saw copies of Whiteley-style paintings being completed at Easey Street, and then someone in the police force thought it must be something ‘sinister’ and started to ‘join the dots’. Wraight painted the picture of a cascading series of events leading catastrophically to Gant and Siddique being in the dock—through no fault of their own.

  The ‘alternative hypothesis’ that the paintings in Morel’s photos were ‘poor copies of these originals’ was made yet again. I was finding it increasingly hard to keep hearing this story. Some of the jurors seemed to be feeling the same way. None of them were taking notes. Some were zoning out. One of them looked at the clock. But Wraight soldiered on.

  ‘This is a criminal trial. You can’t act on a hunch or a suspicion or a feeling or “this has a smell about it”,’ Wraight said, repeating words I’d heard him use before.

  ‘And in this state we only convict people on evidence and on the high standard of beyond reasonable doubt.’

  There was no evidence of joint criminal enterprise, he said. No conversations between Siddique and Gant in relation to producing or selling paintings. No evidence of the paintings being picked up from Easey Street and somewhere connected with Gant. No evidence of transport records. No evidence of money changing hands, no bank records—nothing, none of that.

  Well, that wasn’t entirely true, I thought. There was evidence of millions being transferred to Gant, albeit not to Siddique. And there was a conversation in the presence of Gant when Siddique talked about producing ‘million-dollar paintings’—but it had been canned.

  ‘What you do have is genuine documentation in a bound book quoting this blue painting being cleaned, varnished and reframed or being quoted to do that in 2006—a year before it was said to be created by Mr Siddique,’ Wraight said.

  This piece of evidence had come in late to the trial—it seemed strange that the defence had only begun drawing attention to it in the past few days. Siddique’s Victorian Art Conserv
ation invoice book had another invoice from 10 October 2007 quoting a ‘surface clean’, ‘varnishing’ and ‘new frame’ for a ‘Lavender Bay by B. Whiteley’. This was the invoice Siddique had shown Archer when Pridham began asking questions about the veracity of Big Blue Lavender Bay. But now an earlier invoice had emerged—listing a ‘Lavender Bay—Blue’ for surface cleaning and varnishing. While the 2007 invoice did not note dimensions, this new invoice dated 14 July 2006 did—‘1600 × 2500 mm’ (the dimensions of Big Blue Lavender Bay given on the suspect consignment note supposedly from 1988 were 151 by 242 centimetres). On its final line this new invoice noted ‘possible framing’. The word ‘blue’ tucked onto the end of Lavender Bay after a hyphen seemed odd to me. Had the word been added later? And why were there now two invoices for the one job? One dated 2006, another 2007? How many times had this painting been cleaned? And how could the blue painting have been cleaned in 2006? Hadn’t it only been brought down from Robert Le Tet’s Sydney office in 2007? That was the story Gant had told Archer. He’d also told police that the painting had been wrapped up and in storage at Questco. These discrepancies were remarkably going unnoticed.

  The prosecution, Wraight said, had not proved beyond reasonable doubt that the paintings in court were fake. The consignment note and catalogue the Crown claimed had also been forged had not been forensically tested.

  Wraight challenged Borg’s suggestion that James had mixed up his memory of A Private Affair with the Peter Gant Autumn 1988 exhibition catalogue. There were two photographers for that catalogue—Mark Ashkanasy and Jeremy James—and the prosecution had not determined who had photographed what. James never had the chance to respond as Borg did not cross-examine him, and the Whiteleys Borg referred to in that catalogue looked completely different to the paintings in court.