Whiteley on Trial

by Gabriella Coslovich

  ‘That argument, ladies and gentlemen, is just nonsense,’ Wraight said.

  The Crown’s expert witnesses, Sloggett and Kowalski, did not provide evidence beyond reasonable doubt that the paintings in court were fakes. Their analysis was not scientific: they could not date the paintings and their stylistic assessments had not compared like with like.

  ‘What happens with experts, ladies and gentlemen, is that they are too busy applying their expertise, that they forget to apply what you have and that’s common sense.’

  He told the jury to give ‘very, very little weight or no weight to Sloggett and Kowalski. In fact, their evidence should be rejected.’

  Wraight spoke for an hour and a half before the court broke for lunch. But there was more to come from him that afternoon.

  As the court prepared to resume after lunch, Gant caught me looking at Orange Lavender Bay and decided it was time for another art lesson. He stood up in the dock and started pointing, recounting the story that he claimed Quintas himself had told him about the iconography of the orange work. The big curves at the bottom of the painting represented a woman’s bum, he said, with a salacious grin. The central pier and tugboat at the top of the painting was a penis, and the trees and rocks at the centre bottom of the painting represented a woman’s genitalia.

  ‘I see,’ I said, smiling awkwardly.

  He told me that he had wanted to get into the witness box and discuss the painting’s iconography, ‘but they wouldn’t let me’.

  Wraight’s closing address would take the rest of the afternoon. Borg had kept her address to under two hours; Wraight’s address went for almost three. I willed it to be over and marvelled at his stamina and conviction.

  He referred to Quintas’s Darlinghurst address written on the back of the blue painting—Wendy Whiteley had stated that Quintas lived in Double Bay with Janice Spencer around 1988 and 1989. She had also said that he had had a small flat somewhere in Darlinghurst beforehand—so the Darlinghurst address on the blue painting was ‘consistent generally with the timeframe’. I knew it was forbidden, but I kept going back to the seditious idea that if you were going to fake an artwork, you were going to fake provenance. It wasn’t that hard to whack an appropriate address and a name on the back of a painting.

  The orange painting did not have Rincon’s frame on it, Wraight said. This would remain one of the mysteries of the case. The defence had suggested that it might have been created by a certain Wolf Breitzmeier who sometimes did work for Whiteley when Lichtenstein was too busy. They had pointed to the number ‘2520’ that was on the back of the blue painting—2520 was the postcode for Wollongong, where Breitzmeier had lived and worked. But 2520 was written on the back of the blue painting—so what did this have to do with the orange? And Rincon had identified the frame on the blue painting as his. Was I missing something? I supposed the defence was suggesting that the blue painting might have originally been in a Breitzmeier frame.

  Wraight persevered. No fewer than eight people experienced in dealing with Whiteleys thought the orange painting was not only ‘genuine’ but ‘beautiful’, he said. He listed them: John Playfoot, Tim Goodman, Geoffrey Smith, Chris Deutscher, Damian Hackett, Georgina Pemberton, David Cook and Sydney gallerist Robin Gibson, who had represented Brett Whiteley.

  So why weren’t any of these people in court giving evidence for the defence? I wondered. Because of some other nuance of law of which I was ignorant? I knew what some of these people thought of the orange painting—I had spoken to several before the trial and they were not as convinced as the defence was suggesting.

  The main problem with the third suspect painting, Lavender Bay through the Window, was that there was scant evidence about it because it had not been analysed, Wraight said. Sorry? It had not been analysed because the painting had vanished—and Gant had no intention of revealing its whereabouts. Wraight bypassed that detail. He did, however, state that the painting was listed on the same consignment note as the other two paintings, which gave ‘powerful unchallenged evidence about its provenance’. Seriously? When I thought back to Rosemary Milburn’s evidence I wasn’t so sure. How much of the three ‘Whiteley’ paintings had she seen through crate and bubble wrap? But there was no getting around the prosecution’s failure to forensically test that invoice book.

  There was more to come. Gant had not deceived anyone. He didn’t represent Big Blue Lavender Bay to Pridham, Archer had.

  ‘The chain of deception, if I can call it that, is broken by Ms Archer,’ Wraight said.

  Gant didn’t introduce Ralph Hobbs to Lavender Bay through the Window; again, Archer had. Nor did Gant sell Orange Lavender Bay to Nasteski. Playfoot had.

  As for the falsified letter of provenance purportedly signed by Le Tet—‘just really a storm in a teacup’, Wraight said. There had been many great lines in this trial, but this one skyrocketed to the top of my list. A storm in a teacup.

  Gant’s police interview, Wraight said, showed a man who seemed a little ‘exasperated’, but who answered questions ‘honestly and consistently’. Had we watched the same video?

  At day’s end, Wraight wrapped up by reminding the jury that it must put aside any emotional responses or views or hunches or suspicions. And then he appealed to their emotions.

  ‘You don’t get a second chance,’ he said ominously. ‘You can’t come back next week and knock on that red door down there in William Street—Lonsdale Street and say, “Look, I’ve been thinking about that consignment book.” Too late. You can’t just put it in the too hard basket. That’s why His Honour gave you that direction on Monday,’ he said, reminding them of the Prasad.

  ‘It’s not because your role was to be diminished in any way, quite the contrary. Your job is more important than anyone’s in this courtroom and although we carry on and we wear silly costumes and His Honour gets to wear a red one, your job is the most important.’

  Their job was more important than anyone’s, but they should listen to the man in the silly red costume sitting up high on the big wooden bench.

  Remy van de Wiel was a florid performer; he relished the theatre of the court, but I wondered whether he had misjudged his audience. On Thursday morning he gave his closing address—the trial’s last. He warmed up with a long history lesson, then engaged in a many splendoured sequence of metaphors, which in my mind I subtitled ‘Planes, Trains and Automobiles’. The Crown had its train and the defence had theirs, and they were on ‘separate tracks’: the defence’s train started in 1988–89, and the prosecution’s train started in March 2007. The defence’s train was on the right track.

  There was nothing evil going on at Easey Street—there was just this ‘hotbed of suspicion that seems to grow like yeast in the mind of Mr Macdonald’, who then went on to ‘pollute’ the minds of Sloggett and Kowalski. Van de Wiel was Shakespearian in his observations.

  If Siddique was intent on deceiving people, why would he have put a Rincon-style inner black slip-frame on the blue painting rather than the Lichtenstein version? van de Wiel asked the jury. ‘Anyone who knew Whiteley’s [preferred style of frame] would realise immediately that it is not the correct form of framing. Why draw attention to it? It had a baguette on it before, put another one on. Why put a bumper bar on a 1934 Bugatti which is consistent with a Ford Falcon and not the Bugatti?’

  Gant seemed to be the only one enjoying van de Wiel’s routine; he laughed away in the dock. The young hoodie-wearing man on the jury stretched and yawned audibly. The forewoman looked sceptical. Van de Wiel progressed to World War II and the allied bombers, who would send spotter planes to photograph areas where bombing was to occur. Aeroplanes didn’t always fly flat, and therefore some photographs gave a distorted view of the lie of the land—photogrammetry was used to flatten the photographs so that bombers would not attack the wrong sites. A similar exercise should have occurred with the photos of the Easey Street storeroom—but did it? No, van de Wiel said accusingly. This left the jury incapable of accurately matchi
ng what they saw in Morel’s photos to the paintings in court. Ditto with the infra-red images: there was no large overlay of all the bits and pieces that Kowalski had photographed. And, as the judge had already warned, the jury was not allowed to conduct experiments.

  Having discredited Sloggett and Kowalski, van de Wiel turned to Whiteley—‘a drug addict’ being ‘pestered’ by Sydney people to produce Lavender Bays, and his ex-wife, with her ‘very sad life’, who had lost her marriage, her daughter and ultimately her husband of many years, and who was ‘reluctant to accept anything that might damage brand Whiteley’.

  I kept my face turned down to the wooden bench engraved with the names of bygone court reporters. I didn’t want the jury to read my distaste.

  They had endured two and a half days of barristers’ closing addresses, and now they faced another two days of instructions before being sent out to deliberate—the judge’s ‘charge’ or directions to the jury ran to 225 pages of transcript. At one point during the judge’s charge, the young man in the hoodie sank so low in his seat one could barely see his head over the wooden bench. I sympathised with his weariness.

  Sloggett was singled out for piercing criticism. No fewer than eight warnings were issued against the evidence of the professor and her employee. A ninth warning was made after further legal discussion in the absence of the jury and yet another request from the defence.

  The judge reiterated the defence’s concerns. No broad overview of the infra-red photography of the orange and blue painting. No photogrammetry of Morel’s photos. Comparing the underdrawings in the infra-red photos to the underdrawings visible in Morel’s photos would be speculation. ‘As I told you more than once, you cannot act on speculation,’ the judge said.

  Sloggett should never have asserted that a person who faked a painting would also fake provenance. She had gone beyond her scope as an expert witness. She was out of line. Unscientific, inconsistent, potentially biased and ultimately inconclusive. Sloggett’s and Kowalski’s evidence alone could not prove beyond reasonable doubt that the blue and orange paintings in court were created by Siddique, he told the jury.

  Warning number seven bemused me most of all: Sloggett and Kowalski had not examined Lavender Bay through the Window. ‘It’s out the window, it’s gone, it’s not part of this case,’ the judge had said the week before in the absence of the jury, while Gant laughed in the dock. Wraight had asked the judge to refer to this in his jury directions. The judge duly did. The painting had never been recovered and Gant was not telling where it was. But this was held against Sloggett and Kowalski, raised as a warning against them. They had not analysed it.

  The judge provided no fewer than four alternative—innocent—explanations for Gant’s falsified letter of provenance about Big Blue Lavender Bay for the jury to consider. Gant could have been worried that if the sale were rescinded, he would have to give the money back. He might have thought that including Le Tet in the painting’s provenance was in a sense ‘morally accurate, if not strictly legally so’—because Le Tet had financed so many of his art purchases. There was Gant’s own explanation to police—just because he told Archer that the painting belonged to Le Tet, and Le Tet would deny that, didn’t mean the painting was not 100 per cent genuine. And, when the painting started to be questioned, Gant might have feared that people would allege that it was fake, ‘and so a person in a panic might overstate things’.

  At 3.20 p.m. on Monday 9 May, the jury was finally set free to deliberate. Sensibly, they opted to go home and begin afresh in the morning. Their heads must have been swimming in a murky broth of metaphors, alternate hypotheses, principles of law and the varying and conflicting stories of twenty-five witnesses.

  Justice Croucher had firmly planted the seed that the jury could not convict beyond reasonable doubt—just as he had during the Prasad invitation. I could not see how the jury could possibly convict after being given such strong directions.

  Gant had brought an entourage with him on this significant day—wife, three daughters, son and a loyal male friend who had watched much of the trial were all here to see the jury go out. His family were here to support him, to show the jury that he had their backing. He was not a con man. He was a loved father, husband, friend. At one point, his youngest daughter walked past the dock and Gant cackled, ‘You can come up here and sit with me.’ She looked at him sternly and said, ‘I’m not sitting up there with you.’ It was hard to tell whether she was joking or serious.

  Gant’s attitude to his hand-picked jury was deteriorating. When the trial started, he would stand straight to attention when the jurors entered the room, facing them with his hands clasped behind his back, chest upright, looking like the class prefect, the good boy. The jurors held his fate in their hands, and he submitted to them. But in the past few days, he had begun facing them with arms crossed, a dark look on his face, as though they were at war, as though he were defying them to convict.

  That afternoon, we were all set free. I was glad to escape the oppression of courtroom three, glad it was over, glad that I would not have to spend another day listening to fanciful stories, misunderstandings about art, bizarre leaps of logic, and endless legal arguments that made my head ache. I understood now why it was called a ‘trial’.

  As we ambled out of court, van de Wiel turned to the paintings and hissed, ‘Fucking nauseating, I hate all Whiteleys, especially that Dr Cripps.’ He had confused his murderers, and his names. British serial killer John Christie had been the subject of Whiteley’s paintings. The Michigan-born Dr Crippen—not Cripps—was another infamous British murderer who had killed his wife. But I knew what van de Wiel meant.

  That evening I shared my dismay at the evisceration of the Crown’s case with Tom Gyorffy. For weeks he had been encouraging me to hire the film The Verdict from a ‘video store’. ‘It will make you feel better,’ he said. Who went to video stores any more? I did. I rang my local—one of Melbourne’s last. A pleasant-sounding woman answered. How lovely to speak to a human. Yes, they had The Verdict in store, and F for Fake. I figured I may as well go all out.

  The Verdict, from 1982, starred Paul Newman in the role of an alcoholic lawyer, Frank Galvin, trying to resurrect his ailing career. He takes on a difficult medical malpractice case involving a woman who is erroneously given an anaesthetic during childbirth and chokes on her vomit, depriving her of oxygen and leaving her comatose and dependent on a respirator. Her sister and brother-in-law seek compensation from the Catholic hospital where the terrible incident occurred.

  An offer to settle out of court is refused by Galvin. He tracks down a nurse who knows the truth and convinces her to testify in court—everyone else involved has scurried from the case. The nurse speaks out against the anaesthetist who made the mistake and fraudulently covered up his error, but Newman’s legal opponent convinces the judge to declare her testimony inadmissible on technicalities. In his impassioned closing address, Galvin tells the jury, ‘Today you are the law.’ The jury finds on behalf of his clients. Did it cheer me up? Not really. It was cathartic and powerful, but such things only happened in the movies. There was no Paul Newman in courtroom three. Gyorffy was dreaming. I told him so.

  ‘Juries have acted that way in Victoria,’ he told me via text. ‘Juries don’t like being told what facts to find. They tend to be informed by a sense of justice and fairness.’ His faith in the jury system was paramount. In all his years as a barrister, of the 460 trials in front of a jury, only two got it wrong, he told me.

  While the jury deliberated, I sought refuge in the magnificent Supreme Court Library, sheltered under its domed ceiling, hid between shelves stacked with heavy leather-bound tomes. On the first floor, I occupied a small reading bay overlooking the law quadrangle, cocooned by books and silence—it was a haven from the tensions of courtroom three.

  After midday, I went to visit Ribbands. I was keen to speak to him about the case and he had some time to spare. As I crossed William Street to Owen Dixon Chambers, where Ribbands
’s office was, I saw Gant on the side of the road. He was standing on the passenger side of a grey BMW, scratching the head of a cute little black dog sitting on the roof of the car. It was his friend’s dog and car.

  ‘What are you doing?’ Gant asked. I was off to see Ribbands.

  He was in a grumpy mood, furious that the media hadn’t reported Justice Croucher’s excoriation of Sloggett.

  ‘She’s been crucifying the art world forever,’ he said.

  It was time she got some of her own back, he said. The jury was his next target. The jurors hated him, and he didn’t like them either. No love lost. The forewoman especially aggravated him. Why had he singled her out? Because she had not fallen for his charms? To me, she had seemed fair and forthright. So, too, had several of her middle-aged male peers, who smiled infrequently and listened carefully.

  ‘You can come and see me in jail,’ Gant said, with a bitter laugh.

  ‘You’re not on Aman’s Christmas list,’ Ribbands chuckled. The articles I’d written while at The Age had upset Siddique. But I had not mentioned his name once—why would he have taken offence? Ribbands had represented Gant when he sued The Age. I wondered whether he’d ever been paid—Ribbands had been among Gant’s creditors when he went bankrupt in 2011.

  The barrister’s chamber was a flurry of paper, piles everywhere, a chaotically creative space. On the walls hung a couple of awkwardly suggestive charcoal nudes—female—I turned instead to the view over Etihad Stadium, and glimpses of the bay.