Whiteley on Trial

by Gabriella Coslovich

  ‘And we appeal,’ Wraight said.

  ‘Yes. That’s another possibility that’s exercising my mind now more than it was before.’

  In the dock, relations between Siddique and Gant seemed frosty. When Siddique arrived, Gant, who was already there, stood up to let him through and tried to make eye contact. Siddique avoided his gaze. They eventually exchanged a few words, but there was none of the constant whispering and note-swapping that had occurred during the trial. Siddique couldn’t be pleased with Gant’s latest confessions to the media—and the prospect of compensating Pridham and Playfoot alone, given Gant’s apparent lack of finances.

  The matter was adjourned for another month, until 12 October 2016—the nearest date when judge and counsel would all be available. Outside the courtroom, Gant’s three daughters gathered protectively around him. I greeted him as I walked past.

  ‘Why doesn’t anyone ever ask me and Aman to check our diaries to see whether we’re available?’ he said, ever the joker. ‘I want the chance to consult my diary,’ he laughed.

  For all his joviality, he seemed tired, his face shiny and strained. He was living in limbo.

  Later that afternoon, I spoke to Susan Borg. The Crown had withdrawn its compensation orders, giving the judge the opportunity to go ahead and sentence. The case was becoming like a game of chess, with the judge pitted against the Crown.

  Andrew Pridham did not recoup a single cent of his $2.5 million loss. So I learnt on 12 October 2016, as yet another mention was clocked in the protracted saga of Gant and Siddique. Pridham’s fine art insurance did not cover losses caused by forgery, and his civil case against Anita Archer, who had sold him Big Blue Lavender Bay, was dropped in August 2013, with no order as to costs. But now he wanted his money back. So did John Playfoot, who was still $990 000 out of pocket after having refunded Steven Nasteski $1.1 million plus interest over the sale of Orange Lavender Bay. He too was claiming to be a victim of crime—despite having agreed to sell the painting on Gant’s behalf, and despite never having acknowledged that the painting was a fake.

  Since the Crown had withdrawn its compensation claims on behalf of Pridham and Playfoot, the two men had sought their own legal counsel. Pridham’s lawyer, Justin Hannebery—tall, striking and assured—attempted to slash through the legal brambles of this increasingly peculiar case. He didn’t explain why Pridham had stopped his case against Archer, but, as he told the judge, ‘with respect, who cares?’

  ‘If it was stopped because he couldn’t be bothered, if it was stopped because he made a calculated commercial decision, if it was stopped because he woke up one day and went mad and decided to stop it, it doesn’t matter, the point being in this case he suffered a loss, he has not been compensated for it.’

  Gant and Siddique were equally responsible for Pridham’s loss and should pay accordingly, he argued.

  ‘What he was left with was a pretty door, effectively, depending upon some people’s taste, but that’s about as far as it gets. It certainly is not a $2.5 million Brett Whiteley.’

  ‘It’s all a matter of taste,’ the judge wryly replied.

  Nothing remained simple once Justice Croucher applied his legal brain to it. Siddique’s assets, which were being held by the Crown under a restraining order, providing funds of $1.25 million, were not enough to cover the compensation claims of both Pridham and Playfoot, and Gant had submitted an affidavit stating that he didn’t have a cent to his name. The judge pointed out that there was no evidence that Siddique had known Big Blue Lavender Bay would be sold for $2.5 million, nor that he had received a ‘zac’ from either of the sales. So what was he to do? Again, Hannebery advised against overcomplicating the matter.

  ‘Your Honour has a say as to whether the order gets made in the first place but once the order is made, it is a civil debt like any other,’ he said, keeping his frustration in check.

  ‘For the purpose of determining who caused the loss and to whom and how much, that has all been determined beyond reasonable doubt,’ Hannebery repeated. Gant’s financial situation might change—‘in which case, why deny a legitimate victim the amount they have been defrauded?’

  Playfoot’s lawyer, Paul Smallwood, dark-haired with a round, youthful face, also submitted that Gant and Siddique were jointly liable for any compensation order. The judge was not convinced.

  ‘The verdict doesn’t necessarily mean … that Mr Playfoot was tricked, does it?’

  Remy van de Wiel, on behalf of Siddique, also questioned Playfoot’s legitimacy as a ‘victim’ of crime.

  ‘What is he really doing? And who is the real party that is coming here to make this application?’ he cryptically asked.

  Siddique, he said, was in dire financial straits. He had ‘exhausted his property rights in toto’ and he was living ‘on the good graces of his wife and children’. Unlike Gant, who had sought legal aid, Siddique had ‘privately funded the trial’.

  ‘He’s got nothing left,’ van de Wiel told the court. ‘And he is currently being sued by his former solicitor for even more money than was the subject of an agreed set of fees.’

  I had heard that Siddique and George Defteros had parted ways—but I hadn’t realised that the split was quite so acrimonious. His new solicitor, James Dowsley, was a genial-looking fellow, rather different to the hawkish Defteros.

  Borg urged the judge to sentence and make a compensation order.

  The submissions dragged on until well after the court’s normal closing time of 4 p.m., and another hearing was set for 4 November. Wraight wanted to know whether the judge would sentence that day.

  ‘I can’t tell you, can I?’ the judge replied.

  Over the next three weeks, there would be much for him to unravel.

  Postures sagged, eyes rolled and sighs were heard when Justice Croucher announced that he had 40-odd pages of sentencing reasons to read out. I turned to the court reporter next to me. She returned my look of disbelief—we knew what this meant. Gant and Siddique were being thrown another lifeline. Dressed in a checked shirt and jeans, Gant had brought a thick crime novel with him. He needn’t have bothered. Siddique walked in late, looking harried. He needn’t have worried. Yet another extraordinary passage was about to occur in this convoluted tale. The judge would take the exceptional step of putting Gant and Siddique’s sentences on hold until applications for bail were heard and determined by the Court of Appeal. Gant and Siddique would once again be going home. They would remain free men, for the next twenty-eight days at least. It was 4 November 2016, almost six months since they had been found guilty.

  Not wanting to keep the two accused in cruel suspense for the hour and a half that it would take to read out his 40-odd pages, the judge revealed the sentences first. Gant: five years with a non-parole period of two and a half years. Siddique: three years, with ten months to be served immediately, and twenty-six months to be suspended for three years.

  I caught Hannebery’s eye; he gave me a look of incredulity. His confident protestations on Pridham’s behalf had amounted to nothing. The judge had refused his client’s compensation claim. Playfoot’s claim had also been thwarted. The judge knocked both back ‘without prejudice’—the two men were welcome to pursue their money through the civil courts.

  Siddique and Gant had been found guilty of a fraud amounting to $4.5 million—fifteen times more than the $300 000 Ivan and Pamela Liberto had fleeced by selling fakes in the style of Indigenous artist Rover Thomas. Their sentences were not correspondingly greater. In 2007, the Libertos were sentenced to three years by Justice Roland Williams in the County Court of Victoria, the same sentence now being handed to Siddique. Justice Williams had suspended the Libertos’s sentence to two years and three months. Siddique had his sentence suspended to ten months. Justice Williams described the Liberto case as ‘difficult a sentencing exercise as I am likely to get’. He too was presented with ‘heart-rending material’ during the plea hearing. The couple was poor of health and Pamela was suffering depression. They
too had their assets destroyed, their home seized, late in life. They demonstrated no remorse and maintained their innocence. They gambled and lost. In his sentencing judgement, Justice Williams wrote: ‘I consider the community would be aghast and view our criminal justice system as failing them if people can commit such crimes, deny them, contest them, get found guilty and then walk away from court.’

  Justice Croucher had a different predicament on his hands. He was aghast at the jury’s failure to follow his directions. And so today he was in a bind. The jury had delivered a guilty verdict, making him duty-bound to sentence the two accused. And so he played a game of doublespeak—on the one hand outlining the seriousness of the offences, describing them as ‘cynical’ and ‘calculated’ instances of fraud or attempted fraud, on the other insisting that there was a powerful argument that the guilty verdicts were unsafe.

  He must have been swotting up on his art critics. He quoted one of Gant’s favourites, the typically acerbic Robert Hughes, selecting a line that surpassed the critic’s usual rancour: ‘Art prices are largely about voyeurism and toxic snobbery. They are what you see when you peer up the anus of culture.’

  The anus of culture? Did I hear correctly? The words slapped unceremoniously into the grandeur of courtroom one, the sublime Banco Court. Why choose such a venomous phrase? The judge surmised that the jury may well have accepted that similar thoughts had motivated Gant and Siddique. To me the words seemed equally directed at those who had been embroiled in this case, who had bought or been involved in selling the suspect Whiteleys. They seemed to bubble over with the judge’s apparent scepticism about the art world and his deepening displeasure with the prosecution.

  ‘On the prosecution case the accused apparently were sufficiently impudent to think the art world gullible or greedy enough, perhaps both, to fall for this ruse three times and heavily despite what was thought to be Mr Whiteley’s unique and unmistakable gift,’ the judge said.

  He confessed that he had rejected ‘by a hair’s breadth’ the defence’s submission that there was no case to answer. And yet, having done so, here he was, arguing that the jury had drawn the wrong conclusion. ‘Having sat through the trial and having reflected on all of the evidence closely, I still cannot see how it is possible rationally to exclude the very hypothesis that the paintings existed in 1988,’ he said.

  Was it possible that the testimonies of Rosemary Milburn and Jeremy James had simply not convinced the jury? Just as they hadn’t convinced Magistrate Suzanne Cameron at the committal, who had remarked that neither Milburn nor James were independent of Gant?

  It would have been prudent of me to defer to the judge’s legal wisdom; instead I kept resisting his words. Perhaps reading my mind, Gant’s wife, who was in court with his three daughters, glared at me. Even though she and Gant had apparently parted company, she seemed fiercely defensive of him.

  The judge gave the two accused good prospects of rehabilitation. Gant, he said, ‘had made a significant contribution to the cultural life of Australia through his support of emerging artists, and his knowledge of and passion for Australian art’. In the back pews of the court, Andrew Crawford sat listening, his face turning red. The art dealer next to him shook his head. The two walked out before the end of the proceedings.

  Siddique had especially impressed the judge. He went so far as to declare that Siddique—a man ‘of unblemished character’, suicidal at the thought of going to jail—should not have been found guilty of the offences charged. ‘I think a good deal of mercy is due to Mr Siddique,’ the judge said. ‘He looks to me to be a broken man.’

  I had to question my own capacity for compassion. I knew that this ‘broken’ man was still doing the odd job and had been on the phone to art dealers spruiking for work. During the trial he had lashed out at one of the court reporters and declared the media a bunch of ‘crooks’.

  The judge acknowledged that staying the sentence was a rare and exceptional step. ‘Were it otherwise, there might be a flood of unmeritorious applications following sentencing by trial judges,’ he said.

  He illustrated just how rare it was, citing one of the most infamous cases in Australia’s legal history, that of Lindy Chamberlain, who in October 1982 was convicted of murdering her 9-week-old daughter Azaria. She maintained that a dingo had snatched her baby from the family’s campsite at Uluru, and was eventually proved right. When Chamberlain asked to be released from jail pending an appeal she was refused by the High Court.

  Justice Croucher went ahead and did the exceptional, compelled by his concerns about the safety of the verdicts, and Siddique’s mental health. ‘In my view, the interests of justice demand that I stay this sentence,’ he declared, giving Gant and Siddique the clemency denied Lindy Chamberlain.

  At 6.15 p.m. on Friday 9 December 2016, I received a text from John Ribbands. It was unusual for him to text me directly. He had good news about his client.

  ‘Hi Gabriella, next Friday is the bail application. The Crown agree that the appeal has reasonable prospects of success and do not oppose bail.’

  I read it several times, unable to process the words. The Crown did not oppose bail? It believed the appeal had reasonable prospects of success? If Ribbands was right, this was a complete turnaround. At the sentencing Borg had indicated that the Crown would oppose bail. But Borg was no longer on the case. She had not been briefed for the appeal, and her push to have Gyorffy run the appeal for the prosecution had been ignored. I rang her to share the news.

  ‘What?’ A shocked silence followed.

  ‘What’s going on?’ I asked.

  ‘Let me find out and I’ll get back to you.’

  Two hours later Borg texted back. She had spent her Friday evening on the phone, making calls and sending texts to find out what her colleagues in the Office of Public Prosecutions had planned. She was told that the decision not to run a ‘miniapplication’ during the bail hearing but to leave the substantive argument for the conviction appeal was a tactical one. The Crown would not oppose bail, but this was not out of any acquiescence to the defence.

  ‘I am now switching my phone off as I want to return to my weekend,’ Borg wrote.

  I followed her lead and tried to do the same.

  On 16 December 2016, the Court of Appeal’s Justice Weinberg and Justice Priest extended Gant and Siddique’s bail until their appeal could be heard. Gant would report to the Fitzroy Police Station once a week, Siddique to the Doncaster Police Station. This condition did not please Siddique, but the court stood firm.

  ‘It’s not particularly onerous to report to a police station once a week. We do have a jury verdict,’ Justice Weinberg reminded van de Wiel.

  The hearing was over in half an hour. Weinberg and Priest did not mess around. After the court rose, Rob Stary turned to Gant and smiled. I heard the words, ‘I told you’. Siddique immediately turned to look at his son who was sitting in the very back row of the court. The ever-loyal son was inscrutable. Siddique, seemingly stunned, just stared at him.

  And so the case of Gant and Siddique crawled on. An appeal might not be heard for another six months. With time on my hands I had the chance to tie up some loose ends. The case had prompted a hypervigilance that at times bordered on paranoia, leading to the legitimacy of other Whiteley works being questioned, among them the so-called brown painting, View from the Sitting Room Window, Lavender Bay, that had been at Siddique’s Collingwood studio for a couple of years, and that Jud Wimhurst said was always getting in the way; the painting that the prosecution had alleged Siddique had used as a template to create the three suspect works. Hadn’t Wendy questioned the artwork when she’d first seen it? It wasn’t one of Whiteley’s best and it had a clunky, pieced-together quality, as though the artist was listlessly picking from his bag of tricks. One of the theories circulating during the trial was that this painting too might be a fake, sold at auction to give it the air of authenticity, and then bought back and used as a blueprint to create more of its kind. Suspicions were
breeding like bugs in a Petri dish.

  It didn’t help that during the trial it was revealed that the ‘brown’ painting had been at the Centre for Cultural Materials Conservation—van de Wiel had asked Vanessa Kowalski why the centre hadn’t analysed the painting to check whether Whiteley did indeed use underdrawings in his Lavender Bay works. But this raised the question—why was the painting at CCMC? I rang Robyn Sloggett to find out more. Her response was unilluminating. The painting had not been assessed and she could not comment on it in any rigorous way. Why, then, had it been at the centre? ‘I don’t know,’ she answered. It was hardly a satisfying reply. Were there concerns about its legitimacy? She wouldn’t say.

  Journalist Sharon Verghis had written about the ‘brown’ painting in The Sydney Morning Herald in April 2003 when it came up for auction at Lawson-Menzies. She named Ian Robinson, a Hong Kong–based chartered accountant, as the man who had commissioned the painting directly from Whiteley in 1991. In fact, it was Robinson’s friend, Sydney artist and gallery owner Peter Hickey, who negotiated the commission. Perhaps Hickey could enlighten me. He was easy enough to find. I emailed him one morning and by the afternoon we were talking. He was chatty and down-to-earth. Now aged seventy-two, Hickey had once owned the Mosman Art Gallery. He had sold a lot of Whiteley’s work, mainly dealing through Christian Quintas. Ian Robinson, one of his clients, approached Hickey and asked him to speak to Whiteley on his behalf.

  ‘He asked if I could get a harbour painting, and Brett hadn’t done any bay paintings at that time,’ Hickey said. ‘He was fighting with Wendy at the time through the lawyers, so he said he would do it for cash. I can say all this now, because I didn’t like Wendy all that much. It was $110 000 cash, of which I didn’t take any because he was a mate. In this instance Brett said he would do it. He did it on a door; I remember we had it framed and covered with perspex.’