Whiteley on Trial

by Gabriella Coslovich

  Whiteley had been reticent about painting another Lavender Bay work, Hickey said, but the need for money propelled him.

  ‘He basically said, I don’t do harbours any more, but I need the cash and he said this cash is going straight to the lawyers, and it was terribly sad. I must have got him at the right moment, not that I was trying to.’

  Although the painting had been criticised for its dark palette and tired composition, Hickey loved it. ‘I have always been a fan of Brett’s, the guy is a genius, no question, even Olsen is jealous of him,’ he said.

  The photograph of Whiteley standing in front of the ‘brown’ painting during its production had been taken by Hickey himself—this was the ‘sad’ photo that helped persuade Wendy Whiteley that the painting was legitimate.

  Hickey had not stayed in touch with Ian Robinson. The two had had a falling out. I tracked Robinson down in Hong Kong and the receptionist put me through to his office. He was happy to talk and confirmed that he had indeed commissioned the painting through Hickey back in 1991 and sold it in 1998 when he was moving from his large house in Mosman to a Sydney apartment. ‘I regret that I sold it,’ he told me. ‘If I ever get rich I would like to buy it back, actually.’

  The painting sold for $330 000, including commissions—more than three times what Robinson had originally paid for it. Of course, the painting was worth a lot more now—as we know, Gant paid $1.65 million for it in 2007.

  ‘I had bought quite a number of paintings via Peter Hickey and I said to him one day, “Could you ask Brett Whiteley if I could commission a painting?” And he said, “He never takes commissions.” And I said, “Why don’t you ask him, because you’ll never know unless you ask.” So he went along and he asked him and as a result of that he came back to me and said, “He said yes, he needs the money to pay for his divorce” … and we agreed on a price, which was a reasonable price.’

  Robinson wanted a painting of Sydney Harbour—he was expecting it to be blue, instead he got brown. Mulberry was the more poetic way to describe it.

  ‘I didn’t realise he was in a dark mood!’ Robinson told me. ‘I must say, my first reaction was disappointment when I got it.’ But the painting grew on him. ‘It wasn’t for me to argue, he is the artist.’

  It would be Whiteley’s last painting of Lavender Bay. Eight months later, the artist was dead.

  So what did this show? That Whiteley had taken a commission in 1991 and returned to a theme that he had long let go: Lavender Bay. It showed that he might rehash old motifs when desperate for money. It showed the difficulty of deciding whether a painting was authentic. Wendy herself, as Gant pointed out again and again, had questioned this painting and continued to do so until she was shown the photograph of her ex-husband in front of it. But if you were wanting to create Whiteley-style Lavender Bay fakes, wouldn’t this be the perfect template? The painting to which you could point and say, see, Whiteley made mediocre works and took unofficial commissions, and Wendy didn’t always know what he did or what she was talking about.

  The appeal was set for 27 April 2017, months earlier than expected. The case continued to be the talk of the two worlds enmeshed in it—the law and the arts. Would the Court of Appeal take the momentous step of overturning a jury verdict? I kept ruminating over the details of the case, unable to accept that the jury decision would be quashed. There were twenty-five witnesses in this case—how could the testimony of two override the rest? Wasn’t it for the jury to decide?

  I became obsessed with legal precedents, reading them in the same way that one might consult an oracle, searching for clues that might foretell the end of this long and drawn-out case. Borg pointed me to The Queen v Baden-Clay, in which the High Court in August 2016 reinstated Gerard Robert Baden-Clay’s conviction for murder. In April 2012, a jury found him guilty of murdering his wife, but Baden-Clay appealed the conviction on the ground that it was ‘unreasonable’. In December 2015, the Court of Appeal of the Supreme Court of Queensland reduced the conviction to manslaughter. This too had been a circumstantial case, and in returning the murder conviction the High Court emphasised that the evidence in a circumstantial case must not be looked at ‘in a piecemeal fashion, at trial or on appeal’. The court stressed that it was a ‘serious step’ to overturn a jury verdict, one ‘not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial’. I underlined these words.

  I noted in the High Court’s judgement that when Baden-Clay was asked by the woman he was having an affair with what she should do if the police asked to speak to her, he had said, ‘tell the truth’.

  At 5 p.m. on the day before the appeal, a message from Ribbands landed in my voicemail: ‘A bit of an update on the Siddique appeal if you’d like to give me a ring.’

  I called back, expecting him to tell me what I already knew—that the appeal was listed for the next day. He had much bigger news.

  ‘As of this afternoon, the Crown has conceded the appeal,’ he said.

  I was stunned. Was he telling me Gant and Siddique would be acquitted without argument? Who told him that the Crown had conceded? Where did he get this information?

  From Daniel Gurvich, he said, who was running the appeal for the Office of Public Prosecutions.

  What? Ribbands’s words fell like water on stone, I could not take them in.

  ‘I would think it’s fairly assured that the appeal will be upheld and we will be acquitted,’ he told me.

  I arrived early at the Court of Appeal the next morning and waited tensely in the foyer of the Green Court, so named for its green carpet and chairs. Before long Ribbands’s news was confirmed. At 9.49 a.m. Susan Borg texted me. She had just been informed by the Office of Public Prosecutions that the Crown would concede the appeal. I was staggered. The appeal was due to start in forty minutes and the OPP hadn’t even had the courtesy to tell her until now? After all this time, effort and money they weren’t even going to defend her work? What did this mean—that the case should never have been brought to trial? That the case had always been fatally flawed, just as the defence had claimed from the start?

  ‘I’m driving so can’t talk. I’m okay. I’ll explain later,’ Borg wrote.

  Trevor Wraight and his junior counsel Fiona Todd walked coolly into the foyer. I couldn’t help myself from saying, ‘So, Pridham will be pleased to hear his painting is the real thing.’

  ‘Well, no, it’s not that easy. This doesn’t prove that the paintings are original,’ Wraight answered evenly. He was a decent sort. His client arrived soon after, atypically early and looking extremely dapper in a striped blue shirt and bright red tie.

  ‘Have you heard the news?’ I asked Gant.

  ‘Nobody tells me anything,’ he grumbled, acting like a picked-on schoolboy.

  Siddique had also dressed up, crisp in a black suit and white shirt, accompanied, as usual, by his son. Gant’s three daughters were also here. There was an air of tense hope around the accused and their barristers, and the sounds of nervous laughter.

  The paintings, being hauled out for yet another court appearance, were stuck in traffic and delaying the appeal’s scheduled 10.30 a.m. start. It was almost 11 a.m. when they arrived. Justin Stefanec and a fellow policeman struggled to manoeuvre the cumbersome works through the doorways and aisles of the court. The paintings came to rest along a side wall and there they forlornly awaited judgement. The court publicist sitting next to me was very taken by the blue one—‘That’s beautiful,’ she said. Van de Wiel went in for one last dig: ‘I’m just looking at the way birds can fly,’ he scoffed, referencing Sloggett’s comment about the flight paths of birds that had so infuriated the trial judge.

  Just after 11 a.m. the tipstaff’s knock announced that it was time: Justices Weinberg, Priest and McLeish took their seats at the bench. Daniel Gurvich, QC, senior counsel for the Office of Public Prosecutions, stood up and announced that the Crown conceded on all grounds. I co
uld hardly bear to listen as Gurvich regurgitated the arguments that had once belonged to the defence. It was as though the Crown had swapped sides. The evidence of Ms Milburn and Mr James had critically wounded the Crown’s case, Gurvich told the court, and that evidence was unchallenged.

  ‘There is here the significant possibility that innocent men have been convicted,’ he said.

  Justice Weinberg, a sharp looking man with a fulsome head of stubbornly straight grey hair, sternly asked why the court was only notified of the decision to concede at 4.45 p.m. the day before. The decision was made after Justice Croucher submitted his report to the Court of Appeal, Gurvich said. But the content of the report would not have come as a surprise, Justice Weinberg replied. Gurvich agreed that it had not; however, the strength of the language and opinion had.

  So the Crown had buckled under the force of Justice Croucher’s words. Neither Wraight nor van de Wiel had anything to add. Gurvich had done their work.

  After a 5-minute adjournment, the appeal judges returned to the bench and Justice Weinberg delivered their ruling. The Crown’s concession was welcome, but it was of ‘considerable regret’ that the Court had been notified so late. He stressed that the Crown’s concession was, of course, not binding on this Court, but the judges had all independently arrived at the same provisional view—the convictions could not stand.

  ‘It is sometimes said that juries “always get it right”. Sadly, in this particular instance, that seems not to have been so.’ The case would go down in history as a ‘rare and almost unique instance of the system having failed’.

  In detailed reasons to come, the judges might comment on the decision to pursue the charges and the way the prosecution was conducted. This hinted at a lambasting for the prosecution. Were the appeal judges suggesting that the charges should never have been brought? They did not even look at the paintings moping in court.

  In less than half an hour the Court of Appeal had dispensed with a case that had dragged on for more than two years, involved a 7-day committal, a 5-week trial, many more hearings and mentions, and eaten up millions of dollars, private and public. I watched Gant and Siddique as Justice Weinberg announced their acquittal. Siddique sat bolt upright, his face frozen. Gant too sat rock still, expressionless. After the court rose and the judges departed, the defence barristers and their clients dissolved into a jubilant pack of back-patting and smiles. Gant’s daughter Chrissy was crying again, this time with relief. As the group left court one of Gant’s other daughters relayed the news to someone at the other end of her mobile phone, her mother I imagined.

  ‘It’s all over,’ she said. ‘Free man.’

  I sat in the court foyer, numb, and watched them all leave. I kept sitting and watched as Stefanec and his colleague grappled again with the massive paintings, removing them from the courtroom. They would go back into police storage, Stefanec told me, and then on to their owners Andrew Pridham and Steven Drake. I searched Stefanec’s face for a reaction. He seemed resigned.

  ‘I still see it as a win,’ he said. ‘I won my trial.’ His colleague added: ‘There is a big difference between the truth and the legal system.’

  ‘Good God! Good God! It’s just extraordinary,’ Wendy Whiteley said when I phoned her the news straight after the acquittal. I had retreated to The Essoign Club at the Victorian Bar, trying to process the ruling over coffee with Tom Gyorffy. Wendy was also finding it tough.

  ‘I don’t understand it—what do they mean that it was unsafe? That the jury was wrong?’

  I explained how the evidence of Rosemary Milburn and Jeremy James had shattered the prosecution’s case.

  ‘What about the photographs? I think it’s scandalous. It’s bleedingly obvious what’s going on!’

  But in the eyes of the law, it could not be proved beyond reasonable doubt. Four judges had now deemed it so. Gant had been right. I recalled his words to me: ‘I’m confident about winning an appeal; if an appeal is based on the law, we should easily win.’ And they had.

  That day The Age asked me to comment on the case and I expressed my shock at the acquittal. To the lay person, the evidence had seemed strong, I said, but the Crown case had clearly not stood up to legal scrutiny. Everything about the case had been eye-opening. My comments did not please Ribbands. He rang me that afternoon, furious.

  ‘I don’t know how you could be shocked!’ he bellowed. ‘Surely you didn’t think the jury could find them guilty on the evidence?’ I had never heard him so animated. Passions were flaring—mine included. I argued back. I was entitled to an opinion, wasn’t I? And I was shocked—I was shocked that the jury had convicted after such strong directions from Justice Croucher, and I was equally shocked now that a court of appeal had overturned a jury verdict. As I understood the law, that was a pretty big hurdle.

  ‘This is an extraordinary step … and the reason it happened was that the verdict was patently wrong,’ Ribbands snapped. ‘Our appeal was based on the facts, and these facts were so blindingly obvious. There are a lot of questions that might be asked about what the hell was going on in 2007 at Easey Street, but copying paintings is not a crime.’

  He predicted that this case, just like that of Lindy Chamberlain, would ‘polarise elements of society’. We were already proving that, heatedly debating the merits of the defence and Crown cases. As we clashed I silently willed myself to calm down—this was ridiculous, I should not be taking sides, and it was mad of me to be arguing with a barrister. I should be trying to assess the case as coolly as the law had. And yet every time I thought it through, none of it added up. My ‘blindingly obvious’ was not Ribbands’s, but I had to accept that the law backed his view, not mine. Eventually we both settled down and Ribbands reverted to his usual charming self.

  ‘I’ll be the first to buy your book,’ he said, as we bid each other goodbye.

  Just what had Justice Croucher written to the Court of Appeal that caused the Office of Public Prosecutions to quiver into submission? Nothing, actually, that he hadn’t expressed before, and it centred of course on the evidence of Milburn and James. The prosecution’s argument that the paintings could not have been created in 1988 was ‘completely undermined’ by these two witnesses and the supporting documents of the catalogue and invoice book. The prosecution’s fatal error was to let their evidence go unchallenged.

  ‘I did not understand at trial, and I do not understand now, how the prosecution concession that they were honest witnesses squares with the assertions that they were somehow mistaken and that the documents were doctored,’ the judge wrote.

  James was either telling the truth, or he was not. Milburn, too, was either telling the truth, or not.

  The judge went on to list the other evidence that supported the defence’s version of events. By now, I knew the roll by heart: Guy Morel’s evidence that the catalogue had been created before November 1989; Jonathan Hartley’s ‘unchallenged evidence’ that he had seen the blue painting beside the stairs in Siddique’s studio on many occasions, perhaps in 2005 or 2006, or even 2007; the invoice Siddique gave Anita Archer when she started asking questions about the legitimacy of the blue painting, which recorded, on 14 July 2006, an order from Gant to have a ‘Brett Whiteley Lavender Bay—Blue’, with an approximate size of ‘1600 × 2500’, cleaned and varnished.

  I stubbornly continued to question the strength of this evidence. Morel had acknowledged in court that the catalogue’s paper had not been forensically dated and that he simply drew the document’s age from the date printed inside the catalogue itself. Hartley had admitted to ‘rising damp’—a faulty memory—and he was unclear about the year he saw the blue painting in Siddique’s studio. Was he even sure that the painting he saw beside the stairs was the same blue painting that was presented to the court? And why did two invoices exist for the supposed cleaning of this blue painting? One from 2006, which the judge referred to here, and the invoice Archer cited in court, from 10 October 2007, that she said Siddique had given her when she started aski
ng questions. And what about Gant’s conflicting stories about the movement of this blue painting? Wasn’t it supposed to have been at Robert Le Tet’s office until 2007? Or wrapped up in storage at Questco? So how could Hartley have seen it at Siddique’s in 2005 or 2006? What exactly had the dentist seen? These anomalies seemed to have no bearing on the judge’s view.

  ‘None of this is to ignore the other evidence in the trial supporting the prosecution case,’ Justice Croucher went on.

  He perfunctorily listed it. Morel’s photographs, which suggested that paintings ‘at least very similar’ to those brought before the court were being created at Siddique’s studio from mid-2007. Evidence of a ‘potentially significant link’ between Gant and Siddique as shown by the ‘brown’ painting positioned close to the paintings that were being produced in the studio. The undisputed evidence that the ‘brown’ painting had been bought by Gant, in the presence of Siddique, in Sydney in March 2007. The evidence of the timing of the ordering of the door frames, the creation of the paintings in the studio, the ordering of the frames and the sale of the paintings.

  The evidence of Robyn Sloggett and Vanessa Kowalski was noted, but dismissed as ‘little more than a joint opinion’ that the blue and orange paintings were not by Whiteley, ‘rather than a positive assertion that they were fakes created recently’. Wendy Whiteley’s evidence did not even rate a mention. Nor did the infra-red imagery showing that the underdrawings present on the paintings shown in Morel’s photographs appeared to match the underdrawings on the paintings that were presented in court.

  The judge concluded that none of the evidence pointing towards guilt could exclude the reasonable possibility that the paintings existed in 1988. In fact, he went so far as to say that Milburn’s and James’s evidence ‘could have supported a good prosecution case that the paintings were created in 1988, and not in Mr Siddique’s studio from mid-2007, but that copies might have been made in the studio at that time’. Having suggested this alternative hypothesis, the judge then quashed it.