‘Yet it must be said of such a case that it too must fail because of the evidence supporting the reasonable hypothesis that the paintings were created from scratch from mid-2007. But that only serves to prove the point that, sometimes, a circumstantial case can only fall between two stools. This is such a case.’
Tom Gyorffy was living up to the image of his revolutionary great-great-grand uncle. Privately, he was furious about the way that Borg had been treated, telling me that she had been devastated by the Crown’s eleventh-hour concession. I knew that the Crown’s reversal had been hard on her after all the time she had invested in the case, working 16-hour days for ten weeks straight, at the expense of her family. The decision to concede had been made by the Office of Public Prosecutions’ acting director, Gavin Silbert, while director John Champion was in Sydney at a conference.
‘I was appalled that she was thrown under the bus by not being consulted,’ Gyorffy told me.
He was troubled by the prospect of the Court of Appeal criticising her handling of the case without her being given the chance to explain why she had dealt with James and Milburn in the way she had. He advised her on various steps she could take and suggested that she ask for the opportunity to make a submission to the Court of Appeal before it released its full judgement.
A few days after speaking with Borg, he was contacted by The Australian’s arts writer Michaela Boland, who wanted him to comment on the case. Gyorffy said he would think about it. The night before Boland’s deadline, Gyorffy learnt that there were no plans in place that would allow Borg to put her case to the Court of Appeal. He decided to speak out and give her a voice when no-one else would, driven primarily by his concern about her welfare and the need to set the record straight. He was deeply disappointed by the Crown’s last-minute concession and its failure to seek the views of the very person who knew most about the case—Borg.
She had done the best she could with the evidence and resources at her disposal, he told Boland. After the committal he had ordered forensic testing of Gant’s consignment book, suspecting it was riddled with inconsistencies, and had asked for further background checks on Jeremy James. The police had not followed up on these requests.
‘So the prosecutor is left without the forensic evidence,’ he told The Australian.
‘We will never know if it would have made a difference to the outcome. The court may still have been of the view that the evidence did not support the verdicts. We do know that the prosecution, having surrendered without firing a shot, gave the Court of Appeal a green light to confirm its provisional opinion. The case fizzled out like a wet firecracker.’
This case, if any, was one where it was critical to see and hear the witnesses, as the jury had done, Gyorffy had told me before the appeal, and continued to tell me in the days after the appeal, as I tried to get my head around the ruling.
‘This is a circumstantial case and all the evidence needs to be looked at and this is very much a case of concentrating on what’s seen as a flaw in the evidence rather than looking at what the remaining evidence would be.’
He would have emphasised these points to the appeal judges.
‘It still could have been the same outcome, but I would have presented it in a way where they would at least have had to think about it a lot harder. You have to go in there and argue your backside off if you are on the wrong side of that provisional view.’
For Wraight, though, the case was as simple as the prosecution failing to prove beyond reasonable doubt that a crime had been committed. It didn’t require any special treatment or revision of the law. ‘Take the word “art” out of it, it’s just fraud,’ he told me when I visited him at his chambers a couple of weeks after the acquittal.
‘If the body of art experts say these paintings are not Whiteleys, and therefore that’s a travesty, then go and knock on the director’s door down at the OPP and say “do your job”.’
I checked whether the comment was on the record.
‘Of course it’s on the record because that’s what the Court of Appeal said. This investigation and the prosecution case wasn’t up to scratch.’
I noticed a copy of the Matt Golding cartoon that had appeared in The Age the day after the acquittal lying on a sideboard in his office: the caption ‘acquitted’ appeared over caricatures of Gant and Siddique, and the caption ‘sentenced to hang’ over an image of the orange painting.
But I kept struggling with concepts of law and the results of this case. What did ‘beyond reasonable doubt’ even mean? Gyorffy pointed me to the Judicial College Manual, where I found a series of conflicting statements, exercises in semantics rather than clear directions: beyond reasonable doubt was a composite expression, not intended to be broken into its component parts or analysed; it could not be expressed mathematically; it was a subjective test and the jury itself had to determine what it meant. I noted, though, that if jurors were unsure where the truth lay, they had to acquit.
On 8 May 2017, I hauled myself back to the Court of Appeal. It took all my effort. The appeal judges were handing down their full judgement. A handful of journalists had turned up for this final instalment. I was surprised to see that Siddique and his son were also there. Gant was not. Neither of them had been obliged to turn up, but I imagined Siddique was eager to see just how far the appeal judges would go—would they castigate the prosecution for having brought the case at all? And what would they say about the paintings? Or perhaps he simply wanted to pay homage to the men who had set him free. For the first time I felt something akin to pity for him. Did I read humility in his bearing? Perhaps it was just seeing him there, persisting until the very end, this man who had hidden from his first court mention. Maybe Justice Croucher had been right. Maybe he was in some way broken.
I went home and read the judgement, highlighter pen at the ready. I braced myself as I plunged back into a world of exacting rules and logic, of precedents selectively plucked like verses from a holy book.
The judges quoted from the High Court’s ruling on The Queen v Baden-Clay. I knew the passages well: their emphasis on the role of the jury and the gravity of reversing a jury’s verdict. But it was not these passages that would ultimately inform their decision. Others were quoted, stating that ‘when the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’.
So what was the reasonable hypothesis in this case? The jury determined that the only reasonable hypothesis was guilt. The appeal judges, like the trial judge, found the jury’s logic lacking. The inference of guilt was not the only inference open to them, and the reason for this was the testimonies of Milburn and James. While a jury was not obliged to accept even the unchallenged evidence of a witness, in this case ‘for them to have done so required discounting not just the oral testimony, but documentary evidence that unequivocally and powerfully supported that testimony’.
The Crown had ‘nailed its colours to the mast’ by choosing to present this case ‘on a narrow and quite specific basis’, the judges stated.
‘Once the defence was able to point to the reasonable possibility that the paintings offered for sale by Gant had come into existence at any time prior to 2007, that was effectively the end of the prosecution case,’ they wrote.
The expert evidence of Sloggett and Kowalski was reduced not just to opinion, but to something that ‘fell well short of an opinion that Blue Lavender Bay or Orange Lavender Bay were not painted by Whiteley’.
And yet, the judges did not conclude that the prosecution ought not to have brought the case to court. That at least would have come as some relief to Borg. Unsurprisingly, her failure to challenge Milburn and James was criticised.
‘We have not been privy to the reasons which led the prosecutor to approach their evidence as she did. Nor can we guess at them.’ The jury, they said, was effectively left to
speculate about the importance of these two crucial witnesses.
Their judgement left unanswered the biggest question of all. They made no finding on the authenticity of the paintings: ‘Nor are we equipped to do so.’
So what were we left with? Two massive Whiteley-like paintings that the court could not say were fake or not, and one painting still missing. The undisputed fact that Siddique had been making copies of these huge paintings in his studio from 2007 to 2009 for reasons known only to him—copies that had never again been sighted. Copies so similar that they appeared to share the same underdrawings as the paintings presented to the court. And some paintings that Milburn and James swore they had seen in 1988 and 1989. The truth remained as nebulous as Lavender Bay in the rain.
While the Court of Appeal made no finding on the authenticity of the paintings, beyond its rarefied walls the judgement was swift and harsh. Contrary to John Playfoot’s evidence to the Supreme Court that auctioneers Chris Deutscher and Geoffrey Smith had raved about Orange Lavender Bay, neither man had any intention of ever selling the work, or its courtly companion Big Blue Lavender Bay.
Smith did not believe the paintings were created by Brett Whiteley and he denied ever telling Playfoot that the orange painting was ‘fantastic’ and that it could not be a fake because it showed evidence of ‘pentimenti’.
The criminal courts, he said, seemed ‘ill-equipped’ to deal with these sorts of matters. ‘However, there has to be a first case, and perhaps this can be considered the trailblazing case. Many lessons can be learnt from this case that can inform how cases of a similar nature are prepared and presented in the future.’
Chris Deutscher had a long laugh when asked whether he would accept the blue or orange paintings for sale. ‘The art world is in absolute shock over the decision. Everyone is very surprised and I think the whole art world is convinced that the works are fake.’
He too wondered why neither he nor his business partner Damian Hackett had been called before the court to verify the comments Playfoot had attributed to them.
‘I think it’s very odd that we are quoted and that goes on the record without being cross-examined. In my opinion the works are not authentic and most of the art world is of the same view. Clearly our legal system is ill-equipped and finds it challenging to deal with art fakes and forgeries.’
Art dealer Stuart Purves was unambiguous: ‘the works concerned in this case are forgeries’.
‘I worked with Brett Whiteley as a major gallery representative for his professional career as a painter, sculptor, printmaker and more for over a quarter of a century. We were busy, we were close and I learnt his style. Over such a period of time you learn to understand and recognise the hand of the artist, like a mother recognises her child. It’s both factual and instinctive.
‘In this case the sad part is that the law has not been able to clarify what is generally understood in the art world, or assign blame to those who may be at fault. In my view this case was not handled with the intensity that it actually required; imagine if it was counterfeit money instead of oil paintings. The public’s right of protection has not been upheld; at large we are let down.’
Nor would the paintings appear in the Whiteley catalogue raisonné being prepared by Kathie Sutherland.
‘I need to be convinced,’ Sutherland said. ‘On stylistic grounds I was concerned about these works when they first came to my attention. I can accept that Whiteley had his off days and that around 1988 there are some paintings that in my opinion are of lesser quality.’
But the provenance associated with these works—the catalogue and consignment book that the appeal judges had termed powerful and unequivocal—was not persuasive enough for Sutherland.
‘Provenance is always critical and a watertight provenance for these three works is imperative to prove authenticity. In every instance, unless I have a cast-iron provenance the work will not be included. For these large paintings I would also have expected to have found some reference in Whiteley’s notebooks of the period as he usually jotted down sketches and/or plans for exhibition of major works.’
I reminded her that Gant had told the court that he had owned the paintings since 1988.
‘I would have thought that if Peter Gant held them in 1988 they would have appeared in an exhibition catalogue. In 1988, the Australian art market was at an all-time peak so surely he would have sold them at that time when buying was at fever pitch.’
And what of the respective owners of the blue and orange paintings, Andrew Pridham and Steven Drake? What were their plans for the works?
Pridham eventually replied to my emails.
‘Sorry I have not responded to you or anyone on this,’ he wrote. ‘I have already expended too much time and energy on trying to take a stand for the integrity of the Australian art market and its artists. I am extremely busy with work and other fruitful endeavours and as such do not wish to make any comment or spend any more time or brain space on this.’
It seemed fairly clear that Big Blue Lavender Bay would not be given pride of place in his Mosman home.
Drake, on the other hand, was holding tight to his belief that Orange Lavender Bay was the real thing. Gant had been ‘adamant’ that it was real, ‘from day one’, Drake told me. But Wendy Whiteley would never concede: ‘That’s the problem we have got,’ he said. ‘She just doesn’t like them. She’s been caught out before,’ he said, referring, of course, to the ‘brown’ painting. He was considering having the orange painting tested overseas, where the technology was more ‘sophisticated’.
So would he hang the work again in his home?
‘I’ll hang it somewhere—I’m not going to put it behind a closet. I do like the painting, believe it or not. It’s a beautiful picture; all his Lavender Bay series are magnificent. It was one of the nicest series of all.’
From: elmyr de hory 01/05/2017
To: Gabriella Coslovich
Before you go to print I think you should have a one-to-one with both Milburn and James.
I know James has talked about his evidence previously.
Elmyr.
From: Gabriella Coslovich 01/05/2017
To: elmyr de hory
Not a bad idea.
What about you, Elmyr? Now that it’s all in the clear, could we meet? Anonymity assured.
He never replied.
What would Jeremy James say now? The same chirpy voice greeted me when I called him at work a fortnight after the acquittal. It was a quiet day at the car dealership and James was in a talkative mood. He stood by his previous comments about Gant and Siddique’s guilt and said he was ‘shocked’ that the Crown conceded the appeal.
‘I can’t remember the woman’s name’—Susan Borg, I reminded him—‘she was a lovely woman, but she didn’t pursue anything, not that there was anything to pursue.’
She hadn’t pressed any ‘weak points’, he said, such as his statement that the paintings in court were the same works he’d seen in 1989.
‘I wanted to qualify that statement, and I was never given the chance to qualify that statement, and the qualifications would have been, these appear to be the same or similar images that I saw thirty years ago, but what would I know? I would not know.
‘There was really no cross-examination which was really strange to me. When I left the court I was having coffee with my youngest son and we canvassed that very thing. I said to my son, “I was expecting to be jolted and accused of not possibly telling the truth, and I was not, darling.”’
What about the running proof—how did he find it even though he said at the committal that all records had been destroyed and that the police would find nothing if they went searching? He told me a long story about bale bags and the Hospitals and Charities Commission. In the days before Visy Board became Australia’s chief recycling company, paper offcuts and old catalogues would be placed in bale bags which were collected and recycled by the commission for a fee, he said.
‘If it was a document which perso
nally had some relevance … I would keep that sort of stuff before we threw it out.’
But hadn’t James said at the committal that not even art catalogues of ‘general importance’ would be spared a pulping?
Christian Quintas, who had been Brett Whiteley’s studio manager in the final years of the artist’s life, was also long dead, making it impossible to verify with him the consignment note listing the three ‘Whiteley’ paintings that Milburn swore arrived at Gant’s gallery on 28 June 1988. The appeal judges had described this consignment book as unequivocal and powerful documentary evidence supporting Milburn’s testimony—a description I found difficult to digest. Milburn’s evidence had seemed self-contradictory. Was the consignment book an ‘in book’ or an ‘out book’? At the committal she had vacillated, before deciding it was entirely an ‘in book’. During the trial it had been unclear whether she had actually seen the paintings. How much could she see if they were in a crate and in bubble wrap? And when shown images of the three paintings by the police in 2014, Milburn could not say one way or another whether they were the paintings that arrived at Gant’s gallery in June 1988.
There were other dealers listed in the consignment book who were alive—Stuart Purves and David Cook. I wanted to check whether their recollections matched the records in Gant’s consignment book. I emailed Purves first, as I knew that his business, Australian Galleries, kept meticulous records. There was a reference in Gant’s consignment book to ‘Australian Galleries’ on ‘9/10/87’, listing a work by the artist Tim Storrier, titled The Red Saddle, from 1982, with the dimensions of 149 by 149 centimetres, worth $25 000. Purves had a record of that very work coming in on exactly that day. So this note was correct—and as stated, it was a consignment note, a record of an artwork being sent out—not coming in. This consignment note, though, was not signed by Milburn, who had only begun working with Gant in 1988.
Whiteley on Trial Page 36