Whiteley on Trial

by Gabriella Coslovich

  Next I tried Cook, who was named on a consignment note dated ‘9/12/87’. Two Robert Hollingworth oil paintings on canvas were listed on that note, made out ‘to’ David Cook. Cook remembered receiving these two works around that date. So these two works were also being sent out—not coming in to Gant’s gallery.

  More importantly, Cook might be able to shed light on the controversial consignment note number ‘21’, which, as Milburn told the court, listed twenty-one paintings coming into Gant’s gallery on 28 June 1988, the same day that she swore the three ‘Whiteley’ paintings had come in. The note was made out ‘to’ DC Art, in Woollahra, David Cook’s business. Cook did not recognise that consignment note at all.

  ‘I have no reason to think I ever had these twenty-one pictures in my gallery, nor that I ever sent them to Gant.’

  While the art world had pronounced them fake, the paintings at the centre of the case remained in legal limbo. Was there any way of conclusively dating such contemporary works; a scientific method that could show that the paintings were produced some time between 2007 and 2009, and not in 1988? Or vice versa?

  I contacted Dr Nicholas Eastaugh, an international forensic art expert, who had trained as a physicist before studying conservation and art history at London’s Courtauld Institute of Art, Siddique’s alma mater. Eastaugh is the founder and director of Art Analysis and Research, and early on, Siddique’s defence team had considered using him as an expert witness.

  Eastaugh suggested a technique that could provide a more accurate estimate of a contemporary artwork’s age—bomb curve or bomb pulse radiocarbon. The technique was a form of radiocarbon dating made possible because of humanity’s fondness for detonating above-ground nuclear bombs from 1945 onwards. The hundreds of nuclear blasts conducted until 1963’s test ban treaty caused the concentration of carbon-14 in the earth’s atmosphere to double. Since then, the atmospheric concentration of carbon-14 has been falling and has now dropped to pre-testing levels. Carbon-14 can be detected in all living organisms—and organisms that were once living, such as wood or linseed—and so it can be used as a marker of age.

  ‘The very good thing about it, is that it can provide dates to within a year or two, essentially, so it’s very accurate,’ Eastaugh told me via Skype. ‘So across this critical period from the mid-1950s until the present you can make quite precise measurements on the materials. It’s something we’re increasingly applying in these cases.’

  As always, there were some provisos. The test needed more material than one would usually use for paint analysis and therefore tended to be done on an artwork’s support. In the case of the suspect Whiteley paintings, the wooden doors could have been tested using bomb curve radiocarbon dating. If the door panels were shown to be made from wood dating from 1993 onwards, the artworks could conclusively be shown to be fake, as Whiteley died in 1992. However, a finding of older timber would not conclusively prove that the artwork was genuine—as old doors could be used with new paint.

  I wanted to know more about paint solubility tests, which Sloggett had used early on to cast doubt on the authenticity of the orange and blue paintings—were such tests ever a reliable marker of age? Eastaugh was cautious about commenting without knowing the full context of a situation and without having performed his own independent analysis, however, he was willing to make a general observation.

  ‘Something like the solubility of paint is so open to many other factors that it’s not a simple test. Under very strict controlled circumstances you might find certain progressive changes in the solubility of paint but it’s related to so many other factors, from the compositional to the environmental, that it’s not something that you would choose as a test. It’s not something that we do as a test of age.’

  The arrests of Peter Gant and Aman Siddique in March 2014 had seemed such a turning point. Finally, something was happening after years of perplexing police inaction on the three dubious Whiteleys that had been the subject of art world speculation since at least 2010. Two detectives had persisted, perhaps ingenuously, with their investigations into the suspected fraud, and had done so despite the indifference of their supervisors. The case became a cause célèbre, leading to the most significant art fraud trial this country had seen, and the reckoning of Gant, who had been linked to suspect artworks and about whom there had been doubts and innuendo since the 1990s. He and his alleged accomplice were convicted in May 2016—and sensationally acquitted a year later.

  Previous convictions for art fraud relating to forgery in Australia are few. Ivan and Pamela Liberto in 2007. Adelaide art dealer John O’Loughlin in 2001. The crime is under-reported and the number of art forgeries committed unknowable—there are no solid statistics. An often-quoted figure is that on conservative estimates about 10 per cent of works that come on to the Australian art market are, to use the legally neutral term, ‘not right’. The difficulty is proving criminal intent—as the defence barristers kept repeating, it is not a crime to copy an artist’s work.

  No more than one case of art fraud a decade seemed to reach the criminal courts here, and when they did the results suggested a lack of resolve in prosecuting such cases. The O’Loughlin case was a good example. In October 1999, O’Loughlin was arrested and charged with nineteen counts of obtaining money by deception for passing off fakes as the work of Indigenous artist Clifford Possum. He had brashly done this during the artist’s lifetime and Possum had identified the works as not being his. O’Loughlin was committed for trial, but before it began the prosecution offered a plea bargain, which he accepted. In 2001, he pleaded guilty to five counts of obtaining money by deception and was sentenced to a 3-year good behaviour bond. The case is detailed in the 2009 writings of Sydney lawyer and criminologist Dr Duncan Chappell and his Melbourne colleague, criminologist Professor Ken Polk. They describe O’Loughlin’s sentence as remarkably lenient and certainly discouraging to the police who had invested considerable resources and time to investigate the matter.

  The only other conviction I could find was referred to in a paper presented at an art crime conference in Sydney in 1999, by Paul Baker, of PricewaterhouseCoopers. Baker spoke of a 1977 case involving an unnamed Melbourne art dealer, who was convicted of five counts of dishonestly obtaining money by deception for selling Russell Drysdale–style drawings he knew were fake. Baker noted that ‘in an interesting spin, counsel for the defence … argued that his client must have been innocent because his conduct “in openly displaying the drawings for the world to see were the actions of an innocent man, not one who thought they were fake”.’ Drysdale himself gave evidence that the drawings in question were not his own. In his paper, Baker asked a question that leapt at me: ‘What if the artist is unavailable to give evidence?’

  Lenient sentences for those convicted of faking art were not peculiar to Australia. Duncan Chappell pointed me to the case of the charismatic German forger Wolfgang Beltracchi, who had flooded the market with hundreds of fake artworks, including works in the style of Max Ernst, Heinrich Campendonk, Kees van Dongen and Max Pechstein. Beltracchi operated successfully for fifteen years before being pinned by police. He was foiled when one of his Campendonk-style paintings, Red Picture with Horses, dated 1914, was found to have titanium white paint in it—a pigment that did not exist in 1914.

  In October 2011, Beltracchi was sentenced to six years’ jail, his accomplice wife, Helene, to four, to be served in an open prison. He was released after three years, she in less than two. ‘The sentences handed down to Mr Beltracchi and accomplices in Germany for their long-term art-related fraudulent activities, which reaped millions of Euros in rewards, were remarkably light,’ Chappell told me.

  He surmised that perhaps the lenience reflected ‘a feeling that dabbling in the contemporary art market is a rich person’s foible and that criminal justice resources can be better spent chasing down “real crooks” who peddle drugs, etc’. Certainly that was the response of some of the German media during the trial—to the dismay of the investiga
tors who had cracked the case, the biggest operation undertaken by Berlin’s art fraud division. As reported by Joshua Hammer in Vanity Fair in 2012, ‘Much of the media portrayed the couple as fun-loving hipsters and admirable renegades, whose only crime had been hoodwinking the wealthy and famous.’ Not all reporters saw it this way; Der Spiegel correspondent Michael Sontheimer was unimpressed by his peers’ flippant approach and described the court proceedings as a ‘farce’. Beltracchi himself gave a ‘long, ramblingly theatrical confession’, Hammer writes, attacking the ‘greed’ and ‘arrogance’ of the art market. The con man went on to become a celebrity, riding on his notoriety, starring in a documentary, and selling paintings in his own name.

  In their 2014 writings about the Beltracchi case, Chappell and his colleague Dr Saskia Hufnagel describe how the German police ‘conducted a very thorough investigation that involved expert knowledge of art and the market as well as the use of advanced technology to prepare a watertight case’—‘a stark contrast to the Australian situation’.

  ‘The Australian examples have shown that art fraud cases present significant challenges to police, judges and prosecutors as the relevant expertise is often not present within their ranks,’ they write.

  Italy, France and the United Kingdom all have specialist art crime units—Germany has no fewer than three police units specialising in art fraud. Australia has none. The Australian Criminal Intelligence Commission investigates many types of fraud. Its website lists them: superannuation, investment, mass-marketed, tax, financial, card, identity. There is no mention of art fraud.

  ‘They’re supposed to be our top investigative agency and they have huge powers; they haven’t shown the remotest interest in this area,’ Chappell told me.

  He and Hufnagel have suggested that Australia would benefit from law reform as ‘existing laws regarding offences of fraud and forgery are lumbered with archaic and confusing principles that make prosecutions difficult’.

  Almost two decades ago at the 1999 art crime conference in Sydney, Paul Baker suggested something quite similar: ‘Perhaps it’s time our legislators assist law enforcement by including art theft and art fraud into the respective Crimes Act.’

  The art world had counted on the law to resolve the matter of the three suspect Whiteleys, but the law had raised more questions than it had answered. Ultimately what seemed most piercingly on trial were the skills of police, prosecutors and expert witnesses. The spotlight turned on their credibility, while the accused retained their right to remain silent. The law demanded proof ‘beyond reasonable doubt’ that a crime had been committed. The art market demanded the opposite, reasonable proof that an artwork was genuine. These contrasting views seemed irreconcilable.

  The case illustrated what was already known—the difficulty of prosecuting art fraud—and seemed unlikely to deter the forgery of art in Australia. It might even give heart to potential fakers, and weaken an already poor appetite among police for investigating such cases.

  But was this simply a case of flawed policing, a marred prosecution, and ineffectual expert witnesses, as the defence had argued, supported now by the views of four judges? Might criticisms also be made of the criminal justice system and its ability to appreciate the nuances and complexities of art authentication?

  As Gyorffy kept observing, the criminal courts had slight regard for the role of the connoisseur and did not acknowledge that the stylistic observations of an artist’s work, where points of identification are used to determine whether a work is by an artist or not, was a form of pattern recognition, no different to the work of forensic scientists who gave evidence about fingerprints, blood stains, tool marks, tyre marks, bullet holes, fire debris and so on. Forensic scientists were just as capable of getting things wrong. Science was not infallible; scientific validation could also be subjective. DNA was the only gold standard. In the case of art fraud, forensic analysis should always be considered alongside art historical knowledge and connoisseurship—as forgers could be vigilant about using historically accurate materials.

  ‘We’ve got to the stage now where we expect empirical data to back up forensic evidence,’ Gyorffy had told The Australian. ‘And it’s laughable in many ways, because in a personal injury matter, for example, doctors constantly give evidence about what they expect consequences of an injury to be in the future, the cost of recovery. That’s not based on empirical data; that’s based on experience and knowledge. It stands up in court, but when it comes to art stuff people just seem to go a bit haywire.’

  Of course, improvements in the presentation of art fraud cases were necessary: there were serious consequences for those charged with the crime, and these consequences demanded an equally serious approach to the prosecution of the accused. This case was an opportunity to learn. The techniques used by art experts could be strengthened by the building of comprehensive databases that systematically documented artists’ materials and techniques—creating information that might have more power as evidence in a criminal court. But could the judiciary itself be better informed about the art industry and the subtleties of art fraud? Or did the responsibility only go one way?

  And was there a greater question at play here? Art in all its forms was the deepest expression of a culture’s identity, it was the legacy passed to future generations. Art fraud was so often examined through the prism of the market, as though it was only the dollars lost that counted, but wasn’t the bigger issue the integrity of a country’s cultural heritage?

  Gant wouldn’t see me, so I went off to see him one last time. On a June morning of brilliant sunshine, six weeks after the appeal, I drove to Ascot Vale, in Melbourne’s inner west. I was told he’d be waiting at the end of a long driveway, behind the main house on the block, in a tiny tin-roofed weatherboard with a many-coloured, toy-like picket fence. A tall figure walked towards the front security door: it was David Rellim, a bearded, gentle-faced man of few words in a trilby, jaunty old blazer, striped t-shirt and well-worn jeans. He invited me in to his ramshackle home, a classic artist’s habitat, teeming with canvases hung salon-like, or stacked against walls, unfinished.

  We walked to a back room and there he was, staring at us, glass of red wine in hand, near-finished bottle at his bare feet, one leg cocked on knee. The squares on his checked blue shirt curved over his expanding pot belly. He said nothing; he was as mute as Whiteley had been in court that day he had flickered into life on the video screen.

  Gant’s left hand rested on flushed cheek, fingers pointed towards sealed lips. He was unblinking, his gaze direct but impenetrable. He locked eyes with me in a way he never had in real life. I had come face to face with his portrait. Rellim was painting him for the 2017 Archibald Prize, figuring he might be a person of interest in that year’s competition. The prize is preferentially given to the best portrait of a person distinguished in art, letters, politics or science. Gant, I supposed, could be said to fit that bill—he had undeniably left his mark on the arts.

  Rellim had come to know him through a friend in common. During a turbulent time in Rellim’s life, Gant had gained the artist’s trust. The association was of mutual benefit—Rellim, too, had secured Gant’s confidence. He had felt comfortable enough in Rellim’s company to sit for hours at a stretch while the artist painted his portrait, and had done so several times while on bail pending the appeal. Gant would drink and joke, making typically inappropriate comments, often of a lewd nature, while Rellim painted. A subject on which Gant would not be drawn was the alleged art fraud. He would be returning that very week for another sitting.

  I sunk into the large old armchair that Gant would occupy in a few days and contemplated his image on the easel opposite me, wondering why Rellim had painted his cheeks so ruddy, his stare so unbroken. He hadn’t intended to make him look quite so scheming, but speculated that his subconscious might have had something to do with it. You see, Rellim too had a story to tell about Gant, and a deal that had not gone to plan.

  After the acquittal, life i
n the arts and the law went on. The barristers wheeled their trolley suitcases into new hearings, defending new clients. Justice Croucher wept while sentencing a man convicted of manslaughter. And the works of Brett Whiteley kept selling for millions. On the surface it seemed little had changed. But for those swept up in the Whiteley art fraud trial everything had changed. Lives had been disrupted, reputations bruised—and for what? Some of those who had put themselves on the line as witnesses felt betrayed, their faith in the justice system shaken. ‘They say that the witness box is the loneliest place on earth. And I really felt that,’ Jud Wimhurst had told me the day we met. The truth remained elusive. Notions of authenticity seemed beyond the scope of the law. The enduring question was how much as a culture did we care?

  Acknowledgements

  Back in early 2015 when I decided I wanted to write a book about one of the most significant art fraud investigations to reach the Australian criminal courts, there was never a question in my mind to whom I would pitch the idea—Sally Heath, executive publisher at Melbourne University Publishing. Sally had played a pivotal role in my development as a journalist at The Age newspaper, during her time as editor of Saturday Extra, and later A2 magazine, and also as deputy editor of The Sunday Age.

  Embarking on a book is daunting—especially one’s first. With unwavering cool, Sally guided me down this unexplored track, nudging me whenever doubt crept in (as it often did), amplifying it to the odd push or shove when necessary. Her suggestions and insights, and the support of her team at MUP, were fundamental to this project.

  I was blessed to work with copy editor Meaghan Amor who eradicated my fear of ‘track changes’ and restored my faith that there were still people in the world who cared passionately about words, grammar, style, structure. Her interest and knowledge in the subject matter, and words of encouragement, kept me going during difficult moments. Thank you too to production editor Louise Stirling, for her unfailing enthusiasm.