Alleged Whiteley Forgers Acquitted Due to Prosecution’s Omission

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By Paul Gregoire and Ugur Nedim

In late 2007, investment banker and Sydney Swans chairman Andrew Pridham bought the painting Blue Lavender Bay for $2.5 million. The purchase was made on the understanding that the artwork had been painted by renowned Australian artist Brett Whiteley.

The late artist’s wife, Wendy Whiteley, paid a visit to Mr Pridham in April the following year, when she questioned the authenticity of the painting. Ms Whiteley contacted Anita Archer, the art dealer who had arranged the sale, and asked for proof that the painting was a Whiteley original.

Melbourne art dealer Peter Gant, who asked Ms Archer to facilitate the sale, provided a statement allegedly signed by another well-known Victorian art dealer Robert Le Tet, asserting he’d commissioned the painting directly through Mr Whiteley’s former manager back in 1988.

Mr Gant later admitted that he’d produced the Le Tet statement, although he was never charged with making a false document.

More suspect Whiteleys

Sydney car dealer Steven Nasteski was under the impression the painting Orange Lavender Bay was a Whiteley original when he purchased it for $1.1 million in late 2009. On a gut feeling, art dealer Andrew Crawford asked Ms Whiteley to view this painting and she remarked, “It’s definitely a fake.”

The sale of a third painting, Through the Window, Lavender Bay, to Ralph Hobbs fell through, after the art dealer questioned its authenticity. Priced at $950,000, the painting was also being sold by Mr Gant, who subsequently used it as collateral to defer repayment on a debt to a Melbourne café owner.

Charged with a $4.5 million fraud

Concerns about the authenticity of all three paintings led Victoria police to conduct an extensive investigation. On 5 March 2014, Mr Gant and prominent Melbourne art restorer Mohamed Aman Siddique were arrested in relation to Australia’s biggest ever alleged art fraud case.

The pair stood trial in the Victorian Supreme Court (VSC) in May 2016. Both men were charged with two counts of obtaining a financial advantage by deception, contrary to section 82 of the Victorian Crimes Act 1958. The offence carries a maximum penalty of 10 years imprisonment.

Mr Gant and Mr Siddique were also charged with one count of attempting to obtain financial advantage by deception, under sections 82 and 321M of the Crimes Act. The maximum penalty for the offence is 5 years imprisonment.

Studio produced imitations

In March 2007, Mr Gant bought a Brett Whiteley painting called View from the Sitting Room Window, Lavender Bay for $1.65 million. Gant was with Mr Siddique at the time of the purchase, and the painting was subsequently delivered to the art restorer’s Collingwood studio.

During the trial, the prosecution alleged that Mr Siddique had used the newly purchased painting as a template to create the alleged Whiteley forgeries in his studio over a two year period.

A former employee of Siddique’s, Jud Wimhurst, testified that in mid-2007 a usually locked storage area in the studio was left open and that he saw three unfinished paintings in a style resembling that of Brett Whiteley’s inside. Mr Wimhurst told Guy Morel about the paintings.

Mr Morel, an art conservator who worked in the studio, took photos of the paintings in various stages of completion over the next two years. The photos showed the recently purchased Whiteley painting alongside those under production. The photos were tendered as evidence in court.

The court also heard that Melbourne University academics Robyn Sloggett and Vanessa Kowalski had examined two of the paintings. They gave evidence of inconsistencies in the techniques used in the scrutinised paintings, when comparing them with other known Whiteley works.

No crime in copying art

The defence lawyers submitted there was no joint criminal enterprise. The three paintings that were up for sale were 1988 Whiteley originals that Gant had obtained at the time. While Siddique had produced copies, which isn’t a crime, the paintings in question weren’t those copies.

Rosemary Milburn, a gallery assistant who worked at Gant’s studio in 1988, testified that a note in a consignment book documenting the arrival of the paintings at the studio in June that year was indeed written by her.

Jeremy James gave evidence in relation to a 1989 art exhibition catalogue that purportedly featured one of the paintings. Mr James, who was working as a printer at the time, said he recalled taking photos of two of the paintings for the catalogue.

However, the prosecution neglected to cross-examine these two key witnesses – a monumental error as it left open the possibility the artworks were originals. The prosecution team also failed to undertake forensic testing of the consignment book.

Instead, the prosecution barrister suggested during her closing submissions that the witnesses may have been mistaken, a submission which in itself may have breached the rule in Brown v Dunn – a rule that requires a party who seeks to rely on submissions which contradict a witness’ testimony to put the general content of those submissions in the form of questions to the witness.

Stayed sentences

On 12 May 2016, the jury found both Mr Gant and Mr Siddique guilty on all charges.

On 4 November, VSC Justice Michael Croucher sentenced Gant to 5 years in prison, with a non-parole period of 2 years and 6 months. Siddique was sentenced to 3 years behind bars, of which all but 10 months was suspended.

Justice Croucher, however, ordered that the sentences be stayed pending an appeal. This meant the two men didn’t have to serve time behind bars. His Honour did this on the basis of his belief the verdicts might be unsafe, and therefore liable to being quashed on appeal.

The Crown concedes

In April last year, Mr Gant and Mr Siddique appealed their convictions to the Victorian Court of Appeal on the ground they were unreasonable or could not be supported by the evidence.

Late on the afternoon before the hearing, the Director of Public Prosecutions informed the court that he conceded the ground of each appeal. Justice Mark Weinberg subsequently explained that the court was not bound by the Crown’s concession and it would therefore hear the appeal.

A flawed case

Justice Weinberg, along with justices Philip Priest and Stephen McLeish, outlined in their full findings on 8 May last year, that for a verdict of guilty to be reached the jury needed to find beyond a reasonable doubt that the purchased paintings were indeed fakes.

But the justices noted Ms Milburn and Mr James provided clear evidence that the paintings existed in the late 1980s, and there was nothing put forth to prove that the evidence they provided was fundamentally mistaken.

These witnesses’ testimonies were backed up by documentary evidence, which left “solid obstacles” to accepting the Crown case, the justices remarked. They pointed out that the prosecution should have cross-examined the witnesses, rather than leaving the jury to speculate on their evidence.

“Such speculation, which the prosecutor effectively invited by the manner in which she couched her closing address to the jury, may well have contributed to the error in the jury’s verdict,” their Honours reasoned.

Getting off scot free

The panel of justices found that all of the convictions were unreasonable and could not be supported by the evidence. Their Honours therefore ordered that the convictions “be set aside and that verdicts of acquittal be entered.”

The justices stressed that their reasoning made no affirmative findings that the artworks were original Brett Whiteley paintings. “To be clear, we make no such finding. Nor are we equipped to do so,” their Honours remarked.

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