Whiteley on Trial Read online

  ‘Mr David Black is a current employee of the Victoria Police Forensic Services Department, and he’s very experienced in his field and I trust what he says is accurate,’ the detective said coolly. ‘And we’re talking about two different cases, two different lots of signatures.’

  But didn’t van de Wiel have a point—shouldn’t the officer have tried to see whether Holland could do it? Shouldn’t he have exhausted all possibilities? This was, after all, a case of alleged art fraud. The veracity of signatures, invoices, catalogues, should have all been tested, shouldn’t they?

  Wasn’t it ironic, though, that van de Wiel should quote from the McBride case—he left out, of course, a major part of the story. Gant was the ultimate source of that fake Albert Tucker painting. And as Justice Patricia Bergin had declared, Gant was probably the only person totally convinced that the Tucker painting was not a fake. But of course, the jury was not to know.

  The jurors walked silently past the orange and blue paintings in court, observing the works up close, as they had asked. The judge gave strict instructions: no talking, no pointing, no writing in notebooks, walk single file.

  ‘I feel like a schoolteacher, I’m sorry, but there it is,’ the judge said.

  Jury deliberations were confidential and so it was important that as they looked at the paintings they betray no emotion.

  ‘We don’t want to look into your minds—maybe we do—but we are not allowed to look into your minds,’ he said.

  The judge’s tipstaff and associate tilted the paintings forward so that jurors could inspect the backs as well. Wraight had been particularly eager for this to happen—there was ‘an enormous amount of information’ on the back of each painting that was ‘very, very important to our case’, he had told the judge that morning in the absence of the jury. On the back of the orange painting the words ‘MARMALADE, NTH SYDNEY’ were written over brown tape, a reference, the defence claimed, to one of the companies Le Tet owned from 1992 to 2001—Marmalade Films. On the back of the blue painting was ‘C. QUINTAS/29/253 Goulburn St/DARLINGHURST/ph—2124831. Was this information ‘very, very important’? It could easily be added by someone in the know.

  From the upstairs gallery I watched the jury quietly trail past the paintings. The retired cabinet-maker had a good, long look behind the blue painting. What was he searching for? The brooding young man, who wore a hooded top each day and was prone to slouching in his seat, took great interest in the blue painting. He went back for a second look. The other young man who often sat next to him looked intently at the skyscrapers on the orange painting. I wished that I could read their minds.

  That afternoon, the black-clad figure of Brett Whiteley sprung to life. He had made it into the courtroom after all. There he was in front of a huge white canvas, leaping before it with a stick of charcoal, freckly hand moving quickly across the surface, making loose scribbly loops here, tighter little drawings there, a mass of ginger curls bobbing up and down on the screen. This was the last piece of evidence played to the jury before the Crown’s case came to an end. A video of Whiteley himself.

  Wraight, still smarting from Wendy Whiteley’s comment that her ex-husband did not do underdrawings, wanted to disabuse the jury of this ‘unfortunate bit of evidence’ led by the Crown. He wanted the video shown. Borg agreed—‘If there is a conviction, it shouldn’t be on the basis of that one line,’ she said.

  And so the jury watched a two-and-a-half minute excerpt from the documentary Difficult Pleasure. In his Raper Street studio, surrounded by unfinished canvases, Whiteley worked on his vast artwork Paris (Summary), a swirling amalgam of various landmarks of the French capital. It was nothing like Whiteley’s Lavender Bay paintings. Here the emphasis was on drawing—it was primarily a charcoal and pencil work, with ink, collage and oil. It was about the play of line as much as the Lavender Bay paintings were about the play of paint. The drawings were not going to be coloured in. We were not comparing like with like—but somehow now it didn’t matter.

  Whiteley rubbed back drawings with an eraser. Used a calligraphy brush to swiftly create a row of trees. Picked up his charcoal stick again and marked in the roads around a collaged photo of the Arc de Triomphe. Drew in cars on a roundabout. Sized up collage cut-outs and pasted them on the canvas. Grabbed a brush large enough to paint a house and dabbed a bit of paint here and there. He looked intently at his work, ran his fingers through his thick ginger curls, and sat down in his cane chair to contemplate some more. Here was the defence’s junkie: well-dressed, alert, creating beautifully crafted works in 1989.

  The video was played with the sound off. Whiteley was mute. Silenced. We did not hear his lyrical description of ‘the business of drawing’—drawing—not underdrawing. Had the volume been turned up the jury would have heard him speak words that for me summed up the last four weeks.

  What’s to be minute, and what’s to be exaggerated … what’s to be ambiguous and what’s not to be … when do you stop distorting when there is no end to distortion once you start …

  That Thursday afternoon the jurors were dismissed until Monday morning. They had no idea what was brewing.

  The judge had the power to take the decision on this case away from the jury, and that was exactly what the defence barristers were asking Justice Croucher to do. They spent all of Friday arguing that there was no case to answer and that the prosecution’s evidence fell short of the standard required in a criminal court. The prosecution could not prove beyond reasonable doubt that the paintings in court did not exist in 1988–89.

  Sloggett couldn’t scientifically date the paintings, she couldn’t even definitively say they were fake, Wraight argued.

  Van de Wiel argued that the jury was being asked ‘to do experiments’ and that it couldn’t determine with any precision whether the paintings in Morel’s photographs were the paintings in court. Morel’s photographs were at an angle and photogrammetry had not been used to line them up with the paintings in court. The jury was also being asked to conduct an experiment by trying to superimpose the infra-red images onto Morel’s photos and the paintings in court.

  The judge reminded van de Wiel that the Crown did have the evidence of the timing of the paintings—the blue being created in late 2007 and sold in late 2007 and so on. Van de Wiel argued that that was ‘equally consistent with the mirror image’: once the copies Siddique was making were finished, the original painting could be sold. Defence barristers’ twists of logic never ceased to amaze me. I was equally astonished to hear the judge ask: ‘Where’s the copy?’

  ‘You can’t ask me,’ van de Wiel replied mischievously.

  ‘Well?’ the judge said.

  ‘I have no duty.’

  It was one of the tenets of the criminal law: the accused didn’t need to prove a thing. But even judges might think in ways that weren’t permitted.

  During the lunchbreak, I sat under cover in the courtyard listening to the rain. The tall, black-gowned figure of Ribbands walked my way. He was speaking on a mobile, laughing. He always seemed not to have a care in the world, as though it were all a big game for him. Phone call over, we began to chat. I lightheartedly suggested that it would be helpful if I could speak to Siddique, to hear his side of this complex story, knowing that the answer would most likely again be no.

  ‘He won’t talk. He doesn’t have the personality for it. Aman is shattered by what has happened. It has ruined his life, even if he is not convicted,’ he said gently.

  It should never have come to this, he said. The prosecution’s case was weak.

  As we spoke, Gant sauntered up. Seeing us talking he turned to Ribbands and joked, ‘You shouldn’t be fraternising with the enemy.’

  ‘I’m not the enemy,’ I said smiling. ‘I’m a journalist. We try to stay objective, keep an open mind.’

  ‘Journalists? Objective? The reports in The Australian haven’t been,’ he snarled. ‘They’re taking the prosecution’s line.’

  I reminded him that Detective Sergean
t Macdonald didn’t exactly look great in the story a day ago, with the headline declaring he’d had to google Whiteley.

  ‘Yeah, what about writing that Wendy Whiteley is a moron?’ Gant said, his face half sneer, half smile.

  The rain kept gently pattering as we made our way back inside.

  That Friday afternoon wore laboriously on until all the barristers had argued their case. The judge had to make a decision. He put it to Wraight that if he were to reject the defence’s ‘no case to answer’ submission, would he ask the judge to invite a Prasad? That is, invite the jury to find the accused ‘not guilty’ now that the Crown’s case had ended. Wraight clenched his jaw; the lines on his face deepened. He asked for five minutes to speak with his client. The judge asked van de Wiel to do the same with his client. The court adjourned while the barristers and the accused decided their next move. The stakes were being raised. Gant was a gambling man. The decision didn’t take long. Five minutes later, Gant walked back in, face drained of colour. He would wager until the end. They would go for a Prasad.

  ‘Okay. All right,’ the judge said solemnly. ‘Well, obviously I have to go and do some thinking this weekend, and I’ll let you know first thing Monday morning.’

  The mood at the end of that day was electric.

  The defence must have been confident that the judge would rule in their favour and end the trial. He had said, after all, that the evidence of James and Milburn seemed ‘to destroy the Crown’s case’. And so it might have been hubris that prompted the defence to send out an email that Friday inviting court reporters and writers to a ‘Q & A lunch on the defence case in the Whiteley trial’. The lunch was scheduled for Monday 2 May at a restaurant in Flinders Lane, to be hosted by ‘lead defence barrister Mr John Ribbands’ who would ‘reiterate the case for the defence and provide any necessary context’.

  I did not score an invite, but I was soon fielding emails and calls from court reporters who had.

  ‘I’ve never seen anything like this,’ one of them emailed me. ‘Did you know they had a spin doctor?’

  No, I did not.

  Another court reporter rang me that Friday afternoon staggered by the proposed lunch. It was unprecedented for defence barristers to be sending lunch invitations to journalists in the middle of a trial, he said. He wanted to write a news report on it. I encouraged that line of thought.

  Who, I wondered, was paying for the lunch?

  Elmyr de Hory had been strangely quiet during the trial, so I shot him an email that weekend. I hadn’t heard from him since April. He replied with some rancour that Sloggett ‘had the opportunity to finally get these guys’ but ‘blew it’. ‘This is a giant fail on her behalf,’ he wrote. He wasn’t pleased with Wendy Whiteley’s testimony either and her ‘stupid statement about Brett having a bad hair day’. I wondered whether Gant was feeding him his lines.

  Today, I thought, it could all be over. The courtroom was unusually quiet. Missing was the customary ripple of laughter and banter from the bar tables. Gant’s former defence barrister Dermot Connors had dropped in to watch. He walked up to Gant in the dock and said hello. Gant put out his hand. Connors did not take it.

  Two knocks announced the judge’s arrival. The court rose. Siddique sat with arms folded across his chest, face tight. Gant looked to the floor. The wigs all faced down; a row of black shoulders hunched over folders. The judge sat at his bench looking more puffy eyed than usual. He asked his tipstaff to send the jury away until midday.

  ‘I’d be hoping they would be going away for good, Your Honour,’ Wraight joked half-heartedly.

  His hopes were broken. At the end of a long preamble outlining his reasons, the judge made his ruling: ‘I am of the view that there is a case to answer.’

  Siddique’s son pursed and twisted his lips. The room was heavy with tension. But the judge was still throwing Gant and Siddique a lifeline. He would give the jury a Prasad invitation. The jury would decide whether the accused would go home today as free men.

  ‘You can tell I found this very, very difficult. That’s why I have got dark circles under my eyes or darker than usual. I’m not confident that I am right about all of this but there it is,’ the judge said. ‘I’m confident of the Prasad; I’m not confident about the no case.’

  So the case was nearly thrown out. The judge’s tipstaff later told me that this was the first time in his nineteen years with the Supreme Court that he had seen a Prasad invitation.

  The judge also dropped charge four against Gant—the charge involving the painting given to Guy Angwin in lieu of a debt—and severed charge five, regarding the sale of Orange Lavender Bay to Steven Drake. This charge would be decided at a later date if Gant was found guilty.

  At midday, the jurors were recalled. The judge told them that two jurors would need to be balloted off as the Crown case was finished and had reached ‘its highest point’. They were not told that a Prasad direction was imminent. They were told to go back into the jury room, gather their belongings and bid each other a ‘provisional goodbye’. Half an hour later, they were called back. One of the jurors opted to go as he had a seriously ill mother-in-law overseas, leaving one more to be balloted off. The retired cabinet-maker’s name was pulled out. I was sorry to see him go. The judge thanked him for his service and expressed his great belief in the jury system.

  ‘I often tell juries this, that in other states some trials are conducted without juries these days,’ he said solemnly. ‘We don’t have that yet and I hope we never do, frankly, because I think juries are very important. It’s important that people from the community generally be asked to decide cases like this rather than people in my position, but there it is, that’s a personal view.’

  At 1 p.m., the six women and six men who would decide Gant and Siddique’s fate were called back into the courtroom.

  ‘You, the jury, are at this point now entitled to return a verdict of not guilty on each charge rather than continue with the trial,’ the judge told them.

  The invitation was a ‘comparatively unusual course’ but one that nevertheless sometimes occurred in trials, he said. The jury could return a verdict of not guilty if the prosecution’s evidence had failed to satisfy beyond reasonable doubt. The judge then began to demolish the prosecution’s case.

  He cautioned the jury about the evidence of Sloggett and Kowalski.

  The prosecution, he said, relied on the timing of the ordering of the doors and frames, but this was also ‘perfectly consistent’ with the defence’s idea of copying existing paintings.

  The prosecution had not challenged the veracity of the evidence of Milburn or James that the paintings existed in 1988–89.

  ‘The explanation has to be that somehow they are mistaken or somehow flukishly, incredibly flukishly, two different people are speaking about the same paintings existing in ´88, ´89, but they must be some other Whiteleys. Well, matter for you,’ the judge said.

  Incredibly flukish and yet matter for you? Didn’t these two comments rule each other out?

  And on the judge went, restating almost to the word the defence’s arguments. The jurors looked grim—as though they were resisting these words. Was the judge’s assessment conflicting with theirs? The forewoman scratched her hand, unsmiling.

  The judge summed up, saying: ‘If it’s possible in your minds, having heard all of the evidence, that these paintings were created in 1988, then you must find the accused not guilty of all charges, it’s as simple as that. It’s entirely a matter for you but, as I say, it’s—I am doing this for a reason.’

  I am doing this for a reason.

  But still the defence was not happy. Van de Wiel asked that the jury be recalled as the judge forgot to mention something. He had neglected to tell the jurors that even if the case were to continue, they would hear no further evidence capable of altering the Crown’s position.

  And so the jury was brought back in. The judge apologised for dragging them back so quickly. He had one more point to make: they neede
d to understand that the Crown’s evidence was at its highest point—‘it can’t improve’, he said. He blamed his oversight on the fact that he was a soccer fan and had stayed up late to watch Leicester play his team, Manchester United.

  ‘So that’s my excuse—it’s not a very good one, is it?’

  In a huge upset, Leicester City, the underdog, had drawn against Manchester United. The team went on to win the English Premier League Championship, through a series of flukes, rather than sporting prowess. A metaphor for this case? But who was the underdog here? The Crown, whose case had been cruelled? Or Gant, who portrayed himself as a man persecuted by nouveau riche philistines and the Crown? We were yet to find out, but the judge’s direction to the jury, virtually urging them to acquit, spelt victory for Gant and his silent friend in the dock.

  The words ‘incredibly flukish’ kept ringing in my ears. I wanted to add to that list of incredible flukes—mirror images they might also be called. Incredibly flukish that Brett Whiteley and Christian Quintas were both dead and could not be consulted about the paintings in court. Incredibly flukish that the paintings were both dated 1988 when Wendy was no longer with Whiteley. Incredibly flukish that a catalogue with Orange Lavender Bay photographed in it appeared when Nasteski started asking questions. Incredibly flukish that a running proof was found and brought to the trial. Incredibly flukish that the exhibition of A Private Affair was never held because Gant’s friend and prospective business partner Greg Korn died and Gant had a breakdown. Incredibly flukish that no library in Australia had a copy of this catalogue. Incredibly flukish that Gant, who was so keen to add to the paintings’ status that he invented a story about Le Tet owning them, never pushed the paintings to be included in the Art & Life retrospective of 1995 and 1996. Incredibly flukish that when faced with bankruptcy in 1993, he did not sell these valuable assets. But, as the law told me again and again, I was not to reason this way. The burden of proof lay wholly with the prosecution.