Whiteley on Trial Read online

  In 1999, Gant was interviewed on ABC Television program Four Corners in relation to a group of suspect Sidney Nolan paintings that had hit the market. Gant denied they were fake.

  In 2002, the artist Robert Dickerson launched a civil case against Gant over two suspect charcoal drawings purportedly by Dickerson. The matter was settled out of court.

  In 2003, Gant faced a second bankruptcy but paid his debts and the bankruptcy was annulled.

  In 2010, Gant was found in breach of the Fair Trading Act for selling three fake drawings—one in the style of Robert Dickerson and two in the style of Charles Blackman. It was a landmark case in the Supreme Court of Victoria, and Gant was ordered to pay the plaintiffs’ legal costs of $300 000. Dickerson and Blackman never received a cent from Gant.

  In 2011, Gant was declared bankrupt, owing the Australian Taxation Office $1.9 million. His creditors included Charles Blackman, Robert Dickerson, Steven Drake (owed $120 000) and the law firm that had represented Gant in the Dickerson/Blackman case (owed $80 000). The bankruptcy was discharged on 10 August 2015. The ATO did not recoup its $1.9 million.

  In 2011, Andrew Pridham sued art consultant Anita Archer who had sold him Big Blue Lavender Bay. Archer had sourced the painting from Gant. The case was settled confidentially.

  In 2014, Gant appeared as a witness in another landmark case, in the Supreme Court of New South Wales, involving an artwork in the style of Albert Tucker, titled Faun and Parrot. Sydney lawyer Louise McBride sued auction house Christie’s Australia, art consultant Vivienne Sharpe and Holland Fine Art and Cars and its director Alex Holland, a friend of Gant’s. Holland had bought the ‘Tucker’ painting from Gant in 1999 and sold it at Christie’s in 2000. Justice Patricia Bergin declared the work a fake. She noted that Gant was probably the only person ‘totally convinced it is not a fake’. Christie’s, Sharpe and Holland Fine Art were found liable for McBride’s $118 788 loss incurred in the painting’s purchase.

  The court also heard that in December 2012, Christie’s had reimbursed the Australian Club in Sydney $96 070 for another fake Tucker work, Faun Being Attacked by Parrots, sold at auction on 22 August 2000. This too was consigned to Christie’s by Alex Holland who said he had bought the painting from Gant. In her judgement, Justice Bergin wrote that the evidence did not support a finding that Gant knew the painting was a forgery, but his ‘secrecy’ about his involvement with the two fake Tuckers ‘justify at the very least concerns about the reliability of his evidence’.

  In August 2015, Gant pleaded guilty in the Melbourne Magistrates’ Court to nine offences under the Bankruptcy Act and was convicted and fined $3000. He had made a false declaration in his Statement of Affairs, travelled overseas eight times without consent while bankrupt, failed to declare interest in a property owned with his wife and sold three properties within twelve months prior to his bankruptcy.

  The list was not exhaustive, and of course none of these cases would be admissible in the upcoming trial.

  The week after the magistrate’s decision I received an email that gave me reason to believe that ‘de Hory’ may have been in court during the committal:

  From: elmyr de hory 15/04/2015

  To: Gabriella Coslovich

  ps the lady in court everyday taking notes, other than yourself, was Drakes partner … makes you think Drakey might be a little concerned …

  I mentally ran through the faces I had seen. Who was Elmyr? After five years I was no closer to knowing.

  He hadn’t spared his client from trial, but in many ways Robert Richter, QC, had dominated the committal hearing. His voice rumbled in my head for days after the committal had ended. It had puzzled me why Crown Prosecutor Tom Gyorffy had not repeatedly leapt to his feet shouting ‘Objection!’ Then again, I had seen more television courtroom dramas than the real thing.

  ‘My strategy in a committal is let them ask all the questions they want and then I look at all the evidence and try to fill the gaps,’ Gyorffy explained when I spoke to him after the committal. ‘The committal gives the prosecution an insight into how the defence will run a case and allows it to prepare for the trial.’

  It was the first of many lessons in law that Gyorffy would patiently give me. Whereas Richter looked as though he subsisted on coffee and cigarettes, Gyorffy’s shape suggested someone who satisfied his passions without guilt. When he was not in chambers or court, Gyorffy might be found tending his vineyard at home in country Victoria, or entertaining his eclectic group of friends with his wines, wood-fired pizzas and wit. A good-natured bon vivant, Gyorffy had a rebellious streak that he liked to attribute to his genes. As he would often remind people, his great-great-grand-uncle was Sándor Petöfi, one of the key figures of the 1848 Hungarian Revolution. Gyorffy had dedicated one of his wines to him: The Revolutionary’s Chardonnay.

  And so it wasn’t too hard for Gyorffy to sympathise with Peter Gant. He was a great believer that art, like wine, should not be reduced to a commodity.

  ‘He is sort of like a Robin Hood–type character,’ Gyorffy said when I visited him at his chambers. Classical music played on a boombox that looked as though it belonged to the 1980s. A huge Kandinsky print hung on a wall.

  ‘He’s the sort of bloke you would love to have a long lunch with in Carlton. If it wasn’t for the fact that he’s going to be in the dock and I’ve got to be trying to prove that he’s guilty, we’d have a good time. I’ve got a cupboard full of good reds,’ Gyorffy said, chuckling. He laughed easily and often.

  Art, he said, should not be viewed merely as an investment to be hoarded with the intention of making a profit. But surely, I countered, Gant was denouncing the idea of art as commodity as a justification for his deeds? He had profited from the sales of art throughout this career.

  ‘Oh, he’s taking the piss out of people, there’s no question about that,’ Gyorffy said laughing. ‘But you don’t then go and take the mickey out of people by saying, “Oh well, they’ve got money, but they’ve got no taste in art so I’m going to rip them off and tough.” And that’s where he’s crossed the line and that’s where he and I part company. But as the general underpinning philosophy that art should be for the purposes of enjoyment, yeah, I’m with him on that.’

  His liberal attitude towards Gant surprised me. It’s not what I had expected of a prosecutor. Wasn’t the determination to win essential in this game?

  He didn’t see it like that. ‘I prefer to be reasonable. It’s the only way to survive,’ he said.

  Gyorffy had just returned to private practice after twenty-five years with the Office of Public Prosecutions, but he was hoping to be kept on as prosecutor when Gant and Siddique went to trial. He had appeared in hundreds of serious criminal trials but this, he now told me, was one of his ‘favourite cases of all time’.

  When Magistrate Cameron predicted that the major challenge ahead was the criminal law’s demand for so-called hard evidence and its uneasiness with the idea of connoisseurship, she had accepted and adopted one of Gyorffy’s analogies. He had a gift for one-liners and during the committal had argued that Richter had ‘treated these paintings as though they were bloodstains on carpet’. They were works of art, Gyorffy had protested, and examining them was not the same as analysing evidence gathered at a murder scene. The complexity of the forensics was exactly why this was such a fabulous case, he told me.

  ‘If you got it as a judge or a magistrate, you’d just love it,’ he said. ‘We’re used to DNA analysis and bloodstains. They’re pretty straightforward and simple, but once you get into this, a large part of it is opinion. This is running a murder in the late nineteenth century or early twentieth century before the CIS-effect came into play; you had to do it on the basis of the nuances of the evidence.’

  Gyorffy had himself started out sceptical about art experts. When he first read Robyn Sloggett and Vanessa Kowalski’s reports on the suspect Whiteleys he thought ‘they’re off with the fairies’. He began to change his mind while reading The Expert Versus the
Object, a collection of essays that explained how fakes are determined in the visual arts, published in 2004 by Oxford University Press.

  ‘That’s where I got to understand that, hold on, this isn’t a murder, it might be the murder of art, but it’s not a murder trial,’ he said, chuckling at his latest one-liner.

  In the book, American art historian Francis V O’Connor argues that of all the tools used by experts to judge authenticity, ‘connoisseurship’ is primary, more important than historical documentation and scientific analysis. The visual knowledge built up by someone who has seen hundreds of works by a particular artist and recognises the artist’s unique style is comparable to methods used by other professionals—‘methods that are often accepted as systematic and scientific’, O’Connor states.

  ‘Forensic pathologists and anthropologists can deduce from a wound or scrap of bone the weapon employed, the age and sex of the victim, or a human or animal provenance—often by visual inspection alone, and without elaborate laboratory testing,’ he writes.

  The book’s editor, New York counsel Ronald D Spencer, who specialises in art law, compiled the essays with judges and lawyers in mind. As Spencer notes in his introduction, there had been ‘several unfortunate court decisions in which the courts did not fully comprehend the attribution process or the expert’s role’.

  Gyorffy was a convert. He now described Sloggett as one of the best witnesses he’d ever seen in court.

  ‘They’re trying to get at her because they say she’s got an agenda,’ he said. ‘Yeah, she’s got an agenda, it’s called making this area of art more accountable and coming up with systems that help to determine as much as possible in a precise and professional way whether paintings are valid examples of an artist or not.

  ‘And Wendy Whiteley, well, wasn’t she sensational!’ he said, sounding as though he was still relishing the sight of her going to battle with Richter.

  She gave Richter a run for his money, I said.

  ‘A bloody nose!’ Gyorffy countered. ‘Could there be anybody more expert in picking Brett’s work or non-work than the person that he shared almost his entire career with, and who had a lot of those paintings painted in her lounge room?’ he asked.

  I told him I was off to Sydney soon, to see Wendy and that very lounge room in Lavender Bay.

  ‘You lucky thing!’ he said, with childlike enthusiasm.

  Gyorffy was making a point of reading as much as he could before the trial. Brett Whiteley Art & Life, the 1995 catalogue of the artist’s posthumous retrospective at the Art Gallery of New South Wales, was lying on his desk, and he showed me another book he’d recently bought: Drawing and Painting: Materials and Techniques for Contemporary Artists, by English artist Kate Wilson and Simon S Laurie, published in 2015. Research was essential in a case this novel and important—his first major criminal art fraud case.

  ‘I think this is the first major criminal art fraud case full stop,’ he said. ‘Frauds are notoriously hard to establish. Not just art frauds but frauds in general.’

  Even with the evidence gathered so far, he was confident of a conviction.

  ‘It’s a circumstantial case and the circumstances are such that we would win, even with what we’ve got now.’

  I’d been with Gyorffy for an hour and a half when the phone rang. It was his instructing solicitor on the case, Shane Kenna, who still worked for the Office of Public Prosecutions. Gyorffy took the call.

  A few minutes into the conversation, I heard Gyorffy’s tone of voice change.

  ‘Aren’t they? Oh. Oh. That’s no good. Yeah. Well, you’ll have to pick up the stuff. All right. Fair enough. Yeah. Okay. See you at 12.30. Bye.’ He got off the phone.

  ‘Well, he’s just told me management has refused to brief me for this now,’ he said, meaning the Office of Public Prosecutions.

  What? I was incredulous. Did he mean he was off the case?

  ‘Yeah, they want to do it in-house,’ he said, dispirited.

  The Office of Public Prosecutions would hand the case to one of its own prosecutors—Gyorffy would not hold on to it. He had just been divested of one of the most fascinating cases of his long career.

  PARTII

  Sydney—Wendy, Wealth and Wood Ducks

  ‘IT’S HIGHLY CONFIDENTIAL WHAT goes on here. It really is like a doctor–patient relationship. People bring us things with the utmost discretion,’ said Sydney conservator David Stein, a man with a solid reputation, a chiselled face and the kind of rich, strong voice that would work well on radio. Casually dressed in a crisp checked shirt, Converse sneakers and neat jeans, he was trim of body and sharp of mind; one of those people who think on their feet and whose sentences seem to emerge fully formed.

  I wanted to ask him about the alleged Whiteley fakes, and the man accused of creating them, fellow conservator Aman Siddique, but we had been sidetracked by the damaged and disfigured works awaiting attention in his inner-Sydney studio, among them a painting requiring delicate surgery.

  It caught my eye in a corner of the studio, stacked against a wall, a portrait of a dark-haired woman, supine, gazing passively at the viewer. She wore a white shirt, loose and undone. At the woman’s neck, the canvas had been violently slashed—twice. The attack, Stein told me, occurred during a domestic argument. Better the painting than an actual woman, I thought, wondering how on earth Stein would repair the canvas without leaving a trace of the injury. He estimated it would take about fifty hours to fix. The bill would be around $10 000, for a painting worth about $75 000—an expensive argument, but at least that was the worst of it.

  Stein’s Darlinghurst studio was on the same street as the National Art School, the alma mater of many a well-known Australian artist and erstwhile school of a young Wendy Susan Julius. Her husband-to-be, Brett Whiteley, took the occasional life drawing class there with his friend and fellow artist Michael Johnson. While the National Art School was conspicuous with its high, barrack-like sandstone fence, one might walk right past the entrance of Stein’s studio without noticing it. A canopy sheltered a barred gate in front of a door with a green-tinged brass knocker and a small copper plate that stated in the tiniest of fonts: David Stein Studio. He was my first Sydney interview; one of four lined up over a five-day visit in September 2015 to learn more about the nuances of the case before it headed to trial.

  Stein joked that if one googled his name, what came up first were references to the infamous Egyptian-born French forger David Stein, who was the subject of the 1973 book Three Picassos Before Breakfast: memoirs of an art forger’s wife. The Stein before me, on the other hand, prided himself on maintaining the highest principles of his profession, of bringing museum ethics to the commercial world of conservation. He described himself as a ‘conservator’, not a ‘restorer’—that is, as someone who refuses to alter an artwork to such an extent that its integrity and the artist’s intent are compromised. One of conservation’s foremost principles is that whatever is done to an artwork must be reversible.

  While Stein agreed to meet me, and did so without hesitation when I first phoned him, in person he made it clear that he had nothing to gain from speaking publicly about the Whiteley art fraud case and the man he once revered—Aman Siddique.

  ‘I just feel that there’s no upside to my name going into print. None. Zero. I come from one place and one place only, and that is to make sure that Australian art doesn’t suffer out of all this.’

  ‘I’ve got no axe to grind with Aman, other than, if he’s done the wrong thing, which it appears now he has, a great deal of disappointment, great deal of disappointment,’ he said, shaking his head in disbelief at the charges laid against a conservator once considered among Australia’s best.

  ‘He rang me, exactly a year ago when it first hit the news, and said, “You don’t believe any of this?” I thought he was priming me up for a character reference, and some way through the conversation I think he realised that I wasn’t up for it … but he didn’t ask me.’

  Stein ha
d examined many Whiteleys during his twenty-four years in the business. One had just arrived at his studio, still concealed in its timber crate, fresh from the recent auction of an important single-owner collection.

  ‘I’ve worked on a lot of Whiteleys, a lot, a lot, a lot,’ Stein said, in his passionate, forthright way.

  ‘I’m very respectful of Whiteley surfaces. He used everything and anything on his surfaces, all at once, so he would use acrylic, pencil, watercolour, gouache, PVA, magazine collage, rocks, twigs, birds’ nests, eggs, you name it, hair, and anything else that was lying around. So, in cleaning those surfaces you have to be really respectful that even water is going to start taking off things that shouldn’t be taken off.’

  With his intimate knowledge of Whiteley works, Stein was asked his opinion on the suspect Orange Lavender Bay in mid-December 2009, when Steven Nasteski was considering buying it. Sydney dealer Andrew Crawford, who had offered the painting to Nasteski after sourcing it from Melbourne dealer John Playfoot, had the painting delivered to his Paddington gallery. After its arrival, Crawford studied the painting for several hours and just didn’t like what he saw. He invited prominent Sydney dealer Denis Savill to his gallery to inspect the work. Savill asked Stein to join him.

  ‘My first reaction was “another bad day in the office for Whiteley”’, Stein told me. ‘I didn’t think “it’s not a Whiteley”. It had too many cluey hallmarks for it to be an outright fake, there were too many things.’

  Savill urged him to keep looking.

  ‘That’s when I said, “What are you suggesting?” So I had a closer look and as I was there it just grew into “This is not right, this is not right”, even though it had a Brett Lichtenstein frame, and it had the black baguette, the iconography. But the brushwork, when you look at it, cuts in around the iconography, around the positive image. Whiteley didn’t do that. He painted and then painted over it, but he didn’t cut in around it, and it became more and more obvious that it was wrong.’