The release this week of Gabriella Coslovich’s new book, Whiteley on Trial, has once again ignited Art World chatter, shining a light on the murkier side of the Australian art scene and finding that it exists still as a safe place for unsavoury characters.
Despite as the title of Coslovich’s investigative work suggests, the true culprit was not Brett Whiteley. Neither was it solely the pair of art conservator Mohamed Aman Siddique and art dealer Peter Gant who were on trial throughout 2016 in the Victorian Supreme Court for perpetuating Australia’s largest art fraud. Coslovich points the finger squarely at the Court itself, in its determination it seems to lay fault squarely at the feet of the Art World.
In its summation the Court gobsmackingly dismissed expert analysis and the irrefutable observations of Whiteley’s widow and protector, Wendy, as in effect mere opinion.
I agree with Coslovich’s central thesis that the courts were impatient, reticent and less than rigorous in dealing with this case. In my view, it is however not just the courts that have to answer for the surprise outcome in this extraordinary case - that reverberates still - but the legal system itself. Frustratingly, the law it seems was simply inadequate to deal with things of this nature.
It was not the first time the multiple bankrupted Gant had been before the courts charged with attempting to sell forgeries.
At the risk of paraphrasing Oscar Wilde's Lady Bracknell, ‘Once may be regarded as a misfortune; but twice looks like carelessness'.
Collectors duped by fake Blackmans and Dickerson
In 2010, a judge found three art works sold by Gant and said to be by prominent Australian artists Charles Blackman and Robert Dickerson were fakes. Blackman and Dickerson took their case against Gant to the Victorian Supreme Court. They alleged the two Blackman works he supplied, Three Schoolgirls and Street Scene with Schoolgirl, and Dickerson’s Pensive Woman, were not genuine. The three works were sold to a Melbourne businessman between 1999 and 2005 for more than $24,000.
“They were fakes masquerading as the genuine article", the judge said.
‘‘What is more, they were deliberately contrived to deceive unsuspecting members of the public. The false signatures drawn on each of the works could have had no other purpose.’’ Remarkably Justice Vickery made no finding against Gant that he knew the works were not authentic. Despite this, he said these breaches of the Fair Trading Act were serious, leading to reduced confidence in the works of the artists. The public could also be duped by unwittingly buying forged artwork, he said. The artists who launched the civil action settled their claim with gallery owner Helen Stewart and the forgeries were later ceremoniously destroyed. (Businessmen duped in art forgery, Sydney Morning Herald, 1 June 2010)
The Whiteley Case
In 2016, Gant and Siddique were found guilty in Australia's biggest art fraud case – involving purportedly fake Brett Whiteley paintings entitled, Big Blue Lavender Bay and Orange Lavender Bay which sold for $3.6 million. The two men were initially jailed being found guilty of two counts of obtaining a financial advantage by deception and one of attempting to obtain a financial advantage by deception involving the three artworks. But a Supreme Court judge granted the pair a stay on their sentences after admitting he was troubled by the jury's verdict based on the evidence of some expert witnesses.
Despite their evidence, he said it was possible the paintings actually were Whiteley originals dating back to the late 1980's. The decision on this basis was overturned as unsound soon after on appeal.
Art dealer Peter Gant arrives at Court to face allegations of engaging in a criminal enterprise
Australian art dealer Stuart Purves was at the time indignant, “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, sculpture, printmaker and more for over 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.” (Coslovich 2017, p313)
Writing in The Australian last week, Patricia Anderson critiquing Coslovich’s book writes,
In the Whiteley case the jury found the men guilty. The art world celebrated. But earlier this year the court of appeal reversed the guilty verdict and the art dealer and the restorer walked free. Whether the paintings are real or fakes remains an open question.
The ongoing dilemma for the art market is that fakes are proliferating. While those purchased by state galleries such as the National Gallery of Victoria’s ‘‘Van Gogh self-portrait” are demoted in the full glare of public scrutiny, individual buyers are often obliged to lick their wounds in private, and perhaps seek to reintroduce the work back into the marketplace through a sympathetic dealer or auction house, a classic example of pass the parcel.
The law demanded proof ‘beyond reasonable doubt’ that a crime had been committed,’’ Coslovich writes. “The art market demanded the opposite, reasonable proof that an artwork was genuine.’’
"Notions of authenticity", she argues, seem “beyond the scope of the law. The question is do we, as culture, care?”
Ultimately both buyers were left with paintings that will never easily re-enter the market. Coslovich’s intricately researched story is a cautionary tale.
(Patricia Anderson, 'Whiteley on Trial by Gabrielle Coslovich: an art world whodunit', The Australian, 30 September 2017 (edited))
In my view, the Court in this criminal case was negligent in its failure to uncover the truth. But the administration of justice here was constrained by the law itself. Some legal experts have recommended strengthening existing intellectual property laws to address the growing problem of art forgeries proliferating in the mass market. They argue that the existing legal regime, in this case the criminal code - with its strict rules of evidence and higher evidentiary burden of proof - is ineffective in combating this growing trend. In this, one can only agree.
Whilst the characters in this sordid legal drama may well disappear from view, the damage to the reputation of and public confidence in the often secretive Art World it seems is unlikely to fade any time soon.
Gabriella Coslovich Photo: Kate Ballis, Sydney Morning Herald
Gabriella Coslovich, Whiteley on Trial, Melbourne University Press, 2017 (RRP $29.95)
Main Photo: Brett Whiteley in his Surrey Hill's studio, Sydney Morning Herald
Andrew McIlroy is a visual artist, living and working in Melbourne, Australia