The fake (or is it?) Lavender Bay

Art conservator Mohamed Aman Siddique and art dealer Peter Stanley Gant were found guilty in May of forging and selling Brett Whiteley paintings to the value of $3.6 million. But did the jury get it wrong?

Facing the Supreme Court again on Friday, Siddique, 67, was sentenced to three years’ imprisonment with 10 months to be served and the remaining 26 months suspended for three years. Gant, 61, was sentenced to five years’ imprisonment with a non-parole period of two and a half years. 

Crikey reported in September that sentencing was delayed for the pair due to an 11th-hour compensation bid, brought by Sydney Swans chairman Andrew Pridham and art dealer John Playfoot.

[Sentencing delayed over Whiteley forgeries]

Yet, in a promising turn of events for the pair, the compensation application was dismissed and their sentences were stayed, pending a bail application in the Court of Appeal. It was an unusual circumstance, with sentencing judge Justice Michael Croucher stating that he has only once before seen a sentence stayed in this way. He also said the jury verdict might not stand.

During the trial, Croucher said he had “rejected by a hair’s breadth the defence submissions that there was no case to answer”. After the no-case submission, Croucher offered the jury a “Prasad“ direction, or the option of returning a verdict of not guilty without hearing further evidence. A judge can offer a jury this option in “rare and exceptional” circumstances where evidence in a criminal case is thought to be so weak that a guilty verdict by the jury would be considered unsafe.

There is a high threshold in Australian courts for a verdict to be considered unsafe or unsatisfactory, and it is reserved for the rarest of occasions when there is the prospect of a miscarriage of justice.

During the trial the court heard that Gant had purchased a real Whiteley, View from the Sitting Room Window, Lavender Bay (“the brown painting”), in 2007, which the prosecution then alleged Siddique used as a template for creating the three forgeries — Blue Lavender Bay, Orange Lavender Bay and Through the Window — sometime after March 2007.

Blue Lavender Bay was sold to Sydney Swans president Andrew Pridham for $2.5 million. Orange Lavender Bay was sold for $1.1 million to Sydney car dealer Steven Nasteski. The third painting, Through the Window, was not sold. Gant maintained throughout the trial that he purchased the three paintings in 1988.

Croucher acknowledged on Friday that the case made by the prosecution was not insignificant. “But in short, having sat through the trial and having reflected on all of the evidence closely, I still cannot see how it is possible rationally to exclude the hypothesis that the paintings existed in 1988.  If that is correct, the verdicts must be unsafe.” Part of the evidence included two witnesses who claimed to have seen the paintings in the 1980s.

“While it should not be overstated, there is in fact more evidence that the paintings existed prior to March 2007, which is when the brown painting was bought and then said to have been used as a template to create the three works.” Croucher said.

In addition to his opinion that the verdict might be unsafe, Croucher pointed to the tremendous toll the justice process has had taken on the health of the accused, particularly on Siddique.

“In the present case, I would not have ordered a stay but for the fact that not only am I very troubled about the safety of the verdicts but that I am even more concerned about the effect of sending to prison an oppressed 68-year-old man of unblemished character … when on my view on the evidence he should not have been found guilty of the offences charged.”

In sentencing, Croucher stated that Brett Whiteley was a highly regarded artist and quoted the late Australian art citric Robert Hughes: “No Australian painter possesses his precocious instinct for making marks on surfaces.”

“Mr Hughes, who was known for his rather acerbic commentary, also had quite a bit to say about the art market. He once said that the new job of art is to sit on the wall and get more expensive. In a memoir he offered this: ‘Art prices are largely about voyeurism and toxic snobbery. They are what you see when you peer up the anus of culture.’” Croucher said.

“By their verdicts in this trial the jury may well have accepted that similar thoughts motivated art dealer Peter Stanley Gant and art conservator Mohamed Aman Siddique to skip the genuine work sitting on the wall part and instead, from 2007, devise a plan to create anew three paintings in the style of Mr Whiteley’s Lavender Bay series and then pass them off to unsuspecting buyers as valuable originals painted by him in 1988.”

“On the prosecution case the accused apparently were sufficiently impudent to think the art world gullible or greedy enough, or perhaps both, to fall for this ruse three times and heavily despite what was thought to be Mr Whiteley’s unique and unmistakable gift.”

“All three works, it was alleged, were created from scratch by Mr Siddique in his studio in Easey Street, Collingwood.  It was said that he drew upon familiar aspects of Mr Whiteley’s motifs and techniques, and used as his template a genuine Whiteley, namely View from the Sitting Room Window, Lavender Bay  … for which Mr Gant paid the handsome price of $1.65 million in March 2007.  Mr Siddique was with Mr Gant when he bought he brown painting in Sydney, and it was delivered to his studio in April that year.  The evidence for this aspect of the prosecution case came largely from photographs taken inside the studio by Guy Morel, a paper conservator who was also Mr Siddique’s tenant.”

Croucher said the paintings must have been “pretty good” not only because they fetched such a high price “but a bevy of respected industry experts gave them gushing approval”. Art dealer Damian Hackett described one artwork as a “bloody cracker”.

However, Croucher also made clear that despite his doubts, he must and does respect the jury’s verdicts and he would sentence the pair on the basis that they were properly convicted of the crimes. Croucher said that whether the verdicts were unsafe was not for him to determine, but for the Court of Appeal to consider.

But, in explaining his decision to stay the sentences, Croucher stated that while it was prudent to pay the highest respect to the jury’s verdict, in the end “justice is better”. “In my view, the interests of justice demand that I stay this sentence.”

The pair were granted a 28-day stay to prepare their appeal and bail application in the Court of Appeal.

Croucher dismissed the compensation applications, as he said they required certain findings of fact and the evidence in the criminal trial was not sufficient to make those findings in a civil application. However, Croucher also outlined that his decision to dismiss the compensation claims did not prevent Pridham and Playfoot from pursuing other civil remedies.

In sentencing, Croucher said that the blue and orange paintings “stood tall and wide against the wall inside this court during the trial. It was as if they were mute sentinels, keeping watch over the proceedings but unable to tell us who created them or when.”

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