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Art dealer Peter Stanley Gant and art conservator Mohamed Aman Siddique were found guilty in May 2016 of forging and selling Brett Whiteley paintings to the value of $3.6 million. But it turns out they didn’t forge anything.

The Crown had previously argued 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 BayOrange 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 had purchased the three paintings in 1988.

Gant and Siddique maintained their innocence throughout the whole ordeal and on Thursday the counsel for the Crown, Daniel Gurvich QC, conceded that the convictions were unsafe and should be quashed, stating: “There is a significant possibility that innocent men have been convicted and each of them should accordingly be acquitted.”

The extraordinary nature of the alleged criminal conspiracy was only matched by an extraordinary court process.

Gant and Siddique had originally been due to be sentenced in September 2016. Crikey reported in September 2016 that sentencing had been delayed for the pair due to an 11th-hour compensation bid, brought by Pridham and art dealer John Playfoot.

The trial judge, Justice Michael Croucher, had previously offered the jury a “Prasad” direction — a direction a judge offers a jury in “rare and exceptional” circumstances where the “evidence is considered so weak that a guilty verdict would be unsafe”. However, the jury — perhaps not wanting to forgo their moment of glory — decided they knew best and not only persevered but returned a guilty verdict.

In November 2016 the pair returned to court, where Gant was sentenced to five years’ imprisonment and Siddique was sentenced to three years’ imprisonment.

However, at the November sentencing the compensation application was dismissed and the sentences were stayed, pending a bail application in the Court of Appeal. Crikey reported that it was an unusual circumstance, with sentencing judge Croucher stating that he has only once before seen a sentence stayed in this way.

Croucher stated at the sentencing hearing that he “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.

He also said the jury verdict might not stand, and on Thursday it didn’t.

At 4.45pm on Wednesday, April 26, 2017, the Crown withdrew its case. The hearing was due to start the next day. The parties still appeared in the Court of Appeal on April 27, where the Court of Appeal made a statement in respect of the late concession by the Crown.

The statement from Justices Mark Weinberg, Phillip Priest and Stephen McLeish was highly critical of the Crown stating the while its withdrawal was welcome, 

“… it is a matter of considerable regret that this Court was not notified until 4.45pm last night that the Crown proposed to make the concession that the applicants’ convictions were unsafe, and should accordingly be quashed.”

“A vast amount of time has been spent by the members of this Court, their staff and the Registry in preparation for the hearing of this appeal.

The belated decision of the Crown to make the concession in the way that it has means that our work has been significantly disrupted. It has resulted in not just inconvenience, but actual prejudice to the rights of other litigants to have their cases heard before this Court in a timely manner.”

With both the prosecution, Court of Appeal and Registry being funded with taxpayer dollars, one wonders how much of that money was wasted by the late concession by the Crown.

The Court of Appeal said: “We do not propose at this time to express criticism of the decision to pursue these charges … we may address these matters in our detailed reasons.”

There will be some waiting with bated breath for this judgment.

The statement notes that while the Crown’s concession is not binding on the Court of Appeal, Justices Mark Weinberg, Phillip Priest and Stephen McLeish had already come to the same conclusion. The Court of Appeal noted in its statement:

“… that Justice Croucher recognised the deficiencies in the Crown case from a very early stage of the trial. His Honour took an unusual course in deferring the execution of sentence, thereby enabling an application for bail pending appeal to be heard. That application was, of course, successful. That has, to some extent, mitigated the harm done to the applicants by what has occurred.

“His Honour also took the unusual course of providing this Court with a lengthy report setting out, in considerable detail, why he considered that the jury, if they had acted reasonably, must have acquitted.

“The threshold for such a challenge to a jury verdict is, properly, a high one. However, as can be seen from the Crown’s concession, that high hurdle has been overcome in this case.

“The members of this Court, between them, have considerable experience in the practice of the criminal law. It is sometimes said that juries ’always get it right’. Sadly, in this particular instance, that seems not to have been so.”

The Court of Appeal in its statement also highlighted that trial by jury was fundamentally important and represented an important safeguard of the rights of the individual.  The Court said that this trial was a “rare and almost unique instance of the [jury] system having failed in that regard” and that there had been literally thousands of criminal trials conducted without anyone being able to show that the jury had got it wrong.

It has been reported that the costs for Gant and Siddique to defend themselves would be close to $1 million.  The costs to the taxpayer are unknown. The emotional costs for the two men cannot be quantified. In his sentencing, Croucher expressed his concern about Siddique’s mental health and that he was at risk of self-harm if he were incarcerated.

Peter Fray

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