In Films v Victoria Police & Gant
[2022] VSC 159
•30 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CR 2015 0034
| Between: | |
| IN FILMS PTY LTD (ABN 88 143 843 627) | Applicant |
| -and- | |
| VICTORIA POLICE | First Respondent |
| -and- | |
| PETER STANLEY GANT | Second Respondent |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 25 March 2022 |
DATE OF ORDERS: | 25 March 2022 |
DATE OF PUBLICATION OF REASONS: | 30 March 2022 |
CASE MAY BE CITED AS: | In Films v Victoria Police & Gant |
MEDIUM NEUTRAL CITATION: | [2022] VSC 159 |
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CRIMINAL LAW — Practice and procedure — Police records of interview (“ROIs”) — Application by film producer to permit publication of ROIs — Edited versions of ROIs played in open court at trial and tendered as exhibits — Trial concerned alleged art fraud by two accused — Both accused found guilty at trial but acquitted on appeal — Application supported by Victoria Police and accused subject of ROIs — Some persons mentioned in ROIs not opposed to application — Attitude of others, including other accused, unknown — Publication of edited ROIs unlikely to create distress of the kind potentially telling against publication — Application granted in respect of edited versions of ROIs played and exhibited at trial — Crimes Act 1958 (Vic), ss 464JA & 464JB.
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| APPEARANCES: | Counsel | Solicitors |
| For In Films Pty Ltd | Dr G Boas | N.A. |
| For Victoria Police | No appearance | N.A. |
| For Mr Gant | No appearance | N.A. |
HIS HONOUR:
OVERVIEW
On 25 March 2022, I heard an application for orders under s 464JB of the Crimes Act 1958 (Vic) permitting Victoria Police to supply In Films Pty Ltd with the audio visual recordings of two police interviews (“ROIs”) with Peter Stanley Gant.
In 2016, Mr Gant and Mohamed Aman Siddique were tried jointly in this Court on charges arising out of the alleged creation and passing off of three paintings as Brett Whiteley originals. Mr Gant was interviewed by police in 2014. Edited versions of his ROIs formed part of the evidence led in his trial (but not in the trial of Mr Siddique). Both men were found guilty by the jury and sentenced to terms of imprisonment[1] but were acquitted by the Court of Appeal.[2]
[1]See The Queen v Gant & Siddique [2016] VSC 662.
[2]See Gant v The Queen [2017] VSCA 104.
As explained in the affidavit of Ivan O’Mahoney, In Films wishes to use the ROIs as material in a two-part series it is producing for the ABC provisionally entitled “The Whiteley Trial Project”. Mr O’Mahoney, who is a director of In Films, said that the series:
looks at [the] trial and at the wider question of the integrity of our national heritage given that the secondary art market in which such paintings were sold is unregulated. Many people involved in the trial are voluntarily participating in the making of the series, including Victoria Police and Mr Gant.
I granted the application and made orders accordingly. My reasons for doing so follow.
BACKGROUND
Introduction
The details of the trial and the subsequent appeal are recorded in my reasons for sentence and other orders and in the Court of Appeal’s judgment. What follows is a short summary of some of the major features of those hearings.
The trial
Charges
In April-May 2016, Mr Gant, an art dealer, and Mr Siddique, an art conservator, were tried in this Court on charges of obtaining and attempting to obtain property by deception.
Prosecution case at trial
The prosecution case was to this effect. Mr Gant had bought an authentic painting by Mr Whiteley at auction in March 2007 for $1.65 million. It was alleged that, from 2007 to 2009, pursuant to an agreement between the accused, Mr Siddique used the authentic work as a template to create anew three paintings in the style of Mr Whiteley’s Lavender Bay series, which Mr Gant then passed off or attempted to pass off as originals painted by Mr Whitley in 1988. One painting (“the Blue painting”) was sold for $2.5 million, sight unseen by the buyer (but on the recommendation of an agent). Another (“Through the Window”) was offered for sale for $950,000, but did not sell. The third (“the Orange painting”) went for $1.1 million.
In support of its case, the prosecution led evidence in various categories, including:
a) photographs taken (surreptitiously) in a private section of Mr Siddique’s Collingwood studio showing unfinished works that looked similar to the three finished works the subject of the charges, two of which were in evidence (one, Through the Window, which was mostly lavender in colour, was never seized; only photographs of it were before the Court);
b) infrared photographs of the Blue and the Orange paintings showing underdrawings which, it was argued, were at least similar in some aspects to the underdrawings visible in photographs taken at Mr Siddique’s studio;
c) the opinions of art academics doubting the authenticity of the Blue and the Orange paintings;
d) evidence said to show that the timing of the ordering of materials and framing fitted with the timeline of the creation and sale or attempted sale of the paintings;
e) evidence that there were no catalogues to be found in libraries or galleries referring to any of the three paintings;
f) evidence of the sale and attempted sale of the paintings and the associated dealings with art dealers or agents; and
g) evidence that Mr Gant proffered an undated written statement, purportedly signed by Robert Le Tet as the owner of the Blue painting, which Mr Gant’s solicitors later acknowledged, in correspondence, was neither written nor signed by Mr Le Tet.[3]
[3]This evidence was admissible against Mr Gant only.
There was also evidence that, while a bevy of respected industry experts gave one or more of the paintings gushing approval, others (including Mr Whiteley’s ex-wife Wendy Whiteley) were not so convinced and appeared doubtful of their authenticity.
Defence case
In essence, the defence case was that the paintings were in fact created by Mr Whiteley and acquired by Mr Gant in 1988.
When interviewed by police in 2014, Mr Gant said that he bought all three paintings in the late-1980s through Christian Quintas, who was Mr Whiteley’s assistant-cum-manager at the time. He said he would have a record of the paintings in his consignment book. Further, he said that the Orange painting was shown in a catalogue created for an exhibition in 1989 that ultimately did not go ahead after his business partner died suddenly.[4]
[4]Again, Mr Gant’s account in his ROIs was admissible only in his trial.
There was cogent evidence, in both viva voce and documentary form, led in the prosecution’s own case that supported Mr Gant’s account.
First, Mr Gant’s former gallery assistant Rosemary Milburn identified an original consignment book which recorded, in her handwriting and with her signature on a consignment note, the delivery, from Mr Quintas on 28 June 1988, of three Whiteley paintings of the same size, name and colour as those the subject of the charges. She remembered the three large paintings of blue, lavender and orange arriving at the gallery in bubble-wrapped pallets.
Second, I mentioned the evidence that there were no catalogues to be found in libraries or galleries referring to any of the three paintings. In the defence submissions, this was explained not only by Mr Gant’s account but also by the evidence of Jeremy James. In 1989, Mr James, whose family had a printing business, was engaged by Mr Gant to photograph two large Whiteley paintings for a catalogue for a proposed exhibition. One was orange; the other was blue; and both were Lavender Bay types. He identified the finalised catalogue, entitled “A Private Affair”, and pointed to a page therein that showed his photograph of the orange painting. (The blue painting did not make it into the catalogue.) Only a small number of catalogues were ever printed because the exhibition did not go ahead when Mr Gant’s business partner died suddenly. What is more, Mr James identified the Blue and the Orange paintings standing in this Court as the ones he photographed in 1989. Further still, he produced an earlier proof of the catalogue, which contained his own handwriting and his photograph of the Orange painting.
Prasad invitation
At the close of the prosecution case, I rejected (albeit only just) defence submissions that there was no case to answer. But I did take the rather exceptional course of giving the jury a Prasad invitation.[5] I did so on the basis of the evidence of Ms Milburn and Mr James, together with the documents, and to a lesser extent some other evidence that need not presently be mentioned. That invitation, the giving of which has since been held by the High Court to be contrary to law,[6] was sometimes offered to a jury in circumstances where a criminal case was thought to be so weak that the judge was concerned that a guilty verdict would be unsafe.[7] Having heard all of the evidence to that point in the trial, I formed the view that it was not open to a properly instructed jury to exclude the reasonable possibility that the three paintings were created by Mr Whiteley in 1988. If that was right, verdicts of not guilty had to follow.
Jury’s verdicts
[5]See R v Prasad (1979) 23 SASR 161.
[6]DPP Reference No 1 of 2017 (2019) 267 CLR 350.
[7]By use of the word “unsafe”, I mean a verdict that is “unreasonable or cannot be supported having regard to the evidence” (see s 274(1)(a) of the Criminal Procedure Act 2009 (Vic); M v The Queen (1994) 181 CLR 487).
Evidently, the jury took a different view. For they declined to take up the Prasad invitation and decided instead to carry on with the trial, as was their right. Additional evidence was called in the case of Mr Siddique; counsel made their final addresses; I delivered my charge; and the jury were sent out to consider their verdicts. After two-and-a-bit days of deliberations, on 12 May 2016, the jury returned verdicts of guilty against Mr Gant and Mr Siddique.
Sentence stayed pending appeal
On 4 November 2016, I sentenced Mr Gant to a total effective sentence of five years’ imprisonment with a non-parole period of two-and-a-half years, and Mr Siddique to a total effective sentence of three years’ imprisonment with ten months to be served immediately and the other 26 months to be suspended for three years.[8]
[8]The Queen v Gant & Siddique [2016] VSC 662 at [145]-[153] (Mr Gant) & [155]-[165] (Mr Siddique).
The same day, however, I ordered that the sentence imposed on each accused be stayed, pending determination of proposed applications for bail before the Court of Appeal. In short, I took that exceptional course because I was of the view that there was a powerful argument that the verdicts were unsafe. This view was based on the body of evidence that the three paintings had indeed been created by Mr Whiteley and bought by Mr Gant in 1988.
The appeal
As foreshadowed before me, Mr Gant and Mr Siddique applied to the Court of Appeal for leave to appeal against their convictions.
On 27 April 2017, the Director of Public Prosecutions conceded that each appeal should be allowed and verdicts of acquittal should be directed.
The Court of Appeal agreed. As Weinberg, Priest and McLeish JJA explained in their joint judgment:[9]
[105] The question before this Court reduces to whether the only rational inference which a reasonable jury could draw, based on all the evidence, was that the three paintings were created by Siddique in the period after mid-2007 rather than having been painted by Whiteley and acquired by Gant in 1988. While there was certainly evidence which could support the conclusion that Siddique created the paintings in 2007 to 2009, using [the authentic painting] as a template, if the jury were to convict, they needed to find beyond reasonable doubt, on the whole of the evidence, that the paintings had not existed before 2007. That meant, in particular, that the jury could only convict if satisfied that both Milburn and James were entirely mistaken in their evidence of having seen [the Blue painting] and [the Orange painting] in 1988 and 1989 respectively. Otherwise, there was available a rational inference from that evidence inconsistent with the Crown case and therefore inconsistent with verdicts of guilty.
[106] As the Director properly conceded before this Court, there was simply no evidence to support the conclusion that Milburn and James were so fundamentally mistaken. The suggestion that they may have been had not been put to either witness. The Crown case was, moreover, that each witness, and especially James, was mistaken in a number of critical respects. Further, while a jury is not obliged to accept even the unchallenged evidence of a witness, in this case, for them to have done so required discounting not just the oral testimony, but documentary evidence that unequivocally and powerfully supported that testimony. Far from providing a basis for rejecting their evidence, the contemporaneous documentation tended to confirm its reliability.
[107] In the case of Milburn, the consignment note supported her recollection. There was no reason beyond mere speculation to view that note with suspicion. Inexplicably, the Crown seems not to have subjected it to any kind of expert evaluation. At least to the untrained eye, it appears to be in the same handwriting as other entries in the book. No reason appears for rejecting Milburn’s unequivocal evidence that the writing was her own.
[108] In relation to James, both the catalogue and the running proof supported his evidence in respect of [the Orange painting] and, therefore, his account of photographing both it and [the Blue painting]. Again, no expert analysis of these documents, or the handwritten notations in the proof, was undertaken on behalf of the Crown. Moreover, the unchallenged evidence as to the events said to have led to the cancellation of the ‘A Private Affair’ exhibition itself affords a compelling explanation for the very limited production of the catalogue. In the circumstances, there is no reason not to accept its authenticity.
[9]Gant v The Queen [2017] VSCA 104 at [105]-[108].
In the result, the Court allowed the appeals, quashed the convictions and ordered that verdicts of acquittal be entered.
THE APPLICABLE LAW
The statutory provisions
I turn now to the provisions governing this application.
Section 464JA of the Crimes Act sets out a number of offences in relation to the unauthorised possession or use of ROIs made by Victoria Police. Briefly, it criminalises possessing, playing, supplying, copying or publishing an ROI, other than to authorised persons or in specified circumstances.
One such specified circumstance is where a court has made a direction under s 464JB. Section 464JB(2) provides that a court “may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an [ROI]”.
Relevant factors
In DPP v Williams (No 1),[10] Hollingworth J considered in some detail the history and scope of s 464JB. Her Honour observed that the provision is drafted in broad terms, and does not purport to describe or limit the circumstances in which a court’s discretion may be exercised.[11] Helpfully, she went on to set out the following non-exhaustive list of factors which may be relevant in considering the exercise of the discretion under s 464JB:[12]
[10]DPP v Williams (No 1) (2015) 51 VR 408.
[11]DPP v Williams (No 1) (2015) 51 VR 408 at 412[16] & 413[22].
[12]DPP v Williams (No 1) (2015) 51 VR 408 at 417-418[43].
a) the privacy of the interviewee, interviewers, and others mentioned in the interview;
b) whether the interviewee consents to the release;
c) the attitude of other people affected by the ROI;
d) whether any person (such as victims or children) would be adversely affected by release;
e) whether the ROI discloses graphic details of offending;
f) whether any criminal investigations or trials are ongoing;
g) whether release may undermine the integrity of the criminal justice process;
h) the level of contemporaneous public interest in the case;
i) whether release will enhance the fair and accurate reporting of the case;
j) the principle of open justice (where the ROI has been played in open court); and
k) the nature of the proposed publication.
As Hollingworth J also said, in each case, the court must consider for itself whether the foregoing (or any other) factors are relevant to the application at hand and, if so, what weight to give to those factors.[13]
[13]DPP v Williams (No 1) (2015) 51 VR 408 at 418[44].
THIS APPLICATION
In addition to the matters mentioned earlier, in his affidavit, Mr O’Mahoney in effect sought to address the factors listed by Hollingworth J by making the following points (which, in part, are in the nature of submissions):
a) No person or organisation would be adversely affected by the release of the ROIs.
b) The ROIs do not contain any graphic details of any offending that might shock or embarrass, or otherwise contain inappropriate content (rather, they deal with alleged art fraud).
c) The trial and the appeal have concluded and there are no matters outstanding.
d) The release of the ROIs would not undermine the integrity of the criminal justice system (on the contrary, it would help explain how the criminal justice system works).
e) There was, and continues to be, a high level of public interest in the case.
f) Because the series will seek comprehensively to recount the course of, and key moments in, the trial, release of the ROIs would enhance fair and accurate reporting of the case.
g) Release of the ROIs would serve the principle of open justice.
In his affidavit, Mr O’Mahoney also said that he is informed and believes that Victoria Police and Mr Gant consent to this application. Exhibited to his affidavit is an email he received on 11 February 2022 from Sergeant Luke Western of Victoria Police’s Film and Television Office, which, in part, reads as follows:
I hereby confirm that Victoria Police are working with In Films with regards to your documentary series for the ABC provisionally entitled the Whiteley Trial Project and that one of our officers has been interviewed for the program.
With this email I also confirm that Victoria Police holds copies of the [ROIs] with Peter Gant dated 6 March 2014 and 9 April 2014, and that Victoria Police supports your application for directions for the supply, copying, editing, playing and publishing of those [ROIs], pursuant to s 464JB … .
If a more formal letter is needed for the application, please do not hesitate in letting my office know …
Also exhibited to Mr O’Mahoney’s affidavit is a letter dated 24 February 2022 from Mr Gant, which, in part, reads in this way:
I understand that you will shortly [be] making application to the Supreme Court to obtain copies of [ROIs] that were used in my Supreme Court trial.
I have no objections at all to you making this application. The [ROIs] were used at the trial and I see no reason why they should not be available now for your purposes.
Dr Boas appeared for In Films on the application. Neither Victoria Police nor Mr Gant filed an appearance; nor was either represented by counsel or a solicitor.
In substance, Dr Boas adopted the points made by Mr O’Mahoney in his affidavit, and made a few others.
Dr Boas also advised that he was instructed, and I accepted, that In Films had contacted a large number of people connected with the case for the purpose of securing their participation in the series, in one way or another. For example, I was told, and I accepted, that, among those mentioned in the ROIs:
a) Steven Nastevski (who bought, and then got a refund for, the Orange painting) and John Playfoot (who was an art dealer involved in the sale and return of the same painting) have been interviewed for the series;
b) Andrew Pridham (who bought the Blue painting) does not wish to be interviewed but has “participated in the process”;
c) Anita Archer (who was an art dealer involved in the sale of the Blue painting) has not been approached as yet; and
d) Mr Siddique is not participating in the series (although his junior counsel at trial, John Ribbands, is).
There were others mentioned in the ROIs about whom Dr Boas did not have instructions.
CONSIDERATION
In short, having considered the matters raised in the materials and additionally by Dr Boas, and the factors and principles in Williams, I determined that the application should be granted. My reasons for doing so included the following factors.
First, Victoria Police and Mr Gant consented to or did not oppose the application.
Second, the involvement in the series of those mentioned in the ROIs rather suggests that they would not oppose the application.
Third, of those who are mentioned in the ROIs but who have not participated in the series and whose attitudes to the application are not known, it is unlikely that they would be adversely affected by release, particularly in circumstances where there has already been a public trial at which the ROIs were played. Further, the trial and the appeal were the subject of extensive media coverage at the time, and a rather detailed book about the case was published a short while afterwards.
Fourth, the ROIs do not disclose disturbing content such as often occurs in cases of, say, alleged homicide or sexual offending. Instead, serious though the allegations were, they concerned alleged art fraud.
Fifth, since the trial and the appeal have concluded, ultimately with acquittals, and since there are no matters outstanding, there is no risk that any jury or other proceedings could be compromised by publication of the ROIs.
Sixth, the proposed publication appears, potentially, to be a component of a series designed to touch on and provoke a wider discussion of matters of legitimate public interest and debate.
Finally, unless handled inappropriately, which I should have thought would not occur, I cannot see how release of the ROIs might undermine the integrity of the criminal justice system. Even if the series were to take an unfortunate turn of that kind, it is difficult to see how the release of the ROIs might add to such a choice or, more importantly, to any distress to those who are mentioned in the ROIs but whose attitudes to release are not known.
In the result, the factors in favour of permitting publication substantially outweigh the factors against that course.
My only concern was that, as framed, the application was not confined to the edited versions of the ROIs played and received as exhibits at the trial. Dr Boas accepted that the application should be confined in that way. He was right to do so. There was no reason justifying the release of the ROIs in their original (unedited) form.
ORDERS
Accordingly, I granted the application and made orders to the following effect:
1. Victoria Police and/or Mr Gant may supply the ROIs to In Films, and In Films may copy, edit, erase, play or publish them.
2. The permission granted in order 1:
a) does not extend to any redacted parts of the original ROIs; and
b) extends only to the versions of the ROIs played in court on the trial of Mr Gant and marked as Exhibits 61 and 62.
3. For the purposes of giving effect to these orders, either Victoria Police or Mr Gant may, if necessary, approach the Office of Public Prosecutions in order to obtain copies of the versions of the ROIs played in this Court on the trial of Mr Gant.
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