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PROVING CONTEMPORARY ART FORGERIES: AN ANALYSIS OF R. v. GANT AND SIDDIQUE.

INTRODUCTION

The art market has grown considerably since the late 1990s, and with it, the value of art. It has been asserted that regulation and transparency of the art market are considerably lower than any other market, (1) and, as a result, art authentication is critical in the industry as the value of a work is directly attributed to its authorship. This article examines the difficulty of providing admissible evidence of authenticity in relation to deception in art fraud, in the context of the recent Australian decision of R. v. Gant and Siddique ('Gant'). (2) First, it will outline the legislative framework governing art fraud. Then, it will provide an overview of the Gant decision and analyse it in light of the legislative requirements. Finally, this article will offer solutions to overcome current difficulties in detecting and prosecuting art fraud, in order to ensure more effective, just, enforcement.

ELEMENTS OF FRAUD

The legal avenue for pursuing art fraudsters is through the criminal charge of obtaining, or attempting to obtain, a financial advantage by deception. (3) The four elements of the crime involve:

(i) a deception by the accused that

(ii) produces some form of harm,

(iii) to a victim who was deceived and

(iv) the defendant had some form of knowledge, intent or dishonesty.

The first element calls upon the prosecution or police investigators to establish that the victims were deceived about the work's authenticity, thus the prosecution has the onus of proving that the work is not in fact authentic. There are several types of evidence used to determine authenticity, namely (i) surveying the provenance of the work, (ii) scientific analysis of the work, and (iii) stylistic analysis of the work. (4)

EVIDENCE ACT 2008 (VICTORIA, AUSTRALIA)

In the state of Victoria, Australia (the presiding jurisdiction in Gant and Siddique), the Evidence Act 2008 ('the Act') governs evidence and provides the standards for admissibility of evidence. Evidence is admissible if it is relevant, and if the opinion and credibility rules do not apply. Relevant evidence is evidence that could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. (5) Evidence that is relevant is admissible in the proceeding. (6) The Act provides that expert opinion evidence is admissible as an exception to the opinion rule. (7) Under the Act, a person with specialist knowledge based on training, study or experience, may give their opinion if it is based on that knowledge. (8)

The three main types of evidence in art fraud--provenance, art historical analysis and scientific analysis--must be admissible by the Act. Experts likely to give this type of evidence include, inter alia, art connoisseurs, conservators or restorers. In order for expert evidence to be admissible, there must be an agreed field of'specialist knowledge', and an identified aspect of that field in which the witness demonstrates that by way of specialist training, study or experience, the witness has become an expert. (9) Separately, the expert must proffer their opinion wholly or substantially based on their expert knowledge. (10)

AUTHENTICITY EVIDENCE

For accurate results, experts should consider all three types of evidence described above. Unless it is clear that the work is authentic, it is suggested that it be common market practice to combine all three methods when analysing the work. (11)

PROVENANCE

Provenance is the artwork's history of ownership that links it back to the artist. Australian art dealer Stephen Nail says that provenance is the "clear responsibility of all market professionals". (12) Evidence of provenance can come in the form of exhibition catalogues, bills of sale, scholarly catalogues raisonnes, official acquisition records, official sale records and statements from the artist certifying the work is by them. (13) It is important to note that forged artworks may also be accompanied by forged provenance, such as fake exhibition records (14) and experts should not therefore rely on documentary evidence alone to establish authenticity.

Ironically, given the protagonists in the proceedings at issue, an excellent example of art professionals giving expert evidence involves an action brought against Peter Gant in 2010, when two artists, Peter Blackman and Robert Dickman, sued him for impliedly representing as authentic works which had not in fact been created by these artists. (15) The experts who gave evidence had specific knowledge of each of the artists who pursued the legal proceedings against Gant. Of the experts involved, one had conducted years of research on Blackman, curating an exhibition and catalogue of his work in 2006. Another expert was an honorary fellow at the University of Melbourne, art historian and curator who had known Blackman personally since 1967, and who curated an exhibition using the artist's works. The final witness was Associate Professor Robyn Sloggett, who also gave evidence in the present proceedings, and who has general experience in authentication and conservation. (16)

ART HISTORICAL ANALYSIS

This is a more subjective and contextual type of evidence, and usually involves an investigation of the artist's genre, where the artist worked, who sold their works, whether it is possible the work was completed at a particular date and in a particular location. (17) The art historical evidence is read alongside the known facts of the artwork, and must be consistent with the work's provenance. Nail says that artists, their survivors (widows, widowers and offspring) and market professionals who are experts in the artist's oeuvre can authenticate works, but there are often variations in the standard used which leads to doubt and uncertainty. (18) This variable standard is necessarily an issue in art authentication cases, particularly when there is conflicting expert opinion. (19)

Alongside the presentation of contextual evidence, visual examination readings often take place. A visual examination is an analysis of how the work was made. It involves examining, by means of tools such as microscopes and raking light, (20) the materials used to create the work, such as the frame, canvas, paints and the way in which these are applied onto the canvas. Other methods include using ultra-violet lights to identify varnishes, infra-red light to view layers under the top layer such as under drawings, and X-rays to view the structure of the under layer. (21) The purpose of visual examinations is to determine how the work was produced, and whether this is consistent with the artist's known practice. Associate Professor Robyn Sloggett, the prosecution witness in Gant, asserts that the work's story and the physical evidence of the history of the work, should align with the way materials are known to behave over time. (22)

SCIENTIFIC ANALYSIS

It is, of course, easier to establish the inauthenticity of art works where an anomaly is present, such as the existence of a paint pigment not available at the time when the artist supposedly painted the work, though this line of analysis does become more difficult in the ever-growing contemporary art market owing to availability of common materials. However, scientific analysis can be used to determine specific questions about an artwork, such as its location and date, by examining pigments and identifying binding materials. Analyses can also determine how a material was manufactured, such as a pigment being hand or machine ground, and may determine the products used to create the paint. (23) Experts may also use technical imaging to visualise the physicality of the work, such as using X-rays for interior structure, infra-red imaging for underdrawings, or ultra-violet fluorescence for restorations on the work. (24)

R. v. GANT AND SIDDIQUE

R. v. Gant and Siddique illustrates the difficulty in providing evidence to the required criminal standard of'beyond reasonable doubt'. First heard by the Victorian Supreme Court in 2016, the case concerns alleged forgeries of three works, Big Blue Lavender Bay ('the Blue Painting'), Orange Lavender Bay ('the Orange Painting'), and Lavender Bay Through the Window, by renowned Australian artist Brett Whiteley (1939-1992).

In this case, Mohamed Aman Siddique and Peter Gant were charged with obtaining, and attempting to obtain, a financial advantage by deception. Gant sold the Blue Painting for $2.5 million in 2007, the Orange Painting for $ 1.1 million in 2009, and used Lavender Bay Through the Window as security for a $950,000 debt. The prosecution ultimately argued that Siddique, a conservator, forged three works in the style of Whiteley between 2007 and 2009, with art dealer Gant selling them as genuine works painted in 1988 by Whiteley.

The prosecution argued that Siddique used the undisputedly genuine View from the Sitting Room Window, Lavender Bay ('the Brown Painting') to draw upon Whiteley's techniques to create the alleged forgeries. The prosecution relied on experts Associate Professor Robyn Sloggett and Vanessa Kowalski from the University of Melbourne. Gant purchased the Brown Painting in March 2007, and delivered it to Siddique's studio the following month. The painting was allegedly stored in a locked room in the studio, where Siddique was alleged to have worked on the forged paintings. The prosecution used evidence from Guy Morel, a paper conservator, who took photographs of the interior room by reaching a camera over a partition from the outside of the room. The images showed various stages of paintings, and some included the Brown Painting in the same view. Morel gave the images to the police in 2007. The central issue was whether the works in the studio were the ones passed off as original Whiteleys.

The defence argued that Siddique made copies of the works, which he was entitled to do. Since his police interview in 2014, Gant maintained that he purchased the three original Whiteley works from Christian Quintas (Gant's agent) in the late 1980s. To support his theory, he claimed that he had a record of the purchase in his consignment book, and that he had an exhibition catalogue from 1989 that included the Orange Painting therein.

Following the prosecution's evidence in the Supreme Court, Justice Croucher gave the jury a Prasad (25) invitation. This gives the jury an opportunity to return a not guilty verdict without hearing further evidence from the defence, and is reserved for circumstances where a judge views a case as so weak that there is a chance a guilty verdict would be unsafe. The jury declined the invitation, and found both Gant and Siddique guilty of one count of attempting to obtain a financial advantage by deception, and two counts of obtaining a financial advantage by deception.

Gant was sentenced to a total of five years' imprisonment, with a non-parole period of two years and six months. Siddique was sentenced to three years' imprisonment, serving ten months immediately and the remaining (26) months suspended for three years. In May 2017 the case was appealed to the Victoria Court of Appeal (26) on the basis that the jury verdict was unreasonable or could not be supported having regard to the evidence. The Director of Public Prosecutions conceded the grounds of each appeal and in April 2017 the convictions were quashed.

ANALYSIS

In Gant, the prosecution provided circumstantial evidence relating to the provenance, art historical and scientific analysis in support of its theory that the works were forged.

PROVENANCE

Gant asserted that renowned collector Robert Le Tet had commissioned the Blue Painting from Brett Whiteley in 1988 through Quintas. (27) Gant sold the work to Mr Pridham through art dealer Anita Archer. Gant contacted Archer, who viewed the painting at Le Tet's office. Archer took photographs and sent them to Brett Lichtenstein, Whiteley's former framer, who identified the frame as his own. When concerns were raised with regard to authenticity, Archer asked for a document confirming the provenance of the painting. Gant produced a note purportedly signed by Le Tet, but which Gant later admitted was not actually signed by him. Le Tet denied purchasing any paintings directly from Whiteley or Quintas in 1988.

In support of Gant's account of the chain of ownership, the defence relied on evidence from his former gallery assistant, Rosemary Milburn, to confirm the contents of the consignment book. Milburn identified her handwriting and signature on a consignment note which indicated that Quintas had delivered three Whiteley paintings of the same name, size and colour as the alleged forgeries on 28th June 1988. The defence also argued on evidence from Jeremy James, a photographer who was involved with the creation of an exhibition catalogue for a show in 1989 titled A Private Affair. James had a printing business, which Gant engaged to photograph two Whiteley works for the proposed exhibition. James identified the catalogue, and the Orange Painting shown on a page therein. After Gant's business partner died, the exhibition was cancelled, so only a small number of catalogues were printed. James produced a proof of the catalogue, containing his own handwriting and his photograph of the Orange Painting. The Blue Painting was not included in the catalogue.

Professor Sloggett was unable to conclude that the forged works were authentic owing to an absence of verifiable provenance linking the alleged forgeries to Whiteley. In the prosecution's final address, Counsel implied that Milburn must have been honestly mistaken about her account, as she was required to give evidence on a note from 1988 and may have been influenced by the 'power of suggestion'. The prosecution again waited until the final address to broach James' evidence, and stated that he was mistakenly referring to a Whiteley painting from an Autumn 1988 catalogue, rather than the 1989 one. Justice Croucher criticised prosecuting counsel for failing to discredit James, Milburn and the consignment book when she had the opportunity to do so, either by way of cross-examination or providing alternative expert evidence in support of the prosecution's theory. This will be discussed in more detail below.

Clearly, documentation purporting to support a work's provenance must be approached with caution. People in the art world are aware of the importance of provenance, and those willing to dabble in circulating forged works onto the market will have no issue creating fake provenance. An example of this is the Myatt/Drew art fraud case in the United Kingdom, whereby Myatt created works, and Drew negotiated the sale.28 To create a watertight provenance, Drew produced many false documents to certify the works, such as entering hard copy files about the works into major British collection libraries and inserting false documents into otherwise legitimate artist catalogues. (29) Hence, the Gant case highlights the importance of a solid provenance in art fraud cases, and the dangers of failing to provide an alternative theory or disprove other provenance evidence.

ART HISTORICAL ANALYSIS

In Gant, both Sloggett and Wendy Whiteley, Whiteley's former wife, asserted that the artworks were inauthentic. Sloggett found that there was a lack of sufficient points of identification in terms of the techniques Whiteley was known to have used, and those found in the alleged forgeries. Sloggett and Wendy used their expertise and familiarity with Whiteley's works, but were attacked by defence counsel.

Wendy had been Whiteley's wife for 27 years and had worked and lived with him for decades. She currently controls his estate, including copyright to his works. However, at the time the alleged forgeries were said to have been created by Whiteley, she was his ex-wife and not living with him. Wendy was often asked to 'authenticate' works by Whiteley, owing to her familiarity with his works. However, the three paintings were allegedly created in 1988 and 1989, when she was not involved in Whiteley's life. Wendy did not directly state that the Blue Painting was a fake when she was examined in 2008, but did note that it was a "bad hair day Whiteley". Some argue that to qualify as an art expert and give evidence at trial, one must obtain a formal academic qualification in a particular area of study. (30) This may be too restrictive, especially when family members such as spouses, widow(er)s, or children oversee the artist's estate, and may be qualified to give evidence in relation to an artist's oeuvre. Wendy arguably falls into this category of expert.

The prosecution also argued that the timing of the framing coincided with the sale and attempted sale of the painting. Whiteley was known to use water-gilded frames for his Lavender Bay series. Siddique ordered three frames from Antonio Rincon during this period; all of which were water-gilded in the style previously supplied to Whiteley. Whiteley's former framer Brett Lichtenstein trained Rincon in framing, and in particular in producing the water-gilded frames with which he had supplied Whiteley. The dimensions of the frames ordered by Siddique were approximately the same size or larger than the alleged forgeries. Rincon was asked only to provide the frames, and was not asked to frame any paintings.

SCIENTIFIC ANALYSIS

The prosecution used infra-red images of the underdrawings of the Orange and Blue Paintings to argue that they were at least similar to the paintings in progress seen in photographs taken by Morel in Siddique's studio. Justice Croucher noted that this evidence was limited as the prosecution had failed to use photogrammetry to line up the underdrawings in both sets of works. (31) Providing clear scientific evidence of the same or similar under drawings may have been strong enough evidence to suggest that Siddique created the drawings, which is consistent with the prosecution theory that they were passed off by Gant as Whiteleys.

Unfortunately Professor Sloggett was unable to provide scientific evidence as to the age of the paintings, which was a pivotal evidential issue. Gant and Siddique alleged that Whiteley painted all three works in 1988 and 1989, whereas the prosecution asserted that Siddique forged the works in 2007. Owing to the subjectivity of expert evidence in relation to the authenticity of a work, scientific analysis has incredible force in proving or disproving facts objectively. Had the prosecution obtained cogent scientific evidence accurately dating the paint before or after 2007, this direct evidence would have either proved or disproved the assertion that the works were forged.

CONVICTIONS QUASHED: THE COURT OF APPEAL JUDGMENT

Gant and Siddique were found guilty in the Supreme Court and sentenced in November 2016; however their sentences were stayed, as the Judge believed the guilty verdicts could be quashed on appeal. On appeal in the Court of Appeal in April 2017, the Director of Public Prosecutions (the DPP) stated that upon considering the grounds of appeal, each of the grounds of each of the applications would be conceded. The DPP stated that there was a significant possibility that innocent men had been convicted, and requested that they should be acquitted. (32) The Court of Appeal accepted the DPP's request, and quashed Gant and Siddique's convictions.

The prosecution theory had been that Siddique had created the three paintings between 2007 and 2009 in the style of Whiteley and that these had been sold by Gant with the intent to pass them off as genuine Whiteleys. In order for the jury to find Gant and Siddique guilty, it would need to have drawn the conclusion that, beyond a reasonable doubt, the works did not exist before 2007. Given that the defence provided evidence from Milburn and James that the Blue Painting and the Orange Painting existed in 1988 and 1989 respectively, the jury could have convicted only if they were satisfied both witnesses were entirely mistaken. (33) The DPP conceded that there was no evidence to support this conclusion.

EVIDENCE FROM JAMES AND MILBURN

In the Supreme Court the prosecution said that James and Milburn were mistaken about their evidence. In relation to Milburn, the consignment note supported her recollection, and the Court of Appeal of the Supreme Court found that there was no reason to reject her evidence that the entry was in her own writing. In relation to James' evidence, both the running proof and the catalogue supported his evidence about the Orange Painting, thus being consistent with his account of photographing both that painting and the Blue Painting. The prosecution failed to provide expert analysis of Milburn's consignment note or James' running proof and the catalogue, and instead discussed this evidence while presenting closing submissions. The prosecution similarly did not challenge evidence given in relation to the cancellation of the A Private Affair exhibition, thus failing to provide reason for the limited number of catalogue prints. Owing to the defence evidence purporting to prove the existence of the paintings before 2007, and in the absence of contrary prosecution evidence, the Court of Appeal of the Supreme Court said that there was no basis for the jury to have reached a guilty verdict. (34) The decision to quash the convictions based on the above analysis makes abundantly clear the difficulties of using largely circumstantial evidence when prosecuting art fraud cases to the required criminal standard of beyond a reasonable doubt.

LEGAL STATUS OF THE PAINTINGS

Following the trial, the Orange Painting and the Blue Painting were returned to their respective owners. (35) What remains following the decision to quash the sentences is the legal certainty of the Whiteley works, and whether the judgment will have weight in the art world.

Both the Supreme Court Criminal Division and the Court of Appeal failed to comment on the authenticity of the works. By contrast, in the Australian art fraud case Liberto Judge R.G. Williams in the Victoria County Court said that the jury's guilty verdict included a finding that the accused had painted the forged works in question, thus creating certainty about the legal status of the works. (36) There is no corresponding certainty in the Gant case, as the Supreme Court clearly stated its position by refusing to make a determination as to the works' authenticity.

Whether the art market chooses to accept a finding of authenticity is another issue in itself. This is evidenced in the Frick Museum's rejection of the Rembrandt Research Project's initial determination that its painting The Polish Rider is not a genuine Rembrandt, and it continues to display it as such. (37)

After Gant and Siddique's sentences for fraud were quashed, time will tell whether the works will be tainted due to the high-profile nature of the case. The works could either diminish or increase in value, or have no value at all.

SOLUTIONS

The author's opinion is that the evidential problems arising in Gant were due to systemic problems not uncommon in art fraud disputes. In order to avoid similar problems in the future, changes need to be made to the way the law and the art market approach art crimes. Criminologists Chappell and Polk opine that the lack of charges and convictions in Australia suggests that art crime is 'dark figure' crime, meaning that it is not found in official statistics owing to the fact that there is no category of'art crime' or 'art fraud'. (38) They also suggest that there are no financial incentives for victims to report crimes as there are with other types of property. This is due to the financial recovery through loss of insurance, and the fact that there is more of a reason not to report such a crime as it may cause the work to diminish in value.

It is evident from the Gant case that there are a number of difficulties that make prosecuting art fraud difficult, in particular presenting evidence of fraud supported by lack of provenance, and definitive scientific and art historical evidence. Gyorffy Q.C., Crown Prosecutor at the committal hearing, noted the difficulties of bringing the case into the legal system, owing to the reliance on expert evidence rather than empirical evidence. (39) He specifically mentioned the difficulty of accepting art historical evidence based on Wendy Whiteley's and Sloggett's knowledge and experience rather than empirical data. The author suggests that more can be done to overcome the difficulty in charging and prosecuting art fraud, and although there is not one simple answer, there are a number of legal and non-legal ways to assist in preventing and prosecuting such crimes.

SENTENCING FRAUDSTERS

Although sentencing was not a direct issue in Gant, the sentences handed down by the Supreme Court Criminal Division nonetheless raise important questions about the appropriate lengths of prison terms handed down to art fraudsters. Some may view imprisonment as a harsh sentence, given that there is no human victim of art fraud, and no one has been physically harmed. However, given that experts are increasingly afraid to speak about inauthentic works causing a lack of detection, coupled with the potentially high reward of a successful sale, current Australian sentences may not be a great enough risk for the ample reward. Hence, the author suggests that sentencing guidelines could assist judges in determining a fair sentence in relation to art crime specifically. An issue with arguably lenient sentencing currently exists, not only evinced in the Gant case, but also in other Australian and also European cases. (40)

There are only two other Australian art fraud cases to compare with the sentences handed down in Gant: Liberto and O 'Loughlin. In O Loughlin the defendant was sentenced to three years, which might be considered lenient given the deceptive conduct he had engaged in and the police resources expended in convicting him. (41) Similarly, the Libertos were sentenced to a cumulative total of three years, of which two years and three months were suspended. Criminologists Chappell and Hufnagel opine, and the author agrees, that these sentences fail to convey a strong deterrent to those engaging in art fraud. (42) This frustration is shared by German counterparts following the comparatively lenient sentences given to Wolfgang Baltracchi, and Itzhak Zarug and Moez Ben Hazaz. In 2011 Baltracchi was sentenced to six years' imprisonment for forging fourteen works that sold for $45m. In March 2018 Zarug and Hazaz were sentenced for 32 months and three years respectively, and were ordered to pay 1m [euro] in damages, for running a cartel that made 2.53 [euro] selling forged works, the police having seized more than 1,500 works. (43) Although these sentences of imprisonment are relatively robust considering that no one was physically harmed, they do not act as a strong deterrent when there is a chance of making millions of dollars from a successful sale, and a low likelihood of the works being detected as fake.

Some propose that in order to assist in tackling art fraud the art market should self-regulate, given the relative opacity and lack of regulations. (44) As art experts are not legally regulated, self-regulation of the art market, such as creating standards for art authenticators, may assist in resolving disputes. Such standards have already been recommended in detail by the Authentication in Art Congress. (45)

PROTECTING EXPERT OPINION

Gant highlighted the not uncommon occurrence of several highly qualified art professionals reaching differing conclusions in relation to the authenticity of a work. A possible non-legal solution to counter art fraud might be to form art attribution panels made up of experts who can determine whether a work is forged or genuine, such as the Andy Warhol Art Authentication Board, Inc ('Warhol Authentication Board'). This would have been helpful in Gant as witnesses gave conflicting evidence in regard to the works' authenticity. Had a Whiteley Authentication Board been established with a catalogue of the artist's works, potential purchasers could have requested it to identify a work as a Whiteley.

However, authenticators run the risk of being vulnerable to litigation for mistakenly attesting a work, or making a decision contrary to an owner's liking. As such, the Warhol Authentication Board closed its authentication operations, joining other authentication boards such as the Pollock-Krasner Foundation, the Basquiat Authentication Committee, the Rembrandt Research Project, and the Roy Lichtenstein Foundation. Jack Flam, President of the Dedalus Foundation, highlights the asymmetry in the system; even with regard to professionals having issues conducting business with certain dealers, and calls for legislation to protect free speech for scholars and writers of catalogues raisonnes. (46) Similarly, trends in statute and case law suggest the need to protect authenticators from litigation, (47) as many fear that authenticators are being deterred from voicing unfavourable professional opinions. (48) John Elderfield, former chief curator at the Museum of Modern Art, reminisces about the days when he could give his professional opinion without fear of being sued. (49) Litigation anxiety is very alive in the art world, and more can and should be done to safeguard an expert's freedom of opinion.

Art experts play a central role in the art market and, to a certain extent, act as a bridge between both sellers and buyers of art, and public and private individuals. Therefore, their opinion must be made freely and independently. With the threat of litigation hanging over their heads, experts may be reluctant to give an opinion, which in turn risks fuelling the trade in inauthentic art, as fraudsters will have no fear of their works being identified as such. Even though it is important to protect the opinions of experts, the author's view is that there are also concerns in relation to art professionals who hold themselves out as experts and give unqualified opinions. Not only do such 'experts' lack relevant qualifications, they may also have a financial incentive (by way of commission) to declare a work to be authentic. It might be possible to overcome these concerns by requiring experts to disclose financial interests, or by the imposition from within the trade of self-regulated standards for art authentication professionals. Perhaps a pool of recognised and pre-approved experts could have been of use in determining the works' authenticity in Gant, which is a rule proposed in the Court of Arbitration for Art. (50)

CONCLUSION

In Gant the prosecution had the difficult task of using circumstantial evidence to prove that Gant and Siddique had committed fraud. The case illustrates the difficulty in investigating and prosecuting art fraud cases in a contemporary environment, where it is nearly impossible to determine the authenticity of works with complete certainty. Gant highlights the fissure in current legislation, and the need to codify art fraud in legislation in order to tighten up on such art crimes. Although there is certainty about the legal status of the charges against Gant and Siddique, which were subsequently quashed, there is no corresponding certainty as to the status of the authenticity of the three works, which remain in legal limbo.

Nina Lala, Barrister and Solicitor, New Zealand; the author has successfully completed the Diploma in Art Law, Institute of Art and Law.

(1) See Don Thompson, The $12 Million Stuffed Shark: The Curious Economics of Contemporary Art (St Martin's Griffin, New York, 2008).

(2) Rv. Gant and Siddique [2016] VSC 662; [2017] VSCA 104.

(3) Section 82, Crimes Act 1958 (Vic.).

(4) Robyn Sloggett 'Considering Evidence in Art Fraud' in Duncan Chappell and Saskia Hufnagel (eds) Contemporary Perspectives on the Detection, Investigation and Prosecution of Art Crime: Australasian, European and North American Perspectives, (Taylor and Francis, 2014) at 121-133.

(5) Section 55, Evidence Act 2008 (Vic.).

(6) Ibid., s. 56.

(7) Ibid., s. 76.

(8) Ibid., s. 79.

(9) Makita (Australia) Pty Ltd v. Sprowles [2001] 52 N.S.W.L.R. 705 at [85],

(10) Ibid.

(11) Barbara Nageli, 'Das Auge ist der Richter? Der Kennerblick in der Kritik', in: Ulf Bischof (ed.), KUR (Kunst und Recht), Journal fur Kunstrecht, Urheberrecht und Kulturpolitik, 5/2012 at 95.

(12) Stephen Nail, 'An Australian Art Dealer's Perspective on Art Crime' in Chappell and Hufnagel, above note 4, 101-118 at 105.

(13) Sloggett, above note 4, at 127.

(14) Linda Tyler, 'Keeping it Real: Building an Exhibition History for some Fake Frances Hodgkins' Paper presented at New Zealand Art Crime Symposium: Provenance Matters, convened by the New Zealand Art Crime Research Trust, 22 Sept. 2018, Wellington.

(15) Blackman v. Gant [2010] V.S.C. 229.

(16) See Robyn Sloggett, 'The Truth of the Matter: Issues and Procedures in the Authentication of Artwork' (2000) V Art Antiquity and Law 295.

(17) Above note 4, at 128.

(18) Above, note 12 at 108.

(19) See for example Blackman v. Gant, above, note 15, in which multiple experts gave conflicting evidence.

(20) When light is shone on to a surface at a 90-degree angle.

(21) Above note 4, at 130.

(22) Above note 4, at 131.

(23) Above note 4, at 132.

(24) Nina M. Neuhaus, 'Art Authentication: Protection of Art Experts from a Swiss Perspective' (2014) XIX Art Antiquity and Law 59 at 66-67.

(25) See R. v. Prasad (1979) 23 SASR 161.

(26) Grant and Anor v. The Queen [2017] VSCA 104.

(27) Christian Quintas was Whiteley's agent and is also deceased.

(28) Andrew Buncomb, 'Art Forger Convicted of "Brilliant" Fraud Art Forgery' Independent, 13 Feb. 1999: <https://www.independent.co.uk/news/art-forger-convicted-of-brilliant-fraud-artorgery-1070405.html>

(29) Duncan Chappell and Kenneth Polk 'Fakers and Forgers, Deception and Dishonesty: An Exploration of the Murky World of Art Fraud' (2009) 20(3) Current Issues in Criminal Justice 393 at 403.

(30) See John Daab 'Daubertizing the Art Expert' (2012) 1 Journal of Art Crime 21.

(31) R. v. Gant and anor [2016] VSC 662, [23].

(32) Above, note 26 at [110].

(33) Above, note 26 at [105].

(34) Above, note 26 at [109].

(35) The whereabouts of the third painting remains unknown.

(36) R. v. Ivan Liberto and Pamela Yvonne Liberto [2008] VCC 1372.

(37) The Rembrandt Research Project later accepted the work as an authentic; see E. van de Wetering (ed.), A Corpus of Rembrandt Paintings: the Small Scale History Paintings, Vol. V (Dordrecht, Springer, 2011). p. 535 and pp. 540-541

(38) Above, note 29, at 408.

(39) Michaela Boland, 'Whiteley Case Shows Courts Unfamiliar with Expert Art Evidence' (5 May 2017) <https://www.theaustralian.com.au/arts/visual-arts/whiteley-case-shows-courts-unfamiliarwith-expert-art -evidence/news-story/ae6e65d80c 189ef5c631255e02900170>.

(40) See R v. Ivan Liberto & anor [2008] VCC 1372.

(41) Above, note 28.

(42) Duncan Chappell and Saskia Hufnagel 'Case Studies on Art Fraud: European and Antipodean Perspectives' in Duncan Chappell and Saskia Hufnagel Contemporary Perspectives on the Detection, Investigation and Prosecution of Art Crime: Australasian, European and North American Perspectives, (Taylor and Francis, 2014) at 57-77.

(43) Philip Olterman 'Russian Avant-Garde Forgery Case Ends in Convictions and Disappointments' Guardian, 16 March 2018,<https://www.theguardian.com/world/2018/mar/l 6/russian-avantgarde-forgery-case-conviction -german-trial-art-market>

(44) Above, note 41; Anne Laure Bandle 'Fake or Fortune: Art Authentication Rules in the Art Market and at Court' (2015) 22 International Journal of Cultural Property 379.

(45) Authentication in Art, Art and Law Work Group, 2014, 'The Technical Requirements for Valid Expert Opinion Reports on the Authenticity of Paintings for Use by the International Art Community Privately and in Judicial Proceedings Determining the Authenticity of Paintings as a Matter of Law', <https://authenticationinart.org/pdf/Authentication-In-Art-Congress-May-2014 Recommendations-of-Art-and-Law-Work-Group_Official-Release.pdf>

(46) Above note 41 at 73.

(47) See New York State Act s.1229-A-2015; 'Judgment Against Max Ernst Expert Werner Spies Overturned in Appeal', Art Newspaper, 9 Dec. 2015 </ http://authenticationinart.org/pdf/ artmarket/Judgment-against-Max-Ernst-expert-Werner-Spies-overturned-in-appeal-The-ArtNewspaper.pdf>

(48) New York City Bar 'Help Re-incentivize Art Authenticators and Restore Integrity to Art Transactions in New York', 17 March 2017 <https://www.nycbar.org/media-listing/media/detail/ advocacy-alert-help-re-incentivize-art-authenticators-and-restore-integrity-to-art-transactions-innew-york>

(49) Patricia Cohen, in Art, Freedom of Expression Doesn't Extend to is It Real?" New York Times, 19 June 2012 <https://www.nytimes.com/2012/06/20/arts/design/art-scholars-fear-lawsuits-indeclaring-works-real-or -fake.htmi>

(50) Netherlands Arbitration Institute and Authentication in Art, AiA/N Al Court of Arbitration for Art for Art Adjunct Arbitration Rules, Point 10--Experts, 28(7), and Explanatory Notes, s10.2.
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