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)
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 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)
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)