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Two Victorian men have been acquitted of creating and selling Brett Whiteley paintings that they had earlier been found guilty of faking.
Prosecutors today unexpectedly conceded the appeals against convictions by art restorer Mohamed Aman Siddique, 67, and art dealer Peter Stanley Gant, 61.
"There is a significant possibility that innocent men have been convicted and each of them should accordingly be acquitted," Daniel Gurvich QC, representing the crown, told the Court of Appeal.
In May last year, the pair was found guilty of obtaining and attempting to obtain financial advantage by deception by selling some paintings which resembled the late artist's Lavender Bay series.
The men were sentenced in November, but the sentences were stayed because the trial judge believed the guilty verdicts could be quashed on appeal.
Justice Michael Croucher noted there was "cogent evidence" that supported Gant's account that he had purchased the three paintings in 1988.
Gant was sentenced to five years in prison, with a minimum of two-and-a-half years, while Siddique was sentenced to three years, with 10 months to be served immediately and 26 months suspended for three years.
At trial, prosecutors alleged Siddique created three fake Whiteley paintings in his Collingwood studio between 2007 and 2009 and that Gant facilitated the sale of two of them.
But prosecutors today said they had considered the grounds of appeal, which referred to the evidence of former gallery assistant Rosemary Milburn and Jeremy James.
Both gave evidence that the defence said contradicted the prosecution case.
"Each of the grounds in each of the applications would be conceded," Mr Gurvich said.
"The matter was given serious consideration over a number of weeks."
Justice Mark Weinberg said the Court of Appeal was not bound by the Crown's concession.
But having analysed the appeal and its submissions, the court accepted the Crown's position that the guilty verdicts were unsafe and should be quashed.
"The Crown's concession is of course welcome," Justice Weinberg said.
The appeal judge also said he, Justice Phillip Priest, and Justice Stephen McLeish would not comment on the prosecution case against Gant and Siddique.
"We do not propose at this time to express any criticism about the decision to pursue these charges," Justice Weinberg said.
Justice Weinberg conceded while there were thousands of criminal trials where juries had convicted the right person, in this case, the jury did not get it right.
"It is sometimes said that juries 'always get it right'. Sadly in this particular instance, that seems not to have been so," he said in his written decision.
"This case is a rare and almost unique instance of the system having failed in that regard.
"It is fortunate that the mechanism of the appeal to this court, coupled with the fairness of the prosecuting authorities in recognising that failure, has resulted in the rectification of that error."
Whiteley, one of Australia's most celebrated artists, died in 1992 aged 53.
Wendy Whiteley, the former wife of Brett Whiteley, told the ABC she could not comprehend how the decision to quash the conviction had happened.
"I'm speechless," she said.
AAP/ABC
Topics: visual-art, arts-and-entertainment, contemporary-art, courts-and-trials, law-crime-and-justice, melbourne-3000, vic
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