Problem
Dryandro Dimonte (D) has been charged with fraud in relation to the sale of a painting to Clara (C) for $1M in April 2019. According to the prosecution, D knowingly and falsely misrepresented the painting to C as a Picasso, significantly inflating its price.
The prosecution first call C who testifies that she had met D several times at art functions. She knew him as an art dealer and let him know that she was looking for an affordable Picasso painting. He got in touch in April 2019 saying he knew that a Picasso was for sale at a very low price as the seller wanted a quick sale without any publicity. The transaction was then completed very quickly. The prosecution tendered a copy of the receipt, apparently signed by D, indicating that C had paid D $1M on 28 April 2019 for 'blue man oil painting'. C concedes that there is no reference to Picasso on the receipt.
C then testifies that she became suspicious when she had a Picasso expert, Ulysses Wong (UW) over for dinner a week later and showed him the painting. C said that UW looked closely at the painting for five minutes and then said, 'I'm afraid this is not a Picasso'. At this point, counsel for D objects and P counsel apologises adding, 'We will be calling UW'.
C then testifies that, the day after UW came for dinner she phoned D, recording the conversation. D's counsel objects and the trial judge holds a voir dire. In the jury's absence, the prosecution submits that, while it was strictly illegal for D to record the telephone conversation (under Surveillance Devices Act 2007 (NSW)), the evidence should be admitted because it proves that D knew the painting to be a forgery. Counsel for D submits that the recording contains no proof that the painting is a forgery, let alone that D knew it to be a forgery. Counsel for P submits that, in the telephone conversation, C asks D, 'Why did you sell me a fake Picasso?' D replies, 'It is what it is'. Counsel for D says, 'Where is the admission? D merely uttered a self-evident truth. At best this is equivocal.' The trial judge comments, 'I think we all know what that expression means - it means, you've suffered a loss, live with it. I think in the circumstances that's an admission. I'll let this in.'
Counsel for P then says to the trial judge, 'There may also be an issue about the appraisal. C found this several days later among the sale documentation D provided. It may have been included by D inadvertently.' P counsel hands up a copy of a handwritten document to the trial judge. Dated 30 March and addressed to Dryandro Dimonte, it is titled 'Appraisal of Blue Man oil painting' and reads 'competent mid-century copy of early Picasso; unknown provenance - $15,000 to $50,000.' It is unsigned. Counsel for D objects, 'Your Honour, we submit this document is of no value to the jury as there is no evidence of how it originated. Ironically, it is this document that is of unknown provenance, and could well be a forgery.' The trial judge responds, 'On the other hand, it could be what it appears to be. I'll let it in.'
The jury returns and the recording and the appraisal are admitted.
P counsel next call UW. UW testifies that he is an art lover and commentator and has been writing about 20th century art in books and periodicals for several decades. The trial judge says, 'Yes, I really enjoy your articles in the London Review of Books, particularly on the recent early Picasso retrospective.' P counsel says to UW, 'Now, can I take you to the evening of 5 May. I believe you were having dinner with C that evening. Can you tell us what happened?' UW testifies, 'Before dinner, while we were having cocktails, C told me she has something to show me. In the dining room, I see a very nice little piece redolent of Picasso's blue period. Quite a competent imitation of Picasso's style, but the paint just wasn't quite right. Something about the colour or the thickness of the brush strokes. Of course, you'd need a materials analysis to confirm it. I said to C that unfortunately it was not a genuine Picasso.'
The defence calls no evidence. In the course of summing up, the trial judge comments:
"We have heard C's version of events, both regarding the sale and the events that followed it. But we have heard very little from D, other than the recording of their telephone conversation a few days later. D has chosen not to testify. The Crown says this recording contains an admission while counsel for D characterises it as a dismissive remark, equivocal at best. Now you might think that D could shed some light on all of these events. You might be wondering why D is avoiding entering the witness box. You might agree with Lord Mansfield that 'all evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted', and that the Crown's case may be easier to accept in the absence of D's express denials. This approach may appear sensible. However, it is my duty to tell you that you should not reason that way. It would be contrary to D's right to silence."
i. Identify any evidentiary issues arising and discuss how they would be resolved under current law.
ii. Select one or more of the issues. Do you agree with the law's treatment of the issue(s)? Justify your answer by reference to the purposes served by evidence law and any other relevant policy considerations.