Pubdate: Thu, 07 Feb 2002
Source: West Australian (Australia)
Copyright: 2002 West Australian Newspapers Limited
Contact:  http://www.thewest.com.au
Details: http://www.mapinc.org/media/495
Author: Bronwyn Peace
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

DEAD MAN'S ASSETS GO IN DRUG CASE

Irrational Presumption Of Guilt, Says Dissenting Judge

The State Full Court has upheld a decision to confiscate almost $250,000 of 
assets owned by an accused cannabis grower despite the fact he died before 
getting the chance to defend himself.

Lawyers representing the estate of Stephen Retteghy claimed it was wrong to 
make a posthumous finding of guilt against him after he entered pleas of 
not guilty to drugs charges.

Mr Retteghy's assets, including a two-hectare Guilderton property and a 
Honda Prelude car, were forfeited under the old Crimes (Confiscation of 
Profits) Act in a judgment by Supreme Justice Graeme Scott in August 2000.

In an appeal, Eric Heenan QC, representing Mr Retteghy's estate, argued the 
legislation was unconstitutional and afforded Mr Retteghy no avenue of 
appeal against conviction.

In a 2:1 decision of the Full Court yesterday, Justices Neville Owen and 
Christopher Steytler rejected the submissions, saying Mr Retteghy was found 
guilty only for the purposes of the confiscation legislation.

The dissenting judge, Justice Henry Wallwork, said he would allow the 
appeal because the case was based on an irrational presumption that Mr 
Retteghy was guilty due to the fact he was dead. Mr Retteghy, of Hillarys, 
was charged after police raided his Guilderton property in April 1996 and 
found almost 600 cannabis plants, more than 30kg of harvested cannabis and 
a diary detailing drug sales.

Mr Retteghy pleaded not guilty to cultivation of cannabis with intent to 
sell or supply and possession of cannabis with intent to sell or supply and 
was committed to stand trial, but died of cancer aged 67.

Under the 1988 Act, Mr Retteghy, as a dead man, had the same status as an 
accused person who had absconded. In the eyes of the law, this meant he 
could be considered guilty as charged.

Once this was established, the crown applied for a forfeiture order. Before 
allowing the order, Justice Scott had to be satisfied beyond a reasonable 
doubt that Mr Retteghy was guilty as charged.

In his appeal, Mr Heenan said the case meant that State Parliament had the 
power to convict a defendant before being tried by a court of law.

Justices Owen and Steytler denied this claim. "There is here no finding of 
guilt by Parliament itself, nor any direction to the Supreme Court to find 
anyone guilty," they said. "There is only a direction, to the Supreme 
Court, to make a forfeiture order, where it considers that to be appropriate."

Ian Jones, of the Director of Public Prosecutions confiscation team, told 
The West Australian the judgment would have relevance to the new proceeds 
of crime confiscation laws but would not directly affect the new legislation.
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