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. - --- MAP posted-by: Terry Liittschwager