Pubdate: Fri, 03 Dec 2004
Source: New Zealand Herald (New Zealand)
Copyright: 2004 New Zealand Herald
Contact:  http://www.nzherald.co.nz/
Details: http://www.mapinc.org/media/300
Author: Geoff Cumming
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)
Bookmark: http://www.mapinc.org/meth.htm (Methamphetamine)

GUILTY UNTIL PROVEN INNOCENT

Call it the Cleven clause: a law change inspired by the justice
system's failure to snare the money of a notorious alleged drug lord.

Peter "Pedro" Cleven was the Headhunters gang member accused of making
a fortune from drugs including cannabis and methamphetamine. Described
by police as a kingpin of organised crime, he boasted, in bugged
conversations, of dealing "a hundred pound of dak a week" and making a
million dollars a year from the harder stuff.

When they arrested him on supply charges in 2000, police used the
Proceeds of Crime Act to freeze his assets, including a Titirangi
mansion, Harley-Davidson motorbike, Mercedes-Benz convertible and
swanky powerboat.

But two years later, they had to hand it all back when the 39-year-old
was acquitted after two incident-laced trials.

Cleven provides just one example of long-standing police complaints
about gang bosses who remain at arm's length from offending but reap
the rewards. There is considerable political mileage to be gained from
stopping that happening.

This week, Justice Minister Phil Goff announced legislation to make it
easier to confiscate the assets of suspected criminals - even without
a conviction. A bill is being drafted allowing the Crown to have
assets frozen if it can persuade a High Court judge it has "reasonable
grounds" to suspect the assets were criminally acquired.

Assets can then be confiscated if the Crown can show that the person
benefited from crime in the previous seven years. Only a civil
standard of proof is required: on the balance of probabilities (a
51:49 per cent likelihood) rather than the criminal standard of beyond
reasonable doubt.

Suspects who want to dispute confiscation must prove to the court that
their assets did not come from crime. If they can't, their entire
estate may be forfeited. So much for innocent until proven guilty.

A new asset recovery unit, made up of police and investigative
accountants, will pursue civil forfeiture cases, with powers to
compare income declared in tax returns with a person's apparent
wealth. The new unit will work independently and could go after assets
in cases that police have no intention of prosecuting.

Until now, they have needed a conviction to recover assets under the
Proceeds of Crime Act - a law that has proved far from satisfactory.
Criticised for recovering less than $10 million in 11 years, police
say it is weighted in favour of the accused.

Hawkes Bay farmer Shaun Allen would argue differently. The first to
lose his property under the act in 1993, after police found more than
1000 cannabis plants on his Esk Valley farm, Allen continues to
maintain his innocence and is fighting for a pardon. He brought the
bush-covered land less than six months earlier, and says the cannabis
plots had been there for many years. But his conviction and 18-month
sentence for growing allowed the Crown to take his land. Under the new
proposal, it wouldn't need a conviction.

Goff says the measure is aimed at organised crime and gang bosses "at
the top of the criminal hierarchy" who continually evade prison. He
looked at civil confiscation laws in Ireland, Britain and several
Australian states before opting for the New South Wales version.

Police see obvious benefits and, as the latest of Goff's tough-on
crime initiatives, it will do the Government no harm in appeasing the
tougher sentencing advocates.

Goff says such laws have caused little controversy overseas. But then,
who is going to speak out for gang bosses and other scumbags whose
currency is violence, intimidation and the misery of drugs? He's
betting on similar public sentiment here: if hardened crims lose all
they've got, it serves them right.

Until now, however, we've always expected the police to prove it in
court, and beyond reasonable doubt. Now they won't have to. With
insufficient evidence for a conviction, police can approach a High
Court judge and offer a lower standard of proof to seize assets. The
suspects may not even know they face action.

Sydney lawyer Lesly Randle explains that under the New South Wales
law, assets are often initially frozen under ex parte orders - issued
without the defendant or his lawyer being present - on the premise
that assets would "disappear" if suspects got wind of an
investigation.

>From then on, things get even more draconian, say lawyers and
academics. Suspects wanting to dispute confiscation cannot use frozen
funds to engage a lawyer - another protective measure. Goff says
assets can be "considerably devalued through lavish defence cases".

Overseas, he says, up to 90 per cent of seizures are not challenged,
suggesting crims accept the game's up. But critics say defendants face
an uphill struggle to get assets excluded from a restraint or
confiscation order.

Scott Optican, senior lecturer in criminal law and procedure at
Auckland University, says unless all income and assets are lily-white,
suspects won't risk fighting to get them back.

"Why would you front up to some Government office and say `you took my
hundred grand but 50 per cent of it was derived honestly'. You'd have
to be some kind of psycho - it's tantamount to an admission of guilt.

"It's a risk-shifting exercise, a burden of proof-shifting exercise,
which basically makes it easier to go and get assets and may have some
collateral benefits such as getting you to fess-up.

"And who's going to object to it?"

Brisbane criminal lawyer Ian Dearden, president of the Queensland
Council for Civil Liberties, says the measure has caused some
appalling miscarriages of justice.

"Most of the people being screwed are people who by and large have
skirted around the edge of big-time behaviour rather than the big-time
criminals. But that doesn't necessarily mean they have acquired
property unlawfully or it's the proceeds of crime.

"It's classically opinion-poll-driven legislation that seeks to wipe
out the rights of people who legitimately own property by seizing that
property on what's often no more than a suspicion. The onus is then on
the owner of that property to prove otherwise.

"Innocent people get burned but they are not necessarily people who
get a lot of sympathy."

Randle says it's the wives and children who suffer most from asset
seizures, often losing their home and means of transport. "Maybe seven
times out of 10, the Government has every right to take their home,
but a lot of wives I deal with wouldn't have a clue what their
husbands have been up to.

"It can be very hard to prove income was legally derived without
documented evidence and you have to go back six years [under the NZ
proposal, seven].

"You can apply for exclusion orders for reasonable living expenses but
if the woman has done one thing wrong in her life she won't get the
property excluded."

It's not just gang members' families who can be affected. The law is
often used against white-collar crime, says Randle. In New Zealand,
the proposed threshold will be unexplained assets worth more $30,000.

The measure will dampen criticism of the existing law with its poor
recovery record. New South Wales has raked in $84 million since 1995,
nearly 10 times the New Zealand figure. Police here believe the local
law will reap $20 million a year.

Acting national crime manager Bill Peoples says police struggle to
convict those who distance themselves from crime but benefit from the
proceeds.

"There's nobody I know who owns a house or asset who can't explain
where the money came from to buy it."

White-collar fraud is a legitimate target, says Peoples. "We wouldn't
want to restrict it to drug crime - there's other forms of serious
crime, particularly if a person has defrauded the state in a serious
way."

But Phillip Morgan QC, convenor of the Law Society's criminal law
committee, is concerned that the new powers will invite police to
"take the easy route" rather than go for a conviction.

"They may look at somebody they think is a drug dealer then think
`Gosh, why not just seize his assets' and, if we get some evidence
he's been dealing, well and good.

"It' a very large departure from the principles of
justice."

Morgan agrees with Randle that it's likely to be used to attack
"ordinary members of the public who are easier to get" rather than
organised crime.

He says police already have sufficient powers under the existing act
but have been more focused on putting crims behind bars.

After all, did Pedro Cleven really walk away from his brush with the
justice system laughing all the way to the bank?

He claimed the trials cost him the Mercedes-Benz, the 700hp powerboat
and a rental property. His prized Harley was sold from under him to
pay part of a disputed $175,000 legal bill from his first trial.

Six months after he was acquitted, the palatial Titirangi home was
sold below valuation, for just under $1 million.

Cleven claimed his money came from hard work and legitimate business
ventures including angora goat farming, property developments and a
bondage and discipline parlour called Salon Kitty.

At the end of two trials, the jury was not satisfied he was the drug
kingpin depicted by police. Under the new law, he might not even go
before a jury - and he would need all his receipts.
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MAP posted-by: Larry Seguin