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.