NEW SOUTH WALES. Action of detinue - Right to possession of corpse-Monatrous birth-Preservation as May 21, 22:
A dead human body may under some circumstances become the subject of July 31.
A corpse may possess such peculiar attributes as to justify its preservation on scientific or other grounds, and, if a person has by the lawful exercise of
work or skill so dealt with such a body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, and, if deprived of its possession, may maintain an action for its recovery as against any person not entitled to have it delivered to him for the purpose of burial, subject to any positive law forbidding its retention under the particular circumstances.
Though the public exhibition of such a body may be a misdemeanour as being indecent and injurious to the public welfare, the mere retention of it unburied is not necessarily unlawful.
So held, per Griffith C.J. and Barton J.; Higgins J. dissenting. Per Higgins -There can be no property, either general or special, in a human corpse, and, therefore, under no circumstances can any person main- tain an action of detinue or trover in respect of it. The only right analogous to a right of property for which there is any precedent is a right on the part of persons who by virtue of their relationship with the deceased are regarded as under a duty to give the corpse decent burial, and who seek to obtain it for that purpose.
Decision of the Supreme Court, (Doodeward v. Spence, (1907) 7 S.R. (N.S.W.), 727), reversed.
APPEAL from a decision of the Supreme Court dismissing an appeal from a judgment of nonsuit in a District Court in an action for detinue.
The subject matter of the action was the corpse of a still-born two-headed child, which the appellant had had in his possession for some years, and which had been taken from him by the respondent, an Inspector of Police, on the occasion of a prosecu- tion of the appellant for exhibiting the body in public. The facts sufficiently appear in the judgments hereunder.
W. J. Curtis, for the appellant. The appellant proved that the object was in his possession and that it had been taken away by the respondent. As between the parties nothing further need be proved. No question of public decency was raised. The whole case turned on the right of possession. The possession of the plaintiff must be presumed to be lawful until the contrary is shown. The Court below were of opinion that, because there could be no larceny of a corpse at common law, there could never under any circumstances be any rights of property in a corpse. Practically all the cases on the subject deal with larceny at
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Doodeward v Spence [1908] HCA 45
Case
[1908] HCA 45
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from the Supreme Court of New South Wales regarding the right to possess a preserved corpse of a still-born, two-headed child. The appellant, who had been in possession of the preserved body for many years, had it seized by the respondent, an Inspector of Police, during proceedings against the appellant for public exhibition of the body. The appellant sought to recover possession of the preserved corpse.
The central legal issue before the High Court was whether a human corpse, particularly one that had been preserved and treated, could be the subject of a legal right of possession that would support an action for detinue. This required the Court to consider the common law position on property rights in dead bodies and whether any exceptions existed, especially in circumstances where a body had been subjected to work or skill, or possessed unique attributes.
A majority of the High Court, comprising Griffith C.J. and Barton J., held that while a corpse awaiting burial is generally not subject to property rights, it can, under certain circumstances, become the subject of a right to retain possession. This right arises when a person, through the lawful exercise of work or skill, has so treated a body in their lawful possession that it has acquired attributes differentiating it from a mere corpse awaiting burial. Such a person acquires a right to retain possession, enforceable by legal action against anyone not entitled to it for burial, provided no positive law forbids its retention. Higgins J. dissented, maintaining that no property, general or special, can exist in a human corpse, and therefore no action of detinue or trover could be maintained.
The appeal was allowed, the decision of the Supreme Court was reversed, and the non-suit was set aside, with the majority finding that the appellant had a right to retain possession of the preserved body.