Doodeward v Spence

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.