Supreme Court says no to body snatching

December 19th, 2012 at 10:00 am by David Farrar

Stuff reports:

A ruling in the Takamore body-snatching case looks set to test “uncharted cultural waters”.

The decision, a culmination of five years of legal action between James Takamore’s partner and his whanau, could also lead to a standoff between Tuhoe and authorities.

Mr Takamore died of an aneurism in 2007 and was to be buried in Christchurch, where he had lived with Denise Clarke and his two children for nearly 20 years. But his Tuhoe relatives spirited his body from the funeral parlour to his original birthplace in the Bay of Plenty, where they buried him next to his father at Kutarere Marae, near Opotiki.

Ms Clarke, who is executor of Mr Takamore’s estate, obtained a High Court judgment confirming her right to decide his burial place and ordering an exhumation.

The decision was upheld in the Court of Appeal, but Mr Takamore’s sister, Josephine Takamore, appealed to the Supreme Court against that decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the location of burial.

In a decision published yesterday, Chief Justice Dame Sian Elias said Ms Takamore’s appeal had been unanimously dismissed.

Giving rights to anyone bar the executor would have led to massive uncertainty and encouraged more family disputes to be sorted out by whom can grab the body first. The Supreme Court decision is welcome. Their media summary states:

The Supreme Court has unanimously dismissed Ms Takamore’s appeal. Three Judges of the Supreme Court (Tipping, McGrath and Blanchard JJ) have held that there is a common law rule under which personal representatives have both the right and duty to attend to disposal of the body of a deceased. The rule becomes operative where there is no agreement or acquiescence among the family on what is to be done, where arrangements have broken down, or where nothing is happening. In exercising that power, the personal representative should take account of the views of those close to the deceased, which are known or conveyed to him or her. Any views expressed by the testator on what should be done are an important consideration.

Those three Judges have also decided that under New Zealand’s common law a person who is aggrieved with the decision of the personal representative may challenge it in the High Court. The Court must address the relevant viewpoints and circumstances and decide, making its own assessment and exercising its own judgment, whether an applicant has established that the decision taken was not an appropriate one.

The Chief Justice and William Young J agreed that Ms Takamore’s appeal should be dismissed but would not have recognised the role of personal representatives. On their view, any disputes about what should be done with the body of the deceased can only be resolved by the Court.

I’d make the point that I think the views of the testator should be more than just an important consideration. I think they should be legally binding on the executor so long as they are legally permissible and affordable.

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18 Responses to “Supreme Court says no to body snatching”

  1. alex Masterley (1,523 comments) says:

    In hindsight the drafter of Mr Takamore’s will ought to have included an instruction about burial. That might have assisted things, but then again his family would most likely have ignored that as they will ignore the SC decision because it does not suit them to.

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  2. Tookinator (221 comments) says:

    Now they need to also apply the law to organ donors so that ‘wider’ family and ‘cultural’ views do not take precedence over the organ donors wishes…
    I took this issue to Parliament a few years back but it was rejected in favour of even more people being allowed to veto your wishes….

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  3. BlairM (2,365 comments) says:

    Does this mean that cops are finally going to stop the brown mafia from bodysnatching?

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  4. Manolo (14,070 comments) says:

    A defeat for the brown mafia, indeed.

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  5. Chris2 (770 comments) says:

    I think it regrettable that the Supreme Court failed to condemn the mob-rule strong-arm deceptive tactics that led to this Court case, namely the underhand way in which Mr Takamore’s North Island relatives, having descended on Christchurch, took his body in such a surreptitious manner and drove it up the South island, across the Cook Strait and up the North Island.

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  6. Brian Harmer (687 comments) says:

    This has taken far to long to get this far and is not over yet with the iwi promising to be “uncooperative”. It has undoubtedly cost Ms Clarke a lot in legal fees, and personal anguish. There should no be a police protected exhumation and shipping of his remains to his chosen place of burial, and all the costs should be met by the iwi.

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  7. KiwiGreg (3,259 comments) says:

    Was the case funded by Legal Aid???

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  8. Manolo (14,070 comments) says:

    …and all the costs should be met by the iwi.

    Hell will freeze over first.

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  9. david (2,564 comments) says:

    If I remember correctly, the “family” already have exhumed the body and reburied it at an undisclosed location. If that is correct then we may well see a refusal to identify the location. Interesting that what they may well have contravened other white-man’s-laws about where you can and cannot bury a cadaver and Council approval to do so not to mention disrespect for the dead.

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  10. Linda Reid (417 comments) says:

    “I’d make the point that I think the views of the testator should be more than just an important consideration. I think they should be legally binding on the executor so long as they are legally permissible and affordable.” In general I agree with you. However, when Mum died, Dad could not face cremating her so we agreed to go against her wishes and bury her. As a family we felt Dad’s wellbeing was more important – he was devastated enough.

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  11. Paulus (2,668 comments) says:

    Assume Ms Takamore will get final appeal to the Treaty of Waitangi, which of course supercedes the Supreme Court.

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  12. sgthree (13 comments) says:

    There should be consequences if the wider family do not co-operate. It is not acceptable for them to have used the court process if all along their belief has been that the process is only binding on them if they get a result that suits them. The moment they set foot in the court and followed the process, they submitted to the jurisdiction of the court.
    If they were not prepared to accept the decision the (ultimately Supreme) Court was binding on them, they should not have participated in the initial High Court action, let alone proceeded through the appeal process.

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  13. scrubone (3,105 comments) says:

    With the courts, you tend to have to go through a long process until finally the law comes down hard on the offender.

    Hopefully we’ve reached the point where the hammer comes down, but I’m guessing that there will be a few rounds left before that happens. But I am quite certain it will.

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  14. bringbackdemocracy (428 comments) says:

    Will the people who stole the body be prosecuted for breaking the law????

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  15. redeye (630 comments) says:

    But his Tuhoe relatives spirited his body from the funeral parlour to his original birthplace in the Bay of Plenty

    Interesting terminology. I’ve never heard steeling referred to as spiriting before. Does this only apply to bodies or is it a cultural term?

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  16. kowtow (8,776 comments) says:

    The government and it’s numerous agencies,churches and NGO’s etc keep telling the people of Aotearoa how important the tiriti and principles and indigenous rights are…….

    now the courts overturn that in favour of foreign “common law” ,which is here as a result of colonial imperialist aggression and expansion.

    Tuhoe should rightly be aggrieved and all reasonable Aotearoans should feel a great sense of shame and guilt.Compensation and apologies are in order and the United Nations should get involved ,after all it’s the indigenous law that takes precedence.

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  17. edhunter (552 comments) says:

    Couldn’t have said it better myself kowtow, that’s why I dont live there anymore I live on the Gold Coast it’ great…I think

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  18. Ashley Schaeffer (513 comments) says:

    Common law should trump customary protocol in my opinion. Otherwise, who determines which culture comes first when a clash of cultural protocol inevitably arises? If a person wants to surrender their individual freedom of choice to the will of their tribe, then they should put that in writing. As for removing a body without the knowledge and permission of the deceased’s spouse and children – what an arrogant and heartless thing to do. I’m with DPF – I also think that the views of the testator “should be legally binding on the executor so long as they are legally permissible and affordable”.

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