The Burial

Posted on Feb 28, 2021 | 0 comments


You know it’s not easy being a judge when you conclude your judgment (in State of South Australia v Ken & Ors [2021] SASC 10) with the following:

  1. I acknowledge that this decision will be a source of great pain to the second and fifth respondents. I can only echo the lament of Doyle CJ in Dodd v Jones who said: ‘Sadly the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weight the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of [the parties]. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.’

The issue before the court, that led his Honour to this position was an intractable dispute about the place of burial of a 24 year old aboriginal man who died intestate and asset-less in 2018.  His body had been held in the Adelaide morgue since that time (yes – 2 years) pending resolution of the dispute. Ultimately, the State (which has standing) brought an application to resolve the issue.

The common law position is there is no property in a dead body (and a body is not capable of being owned). It is also usually the obligation of the executor to arrange the burial. If the deceased is intestate then that task usually the person who applies for letters of administration. Problems arise (like the present case) when there is unlikely to be any application for administration.

Unassisted by common law principles or by any evidence of the deceased’s wishes, his Honour heard evidence from both sides of the family and also had academic material about Pitjantjatjara burial practices. The deceased was born in Port Augusta but had lived most of his life in Pukatja (near the NT border). The judgment is only short and sensitively written and worth reading. The answer to the condundrum is that the burial place was Pukatja.

Creative commons acknowledgment for the photograph.

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