Judgment: Biddle v Pooley

6 March 2017

Biddle v Pooley

[2017] NZHC 338

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz

Result

Jamie Pooley died at the age of 26 in 2011. He was buried in Christchurch. In a judgment released today, the High Court refused to authorise an exhumation of his body. The Court also allowed two taiaha and a tewhatewha, recognised as taonga, to stay in his parents’ home rather than be put under the control of his partner and the administrator of his estate.

Background

Cheyenne Biddle, Jamie’s de facto partner and the mother of two of his three children, applied to the Court for Jamie’s body to be exhumed. She said that, during her relationship with Jamie, they spoke about each other’s wishes regarding funeral arrangements. As they had differing opinions, they reached a mutual decision that they would both be cremated and their children could decide what to do with their ashes. She wanted to exhume Jamie’s body so that it could be cremated and she could take the ashes back to the East Coast where his mother’s family was from.

Cheyenne also claimed that proper tikanga protocols were not followed when his family arranged for his funeral. Specifically, she complained that Jamie’s sister touched Jamie’s casket when carrying his body into the house. Cheyenne believed that this was a significant breach of tikanga protocols.

Cheyenne claimed she had not been allowed to express an opinion when decisions were made as to the funeral arrangements.

When Jamie died, he owned two taiaha and one tewhatewha. Jamie was presented with one of the taiaha in recognition of his skill at using it. He carved the second taiaha and tewhatewha at school. The taonga were subsequently kept and displayed at Jamie’s parents’ home. Jamie had not made a will. Cheyenne had been appointed as the administrator of Jamie’s estate. Cheyenne wanted the three children to demonstrate certain skills to earn the right to inherit the taonga, while the Pooleys believed that the three items should be distributed to Jamie’s sons in order of birth.

High Court Decision

After hearing expert evidence as to tikanga and assessing the circumstances of the case, Justice Nation was satisfied there had not been any breach of tikanga that justified the exhumation. He accepted the evidence of a Kuia - Mrs Alamein Connell and Mrs Ira Mahuika who gave evidence as to relevant tikanga protocols in dealing with funeral procedures. Mrs Connell explained that, in accordance with tikanga, if the deceased’s parents are still alive, they have the ultimate authority in priority to his partner in terms of the decisions to be made. This was accepted by Cheyenne. Mrs Connell also said there was some flexibility in the way tikanga protocols can be observed and it was not necessarily a breach of tikanga protocol for women to touch and help carry the casket, especially when it was not on a formal marae. The Judge noted that when Cheyenne, at the time, voiced a concern as to the sister helping to carry the casket, the sister had obtained the approval of Mrs Connell and a Kaumatua present before proceeding and, in doing so, had shown respect for tikanga.

The Judge also noted that what Cheyenne was seeking and what she said she and Jamie had agreed to, itself involved a departure from tikanga. It was normal, in accordance with tikanga, for a deceased to be buried rather than cremated. Cheyenne had also acknowledged that Jamie had, through burial, been returned to Papatūānuku, the Earth Mother, and had accepted that exhumation would, itself, be a breach of tikanga.

The Judge said that, while Cheyenne was now making an issue about claimed breaches of tikanga, it had not seemed to be particularly important to Cheyenne at the time. On one of the nights Jamie’s body was lying in his casket at the home with his family, Cheyenne had climbed into the casket and was lying on top of Jamie’s body. Mrs Connell said this was a serious breach of tikanga as it was disrespectful to the deceased, trampling on their mana. However, no one took issue with it as they understood the grief Cheyenne was going through.

The Judge said Cheyenne had not been excluded from the family decisions with the funeral director and the Priest. They had asked her to join the discussion but, for understandable reasons at the time, she had said little.

Even though Jamie expressed to Cheyenne his desire to be cremated and his ashes to be dealt with by the children, this was under the assumption that his children would be adults at the time of his death. Jamie had never said how he wanted his body to be dealt with if he died when his children were still young and his parents still alive. What Cheyenne was asking for was not entirely in accordance with his wish that his children should have decided where his ashes went. His oldest son did not want Jamie’s body exhumed.

In relation to the taonga, Justice Nation held that, in the particular circumstances of the case, with the taonga having always been left in Jamie’s parents’ home, they were held by them under a trust to hold for Jamie during his life, and after his death for the taonga to be distributed amongst his children when and how they considered appropriate. The taonga were thus not property owned by Jamie, and Cheyenne was not entitled to them.

With the deceased’s mother having since passed away, it is now the responsibility of Mr Pooley to care for the taonga and to decide when and how the taonga would be distributed among the deceased’s three children.

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Scoop copy of judgment: fileDecision_23.pdf

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