When Power Goes Wrong · Evidence & Proof Ledger · Part 35

What if the record that should prove the case is missing, deleted or never created?

Public bodies have statutory recordkeeping duties, and litigation discovery requires proper searches and disclosure. But a missing document does not automatically prove misconduct: the absence itself must be investigated and placed in evidential context.

The Public Records Act requires public offices and local authorities to create and maintain full and accurate records of their affairs and prohibits disposal of public or protected records without lawful authority.

Once litigation is underway, discovery adds search, affidavit and disclosure obligations. Parties must identify the searches undertaken and disclose documents within the ordered scope, subject to privilege and confidentiality rules.

Missing evidence is an issue to prove, not a shortcut.If an expected record cannot be found, identify whether it was never created, lawfully disposed of, lost, deleted, held in another system, held by a contractor, or omitted from the search. An unexplained gap can be evidentially significant, but there is no automatic rule that absence proves the allegation.

Preserve immediatelyNative electronic files, full email threads, attachments, audit logs, device/system exports, source documents and backup copies.

Record provenanceWho obtained it, from where, when, by what method, and whether the original remains available.

Investigate gapsRetention schedules, disposal authorities, archive transfers, contractor systems, migration history and discovery search methodology.

Final Proof MatrixElement → proposition → evidence → source/provenance → admissibility → contrary evidence → inference → standard satisfied?

The complete case should be capable of being audited line by line: every pleaded element should point to the evidence that proves it, not merely to a folder of documents.

RecordkeepingPublic Records Act 2005, ss 17–18.

DiscoveryHigh Court Rules 2016, Part 8.

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