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Ref re Destroyed Evidence 2026 SDCR 7

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Question of Law on Destroyed Evidence [2026] SDCR 7

Date of judgment 10th January 2026
Judge(s)
  • Court of Review Judge Hmquestionable
  • Court of Review Judge Brandmal
  • Court of Review Judge Ppatpat
Held Court may issue a court order to ensure that all evidence is available at trial.
Ruling 3-0
Applicable precedent
  • Courts may, under certain circumstances, order the recovery of evidence.

MAJORITY OPINION by Judge Hmquestionable

(With Judge Brandmal concurring and Judge Ppatpat agreeing)

Introduction and Verdict

[1] This case concerns a question of law on what kind of response a Court must give in reaction to the potential destruction of evidence in the form of a document, to be precise Judge Muggy asked: “Is the threshold of proving a document’s ownership on a balance of probabilities or beyond a reasonable doubt? If the threshold is on a balance of probabilities, can a Court order the likely owner to retrieve the document?”.

[2] The document in question had been previously presented to the Trial Court in Pre-Trial and duly admitted therein. Before the end of said Pre-Trial however, it appears the document had been deleted. This Court is convinced that the CPA offers a straightforward solution to the issue. In this situation, there exists an immediate legal need to get all the evidence ready for Trial (Art. 7 § 3.8. CPA). The Court may therefore, under Art. 14 §1.1. of the CPA, issue a Court Order to the potentially relevant parties to produce said document. There is no burden of proof in the law for the issuance of Court Orders, instead, the person affected may appeal the order, comply with it or not comply, which may then be prosecuted for Contempt of Court, where ordinary criminal procedures apply.

CONCURRING OPINION by Judge Brandmal

[3] I fully agree with my colleagues, except for the fact that I do not believe the Court Order that they point to is just any Court Order, but rather a Subpoena because:

a) it fits the definition of Art. 15 CPA,
b) Art. 13 § 3. allows the recipient of a subpoena to reject it for having no evidence to present (which they may want to do in this case), but there is no equivalent for other, ordinary Court Orders, unfairly leaving the affected person without a defense, and lastly,
c) Art. 15 §3. does indeed allow for a subpoena, even after a Pre-Trial ended, as it only limits the motions for such, but does not disallow the Court from issuing one entirely.

[4] For these reasons I concur.

Citations

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