Case: The Ophelia [1916] 2 AC 206
Outcome: referred to
for the applicants stated that the applicants proposed to invite the Court to draw an inference or inferences against the respondent from various facts including that: (1) emails were deleted; (2) the contents of a laptop computer used by Ms Allen were erased; (3) not all Channel Reports have been made available; and (4) the backup TL drive files were not retained. In support of this submission, the applicants referred to the following three authorities: Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 ; The Ophelia [1916] 2 AC 206 ; and Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367. The material fact was, so the applicants said, the destruction of documents. If they were to plead the inferences to be drawn from this destruction, then, so they said, they would be pleading impermissibly matters of evidence. The applicants' case was that it was the fact of destruction by the respondent that was sufficient and necessary for their pleading. The Ophelia [1916] 2 AC 206 concerned a German steamship, which was seized by the British ship, HMS "Meteor", in October 1914 and taken as a prize. The German Government claimed her release upon the ground that she had been operating as an auxiliary military hospital ship. The British Crown contended that she had been operating as a signalling ship for military purposes. The case was first heard in the Prize Court, which condemned the "Ophelia" as lawful prize. An appeal was taken directly to the Privy Council, where their Lordships' advice was delivered by Sir Arthur Channell. At the time of the seizure, various documents, including signals log, were thrown overboard. One of the issues in the case concerned the principles of evidence relating to the "spoliation of documents". The signals log was in the circumstances of the case a most important document. In respect of this document, Sir Arthur Channell said (at [1916] 2 AC at 228-229): There seems, taking the evidence as a whole, the greatest uncertainty as to what books recording signals were really kept; but the one thing which is certain is that any which were kept, except the news log, were thrown overboard when it was seen that the vessel was about to be searched. If nothing but innocent signals had been sent, the signal log was the very book of all others which should have been preserved. The result, therefore, is that the appellant has nothing to show to vouch his story that all signals sent ... were of an innocent character. Further, the absence of such evidence, if any ever existed, is caused by his own act. This leads to the subject of what is technically called spoliation of documents, on which the President, rightly, as their Lordships think, laid much stress ... Sir Arthur Channell subsequently described the doctrine relating to spoliation of documents in the following passage (at [1916] 2 AC at 229-230): [I]t may be that in some respects the old doctrine was rather technical. The substance of it, however, remains and is as forcible now as ever, and it is applicable not merely in prize cases, but to almost all kinds of disputes. If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case. ... In stating their Lordships' opinion, Sir Arthur Channell concluded (at [1916] 2 AC at 230-231): Their Lordships are of opinion that Captain Pfeiffer [the "Ophelia's" commander] and the other witnesses have by their acts put themselves in such a position that their evidence cannot be relied on; that the evidence discloses facts of which no satisfactory explanations are or can be given; and that although on the Crown affidavit evidence some ambiguities have been pointed out which have not been cleared up by cross-examination or re-examination, yet there are incriminatory matters in those affidavits to which no answer has been given. They are of opinion that the President was fully justified in finding that the Ophelia was not constructed or adapted or used for the special and sole purpose of affording aid and relief to the wounded, sick, and shipwrecked, and that she was adapted and used as a signalling ship for military purposes. Notwithstanding Sir Arthur Channell's comment that the doctrine of spoliation is applicable "to almost all kinds of disputes", The Ophelia [1916] 2 AC 206 is essentially a case on the law of prize. In any event, the case makes plain that the doctrine of spoliation is an evidentiary one. The case illustrates an approach to evidence, especially in a prize context. Further, it is clear from the report of the case that what was in issue was a very clear and deliberate act of spoliation the deliberate destruction of evidence. The case is not authority for the broad principle that the applicants espouse that every destruction of documents attracts an adverse inference. That is, I doubt that Sir Arthur Channell intended to say that, in any litigation, where it can be shown that one party destroyed a document, then it must be presumed that that document supported the opposing party. Such a proposition would be unreasonable. The significance of The Ophelia [1916] 2 AC 206 depends, so it seems to me, on what is intended by the word "spoliation": see The Oxford English Dictionary , which includes that "spoliation" means "[t]he action of spoliating, despoiling, pillaging, or plundering; seizure of goods or property by violent means; depredation, robbery. Also, the condition of being despoiled or pillaged". The doctrine of spoliation is sometimes expressed as " omnia praesumuntur contra spoliatorem ". For the purposes of the doctrine of spoliation, there is a distinction between: (1) the deliberate destruction of documents with the intention of destroying evidence; and (2) the deliberate destruction of documents where there is no such intention. That is, there must be something reprehensible about the destroying party's conduct for the doctrine of spoliation to apply. It seems to me that such a distinction is inherent in the passage set out at [27] above. It is only in the first situation that there may arise a presumption adverse to the destroying party. In the second situation, the destroying party suffers a detriment, but only in the sense that he has thereby lost corroboration. Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367 largely confirms this view of The Ophelia [1916] 2 AC 206. Allen v Tobias commenced as an action for penalties against one Leslie William Allen on the ground that he had acted as a shire councillor, while being disqualified from so acting since he was concerned in a contract with the municipality concerning the municipal rubbish tip. There was a question as to whether the documents in which the agreement was made were executed by him. The trial judge said that there was a suspicion that the documents were destroyed by the defendant "lest the fact of execution ... might prove difficult for the defendant in anticipated litigation": 98 CLR at 371. In the High Court, this observation led Dixon CJ, McTiernan and Williams JJ to say (98 CLR at 375): It is perhaps desirable to refer again to one question of fact which Sholl J [the trial judge] left unsettled. Did the defendant and his brothers execute the agreement with the council drawn up in April 1953, the three copies of which were destroyed by the defendant? Notwithstanding the difficulty which his Honour felt in arriving at a conclusion, there are two grounds why the Court should proceed upon the assumption that the document was so executed. In the first place to presume the fact against the defendant seems but a proper application to the circumstances of the principle omnia praesumuntur contra spoliatorem . It is a far cry from the municipal warfare of the present case to a case in Prize but no statement of the principle could be more apposite than that of Sir Arthur Channell delivering the opinion of the Privy Council in The Ophelia . ... At this point, their Honours set out the passage at [27] above. The report of Allen v Tobias demonstrated that what was at issue was the deliberate destruction of documents with the intention of destroying evidence in anticipated litigation. As in The Ophelia , this was a proper occasion in which to apply the doctrine of spoliation as an evidentiary presumption. Further, in the High Court, their Honours did not rely on this doctrine alone, but also on the further reason that the statute cast the burden of proof on the defendant to disprove the disqualifying facts.