Conviction

featured: 
No

Almaliach v. State

Case/docket number: 
CrimA 149/12
Date Decided: 
Monday, September 24, 2012
Decision Type: 
Appellate
Topics: 
Administrative Law
Discretion
Criminal Law
Conviction
Criminal Procedure
Prosecution
Evidence
Admissibility
Abstract: 

 

Facts: The appellant was convicted of the crimes of carrying a weapon, intimidation, and possession of stolen property. The indictment charged that in the early morning hours of December 2, 2006, in the city of Ashdod, the appellant carried a stolen grenade into a building in which the Biton family resided, and then taped the grenade to a piece of cardboard which he then taped to the Biton family‘s front door, leaving a string tied to the grenade‘s safety mechanism. He ran away after a family member woke up and opened the door. The indictment was based on DNA evidence linking the appellant to the crime, through DNA traces found on the adhesive tape used in the taping of the grenade to the door. The appellant was sentenced to 24 months in prison plus a one-year suspended sentence, and was ordered to pay compensation to the family member who had been woken by the noise. The appellant submitted an appeal claiming that his conviction was improper in that it was based only on the analysis of the DNA traces found on the main exhibit in the case, without any additional corroborating evidence. The appeal was also based on the fact that the indictment was brought two years after the initial incident, leading to an unjust impairment of the appellant‘s ability to prepare a  defense. Finally the appellant challenged the sentence imposed by the district court, arguing that it was not commensurate with the offense committed.

 

Held: A defendant can be convicted solely on the basis of DNA evidence, but such a conviction should only be permitted in exceptional cases and substantial care must be taken when DNA evidence is the sole evidence presented by the prosecution. The appellant's conviction meets the standards to be applied with regard to such exclusive DNA evidence. An analogy can be drawn between DNA evidence and fingerprint evidence, in that both types of evidence can identify an offender based on scientific data that are unique to each person. With regard to both types of evidence, inferences must be drawn in order to determine the needed facts, and the court reaches its conclusion regarding the reasonableness of such inferences on the basis of expert testimony presented to the court. However, exclusive reliance on DNA evidence presents a higher possibility of wrongful incrimination than fingerprints because DNA evidence can be collected from a wider range of sources (e.g. from skin cells, saliva, or blood, etc.) and the cells from which DNA evidence is produced are more mobile than fingerprints. The court must consider the propriety of the methods with which the DNA was collected and examined, the degree of certainty of the analysis, the nature of the DNA that was found and its location and what these factors indicate, and the defendant's explanation and evidence for a reasonable and exonerating version of the events. Finally, all the elements of the crime must be proven in order for the DNA evidence to be an acceptable as the basis for a conviction. In this case, the totality of the DNA evidence, combined with the nature of the item on which it was found (adhesive tape) and the insufficiency of the appellant's explanations of how his DNA came to be on the tape, lead to only one logical conclusion – that the appellant committed the crime of which he was accused. The court noted as well that the two year delay between the incident and the appellant‘s questioning – although it did impair his ability to defend himself – was not the result of any defect in police procedures or conduct, and therefore did not conflict substantively with the principles of justice and fairness. Finally, the court found that the sentence was appropriate in light of the high risk presented by the use and possession of the particular weapon as well as the appellant's prior criminal record.

 

Voting Justices: 
Arbel, Edna
Primary Author
majority opinion
Zylbertal, Zvi
majority opinion
Vogelman, Uzi
Author
concurrence
Full text of the opinion: 

Justice E. Arbel

 

JUDGMENT

 

This is an appeal of the judgment of the Beersheba District Court (Hon. Judge Dafna Avnieli) in CrimC 8047/09, dated 23 November 2011, in which the appellant was convicted of the offenses of carrying a weapon, intimidation and possession of suspected stolen property. The focus of the appeal is the question of whether a defendant can be convicted solely on the basis of DNA evidence.

Indictment

1.            According to the facts presented in the indictment, at around 4:20 a.m. on 2 December 2006, the appellant took a fragmentation grenade that had been stolen from the security forces and approached the home of the Biton family in Ashdod. When he arrived at the apartment, he taped the grenade to a piece of cardboard with thick adhesive tape and taped the cardboard to the door of the apartment, leaving a string tied to the safety mechanism. The family‘s daughter, Reut Biton, who was sleeping in the apartment at the time, was woken by noises coming from the direction of the front door and went to the door. When she opened the door, the appellant ran away and left the grenade attached to the door. For these acts, the appellant was indicted for the crimes of carrying a weapon pursuant to s. 144b of the Penal Code, 5737- 1977 (hereinafter: ―the Law‖), intimidation pursuant to s. 192 of the Law and possession of suspected stolen property, pursuant to s. 413 of the Law.

The district court’s judgment

2.            The appellant‘s  conviction was  based on DNA  evidence that  was found on the strip of adhesive tape that had been used to affix the grenade to the piece of cardboard and to attach the piece of cardboard to the door of the apartment. The district court accepted all the findings in the opinion submitted   by   the   prosecution   expert,   Police   Superintendent Avraham, of the National Police Headquarters Forensic Biology Laboratory (hereinafter, ―the Expert‖ or ―the Prosecution Expert‖). The opinion stated that the genetic profile produced from two separate sectors on the strip of adhesive tape (1A and 1C), and from a piece of a glove (1E) and from a hair (18D) – both found inside the strip of adhesive tape – matched the appellant‘s genetic profile, with a margin of error of less than one in a billion.

3.            The district court rejected defense counsel‘s arguments against these findings. Thus, it was argued that the result obtained from Sector 1A of the roll of adhesive tape was inconclusive, since on one locus in Sector 1A, the sample contained a foreign allele – one that did not come from the appellant. The court noted that there was no professional certification presented to support the defense counsel‘s argument; the court therefore accepted the position of the Prosecution Expert that this was an unequivocal result and that the genetic profile could be considered ―clean‖ for the purpose of a statistical calculation.

4.            The district court also rejected arguments regarding the Prosecution Expert‘s professional abilities. It had been argued, inter alia, that statistical calculation was not within the Expert‘s area of expertise, and that her opinion, which made reference to statistical components, was therefore meaningless. The court found that the Prosecution Expert‘s opinion was supplemented by  the  testimony of  Professor  Uzi Motero  of  the  Hebrew University of Jerusalem, who guided the Expert in her statistical calculations, and that this supplementation created a presumption of propriety – which the defense counsel had sought to refute. It was also noted in this regard that the appellant had chosen not to present his own expert witnesses to refute either Professor Motero‘s statistical explanations or the Prosecution Expert‘s opinion concerning the biological evidence.

5.            The court also rejected claims relating to the procedure followed in collecting the evidence, and held that there was no fault to be found with respect to that collection or with respect to the chain of evidence – beginning with the removal of the cardboard with the taped grenade from the apartment door, through the transfer of that evidence to the appropriate parties, and concluding with its analysis in various police laboratories. In particular, the court rejected the appellant‘s argument that the piece of the glove on which the appellant‘s DNA was found had been stuck to the strip of adhesive tape at some point during its transfer from the crime scene to the biological evidence laboratory. The court held that although the glove was not visible in the photographs taken at the crime scene, it was reasonably likely that the piece of glove had been stuck between the many layers of the strip of adhesive tape, such that it could not be seen even when viewed close up, and that it was discovered only after the tape was peeled open. Alternatively, it could be that it was stuck to the back part of the Exhibit (the adhesive tape) which had been used to attach the grenade to the piece of cardboard – and that this was why the policemen at the site did not notice it. The court added that DNA samples were taken from the policemen who were at the scene in order to rule out the possibility that the glove had been torn off from a glove worn by a policeman. The results indicated that none of them matched the genetic profile produced by the examination of the piece of the glove.

6.            The appellant‘s explanations of how his DNA was found at the scene were rejected as well. When questioned at the police station and in court, he denied any connection to the incident, claimed that he did not know the owner of the apartment on the door of which the grenade had been taped. He suggested various possible explanations for the presence of his DNA on the tape: that someone had taken the strip of adhesive tape from the counter of the convenience store in which he worked at the time, or that it had been taken from his car. The court rejected these suggestions on the grounds that they were hypothetical and far-fetched and did not cast doubt on the appellant‘s culpability, taking into account the fact that a roll of adhesive tape is an inexpensive and simple product, and that it is not likely that a person would take it from someone else to be re-used.

7.            The appellant‘s attempt to mount a defense based on principles of justice (in connection with the relatively lengthy period of time between the incident and the arrest) was also unsuccessful. The defense counsel argued that because the appellant needed to provide explanations long after the occurrence of the incident, the ability to present a defense had been impaired. Nevertheless, the court found that the police had not been complacent during the interim, and that it had used all available means to investigate every possible suspect in the case. Thus, the court held, the time aspect did not work in favor of the appellant, and the principles of justice doctrine did not apply in his case.

8.            Ultimately, the forensic findings tying the appellant to the crime, along with the appellant‘s weak explanations for the discovery of his DNA at the site, led the district court to the conclusion that the appellant had carried the grenade and taped it to the door of the Biton family‘s apartment; that the taping of the grenade was done with the intention of intimidating the members of that household; and that the appellant must have suspected that

 

 

 

 

 

6              Israel Law Reports                           [2010] IsrLR 6 Justice E. Arbel

the grenade was stolen, since a fragmentation grenade is not a product that can be purchased lawfully. Based on all of the above, the district court convicted the appellant of the crimes with which he had been charged in the indictment.

9.            In its sentencing, the district court noted the severity of the crimes and surveyed, at length, the trends that are generally being followed in connection with sentencing for crimes involving weapons. It was noted that it was extremely fortunate that the criminal objective was not achieved, and that the grenade did not explode. The district court added that although the appellant had the right to continue his trial until its ultimate conclusion and to persist in his claim that he did not commit the crime attributed to him, the fact that he did so indicated that he had not internalized the severity of his actions. In addition, the court noted that it was aware of other cases in which defendants had been convicted of similar crimes, but had not been subjected to the full power of the law and received lighter sentences. In light of all this, the court sentenced the appellant to 24 months in prison and twelve months of a suspended sentence, and ordered the appellant to pay compensation to Reut Biton in the amount of NIS 2,500.

The appellant’s arguments

10.          The appellant argued that there were various flaws in the chain of evidence and attacked the findings in the Prosecution Expert‘s opinion. The appellant‘s main argument in this context was that it had not been proven that the piece of glove on which his DNA was found was originally part of the Exhibit. The claim was based on the fact that the forensic investigators who photographed, took apart and packaged the Exhibit had not seen a glove at the crime scene. Therefore, the appellant reasoned that no weight should be given to this piece of evidence. Another argument made was that the hair on which the appellant‘s DNA was found was brought to the laboratory for testing only after the appellant was arrested, some two years after the incident had taken place – while the respondent had nevertheless presented the evidence to the district court as if the DNA that was found on the hair as well as the DNA on the strip of adhesive tape and on the glove were all found and examined at the same time. Regarding the findings in the Expert‘s opinion, the appellant argued that they were not conclusive, and that traces of DNA that did not belong to the appellant were found in some of the samples – an indication of the involvement of others in the criminal act. For these reasons, the appellant argued that the Expert‘s opinion submitted by the respondent was poorly grounded and could not be used as the basis for his conviction.

 

 

 

 

 

CrimA 149/12     Almaliach v. State of Israel           7

 

 

 

11.          The appellant further argued that a conviction cannot be based solely on DNA evidence when there is no other evidence supporting the conviction. According to his argument, the courts have always referred to additional evidence tying the defendant to the crime, in addition to any DNA findings.

12.          He further argued that his explanation for the presence of his DNA on the objects at the crime scene was reasonable, and that it raised reasonable doubt about his culpability. He insisted that it was indeed possible that the roll of adhesive tape was taken from the convenience store where he worked at the time, or that someone took the roll from his car. He also stressed that adhesive tape is a portable object and can easily be transferred from one person to another. In addition, he suggested that there were other possible suspects who may have committed the crime, and that these included the apartment owner‘s creditors – who were also prosecuted for intimidating the apartment owner.

13.          Finally, the appellant argued that he was entitled to raise a defense based on principles of justice, in light of the amount of time that passed between the incident and his questioning by the police – a length of time which affected his ability to present an alibi. He further argued in this context that the police who questioned him did not inform him that the incident had occurred on a Friday night, and that had he known this, he could have ruled out his involvement easily, because he is a Sabbath observer.

14.          Regarding the sentencing, he argued that the court was overly harsh with him, and that the sentence imposed went beyond the threshold for punitive measures established in the case law for such crimes, and that the court decisions on which the sentencing had been based involved factual situations that could not be compared to the circumstances of this case. He further argued that the district court was fundamentally mistaken in finding that his intention was to explode the grenade, and that this finding contradicted the holding in the decision itself – that his intention had been to intimidate the members of the household. For these reasons and others, the appellant argued that his sentence should be reduced.

Respondent’s arguments

15.          The respondent argued that the appellant‘s claims regarding the alleged defects in the Prosecution Expert‘s opinion and the professionalism of the author of that opinion were baseless. According to the respondent, the appellant‘s arguments, which were not supported by a countering expert opinion, were extremely flimsy in comparison to the position taken by the Prosecution Expert – a position reinforced by Professor Motero‘s testimony. With respect to the allegations concerning the defective handling of the chain of evidence, the respondent argued that these were nonspecific claims that lacked any evidentiary foundation; all the exhibits and the reports produced by the parties who were in contact with the Exhibit were submitted to the district court, and these indicated that the laboratory personnel had indeed noticed the hairs on the strip of adhesive tape when the Exhibit was first transferred to the fiber and polymer laboratory, but that the hairs were not examined at the time of the event in accordance with standard police and forensic identification procedures. There is no basis for the claim that the hairs were found only shortly after the appellant‘s arrest. Regarding the glove, the respondent relied on the district court‘s holdings and emphasized that the possibility that the glove came from one of the policemen who handled the crime scene had been investigated and ruled out.

16.          The respondent further argued that there is no obstacle preventing the conviction of a defendant on the basis of DNA evidence alone. According to the respondent, DNA evidence is no different than any other ―traditional‖ circumstantial or scientific evidence. The respondent argued that an analogy can be drawn between this issue and the rule that applies to fingerprints; the rule regarding fingerprints is that in certain circumstances, a defendant‘s fingerprint could suffice to allow for the defendant‘s conviction – when there is no reasonable explanation from the defendant as to why his or her fingerprints were found at the site. The respondent argued that the case before us is a clear example of the type of case in which a conviction on the basis of DNA alone is possible, since the DNA evidence consists of more than a single piece of evidence taken from a single segment of a relevant exhibit, and is comprised instead of several pieces of DNA evidence, produced from various sources, all of which are components of the Exhibit.

17.          The respondent further argued that the explanations given by the appellant for the presence of his DNA on the Exhibit are not plausible. The respondent relied on the reasons given by the district court in this case; it added that the appellant‘s explanations were inconsistent with the location of the findings on the Exhibit, and with the various sources from which the DNA was produced, and especially with the piece of the glove – which on its own provided an evidentiary foundation that, according to the respondent, sufficed to incriminate the appellant.

18.          Regarding the appellant‘s claim relating to principles of justice, the respondent reasserted the holding of the district court – which was that the passage of time between the incident and the arrest does not provide any support for the appellant‘s defense, since his connection to the incident was discovered only after he had been arrested as a suspect in a different case. The respondent also argued that the appellant‘s alibi claim, based on his being a Sabbath observer, must be rejected as it is an argument presented at the last moment – and one that was in any event not proven by any evidence.

19.          Finally, the respondent believes that the sentence imposed on the appellant is proper given the severity of the circumstances of the offense, and that no judicial intervention is needed regarding this matter. The respondent referred to the appellant‘s character, his lifestyle and his serious criminal past, which included a number of earlier convictions for a variety of offenses.

Discussion

20.          I will begin by discussing the general question of whether it is appropriate to base a criminal conviction exclusively on DNA evidence. I note here, at the start, my ultimate conclusion that in the proper circumstances, such a conviction is indeed appropriate. I will therefore turn to the issue of whether the appellant can be convicted of the acts attributed to him on the basis of the DNA evidence that was found at the scene of the crime.

Conviction on the basis of DNA evidence

21.          DNA is a molecule that contains all of a human being‘s genetic information. It is the ―genetic code‖ ingrained in every cell of a person‘s body. The DNA molecule is built of a sequence of approximately three billion units, called ‗bases‘ that are organized into structures called chromosomes, upon which are situated the genes, which govern the expression of a person‘s individual characteristics (phenotype). Each gene (other than those on the gender chromosomes) has two alternative forms, called ‗alleles‘. The permutation of the DNA bases is fixed and identical in each cell of the body (other than in the reproductive cells), and it is unique to each person, such that no two people (other than identical twins) have completely identical DNA sequences in their cells.

22.          A forensic DNA test is based on a comparison of genetic samples, with reference to the frequency of the particular genetic profile within the relevant population. The comparison is not based on the entire DNA sequence; rather, it is based on a sampling relating to several hundred of its component sequences, on the assumption that if identity is found in the sample, the entire sequence will also be identical. When presented in court, DNA evidence will consist of two components that complement each other.

 

 

The first component relates to the degree of conformity between the two genetic samples (the sample found at the crime scene and the sample from the defendant). The second component consists of an estimation of the probability of the particular profile‘s incidence within a particular population. In other words, the DNA evidence will indicate the chance that two different people in the same population will have an identical genetic profile. (For further discussion of the structure of DNA and the manner in which it is examined for forensic purposes, see Y. Plotsky, ―The Weight of DNA Evidence After the Decision in Murad Abu Hamad‖, 30 Medicine & Law 174 (2004); A. Stoler & Y. Plotsky ―DNA on the Witness Stand‖ MEDICINE& LAW, JUBILEE VOLUME (2001), at p. 143; N. Galili & A. Morbach ―DNA Analysis for Forensic Purposes‖ 2 Criminal Law 225 (1991)).

23.          The potential for using DNA analysis as evidence was discussed at length in CrimA 9724/02 Abu Hamad v. State of Israel [1]. The Court, per Justice Cheshin, noted that although DNA analysis is a relatively new form of scientific evidence, it is currently accepted by the scientific community as well as by courts in Israel and in other countries. The Court held that DNA analysis is admissible and proper evidence, which can be accepted without the court needing to reexamine the scientific method on which the analysis is based every time such evidence is presented, Two conditions, however, must be fulfilled for it to be admissible in this way: the main principles of the method and of the examination must be subject to examination and refutation at any time and in any legitimate manner; and it must be proven that the specific analysis that was submitted in the particular case was carried out in accordance with the rules required by the relevant scientific method (Abu- Hamad [1], at para. 20).

24.          Justice Cheshin further noted that DNA analysis had not yet been used as the sole evidence supporting a conviction, and that a review of the case law indicated that the courts have always required additional evidence. In the Abu-Hamad [1] case as well, there was additional evidence beside the DNA evidence – evidence that tied the defendant to the commission of the crime. Nevertheless, Justice Cheshin stated his belief that:

‗A DNA analysis indicating a high statistical probability (without deciding here the actual level of probability that will be considered to be sufficiently high) should be treated in the same manner as fingerprint evidence. And in the absence of a reasonable explanation – one that might raise doubt in the mind of the court with regard to the defendant‘s guilt – a defendant may be convicted on the basis of such evidence alone.‘ (Abu-Hamad [1], at para. 35. See also Justice Turkel‘s position, at para. 2 of his opinion in the instant case).

(It should be noted that a petition for a rehearing was filed with respect to the decision in Abu-Hamad [1], and it was rejected by Justice Mazza – CrimFH 9903/03 Abu-Hamad v. State of Israel [2]).

25.          Justice Procaccia took a similar position in a different case:

‗As is the rule with respect to fingerprints, DNA analysis that ties a defendant to the scene of the crime with a very high likelihood of identification can, under certain conditions, serve as a sufficient basis for a conviction, in the absence of a reasonable explanation from the defendant regarding his presence at the site at the time when it is estimated that the crime was committed‘ (CrimA 10365/08 Aliaswi v. State of Israel [3], at para. 9).

26.          On the other hand, Justice Naor took a different position – that DNA findings cannot by themselves provide a sufficient basis for the conviction of a defendant and that additional evidentiary support is required (CrimA 1132/10 State of Israel v. Anonymous [4]), at para. 35-38). It appears  that this holding was based in large part on the specific circumstances of that case, which I will discuss at length below.

27.          In my view, a defendant can be convicted on the basis of DNA evidence alone, under certain circumstances. I also believe that an analogy can be drawn to the rule that we follow with respect to fingerprint evidence (subject to my comments on the subject below). That rule is that a criminal conviction can be based on fingerprint evidence as a single piece of evidence, so long as none of the evidence presented in court provides an ―innocent‖ explanation for the fingerprint that was found at the site – to a degree that creates a reasonable doubt regarding the defendant‘s guilt. (See, for example, CrimA 2132/04 Kase v. State of Israel [5], per Justice Procaccia, at para. 14; CrimA 4471/03 State of Israel v. Krispin [6] , at p. 285, and the references cited there).

28.          Like a fingerprint, DNA evidence is also scientific and circumstantial evidence that can tie a defendant to the scene of the crime, to the point where the matter of his guilt regarding the commission of the crime can be established. The two types of evidence are both based on a comparison of findings at the crime scene, and an analysis conducted with respect to the defendant. With regard to both types of evidence, the court receives information from experts in the field. Neither type of evidence is immune from human error, either in the collection of the evidence or in the handling of the evidence in the laboratory or elsewhere. Nevertheless, both the scientific and legal communities accept that both types of evidence enjoy a high degree of reliability because of the assumption that a genetic code and fingerprints  are  unique  to  each  and  every  person  (see  A.  Tshernov, ―Scientific Evidence and Witness Testimony in Court, MEDICINE & LAW, JUBILEE VOLUME, (2001) at pp. 177, 179-181). For this reason, both types of evidence have been granted the status of ―sound‖ evidence (Aliaswi [3], per Justice Procaccia, at para. 7; CrimA 9154/04 Hanuka v. State of Israel [7]). Furthermore, there are those who believe that the evidentiary weight of DNA evidence is greater than that of fingerprint evidence (see Plotsky, ―The Weight of DNA Evidence‖, at p. 174; ―in our view, the potential weight of DNA evidence is tens of times greater than the evidentiary weight of a fingerprint, but at this stage, within the existing systems, this potential cannot be realized.‖ (I will discuss below Plotsky‘s argument that this potential cannot be realized).

29.          Alongside the characteristics that the two types of evidence have in common, there is also a difference. The genetic code of a human being is stamped on each cell of his body, while a fingerprint can be found only on a person‘s hand or foot. DNA evidence may therefore be produced from a greater variety of sources (saliva, hair, semen, blood, skin cells, etc.) Furthermore, the sources that contain our genetic codes can easily fall off a person‘s body and ―roll off‖ onto the crime scene. The simplest example is a hair that falls off of a person‘s head and coincidentally falls onto the crime scene. This does not mean that fingerprint evidence is a more incriminatory type of evidence, but rather that given the many possible sources for DNA traces, and given that the cells producing the DNA evidence are themselves highly mobile, there is a greater concern that any DNA evidence found on the scene came to be there as a result of coincidence – as compared to the possibility that the finding of fingerprints at the crime scene would be the result of pure coincidence. When we examine this difference, it appears that even though there is much similarity between the two types of evidence, an exclusive reliance on DNA evidence leads to a greater chance of reliance on evidence that was produced by chance, and thus to the increased possibility that a defendant will be wrongly incriminated. This difference will have consequences for the range of circumstances in which we will permit a conviction based solely on DNA evidence.

30.          Thus, my position is that as a matter of principle, there is no impediment preventing the conviction of a defendant on the basis of DNA evidence; I therefore do not believe that we should establish a sweeping rule prohibiting such convictions. However, just as it would not be appropriate to establish a blanket prohibition, it would also be inappropriate to issue a sweeping approval for such convictions. A conviction which is based only on DNA evidence should be permitted only in exceptional cases, with each case being examined on its own terms, subject to its particular set of circumstances. Substantial care must be taken when reaching a decision to convict on the basis of such evidence, and a court must do so only with trepidation, given that the entire decision rests on a single piece of evidence (compare CrimA 10360/03 Shadid v. State of Israel [8], per Justice Naor, at para. 14).

31.          In examining DNA evidence that is presented as the only evidence in the prosecution‘s case, the court must take note of the procedure followed in carrying out the examination that produced the relevant DNA findings – meaning that the court must address the question of whether the examination was appropriately carried out and documented by properly trained experts. In this context, Plotsky argues that Israel‘s crime scene identification laboratories have no standards requiring a supervisory mechanism for the execution of DNA tests and that it is therefore impossible for a court to determine whether the testing was done properly. He therefore believes that at present, the full evidentiary potential of DNA evidence cannot be utilized, and that the courts cannot, consequently, convict a defendant on the basis of this type of evidence alone (see Plotsky, The Weight of DNA Evidence, supra, at pp. 178-179). This is a criticism of which the legislature and the enforcement authorities should certainly take note. To the extent that the Israel Police does not have guidelines regarding the manner in which DNA tests are to be carried out, it should develop clear and organized standards, so that the test results can more easily withstand challenges from defense counsel and from the court. However, the absence of such directives does not impede the defendant‘s right to attempt to point to defects in the manner in which the test was performed, or to attack the prosecution‘s findings – either through a cross-examination of the prosecution‘s experts, through the conduct of independent testing of the samples taken, or through the testimony of the defendant‘s own expert. Thus, the absence of proper guidelines does not in itself prevent the court from using the tools available to it or from deciding an issue which is the subject of a disagreement among experts, in the same way that it decides other issues that are a matter of scientific or professional dispute.

32.          The court must also take note of the substance of the findings and of the critical question of whether they indicate, at the required level of certainty, that the DNA found at the crime scene comes from the defendant. I do not intend to make a final determination of the minimal level of conformity and probability that is required for such, if only because the parties did not present the foundation required for reaching a decision regarding this important question. I will therefore leave the matter open at this point, and it will be resolved in due course. It is sufficient to note here, with all due caution, that it appears that a genetic match at a level of one in one billion is sufficient to establish a person‘s identity (see and compare Justice Cheshin‘s discussion of this matter in Abu Hamad [1], at para. 25, and see also the position taken by Justice Levy in CrimA 4117/06 McCaitan v. State of Israel [9] and in CrimApp 5174/99 Haldi v. State of Israel [10] as examples of cases in which the match found by the prosecution‘s expert was not strong enough to support a conviction.

It is important to emphasize, insofar as it is not automatically understood, that even though expert testimony is required concerning a DNA issue, the experts do not make the ultimate determination that the DNA that was found at the site does in fact belong to the defendant. The experts can testify regarding the probability of the match. But it is the court that determines the identity of the offender, and it must not fail to exercise its authority to make that determination.

33.          In addition to the propriety of the examination and of the findings, the court must also examine the quality of the evidence, including the type of DNA that was found (saliva, semen, blood, etc.) and its location and the number of places from which it was taken – and whether it indicates a particular use or action (semen in a rape victim‘s genital area, blood on the blade of a knife). The court will also look at other factors that may have implications for the probative value of the DNA findings.

34.          We must recall that DNA evidence is circumstantial evidence, and a conviction based on such evidence is possible only when the sole logical conclusion that can be drawn from it is that the defendant is criminally liable (Kase [5], at para. 6, and the sources cited there). That being the case, the weight to be accorded to the evidence and the issue of whether or not a conviction can be based on it will be determined after the court considers the explanation offered by the defendant regarding the presence of his DNA at

the scene of the crime. If the defendant can offer an acceptable explanation or a version of the facts that exonerates him and creates a reasonable doubt regarding his culpability, then he must be acquitted, in accordance with the rule followed with respect to fingerprint evidence.

35.          It must also be recalled that when circumstantial evidence, unlike direct evidence, is presented, we rely on inferences and conclusions regarding the direct facts that must be proven. In cases that are based on this type of evidence, an evidentiary gap may always remain – in which more is hidden than is disclosed. This is even more the case when the entire matter will be decided on the basis of a single form of circumstantial evidence. Therefore, while the DNA can provide a strong link – a link of ―heavy chains‖, as Justice Cheshin wrote in Abu-Hamad [1] – between the defendant and the commission of the crime, the court must still determine whether all the elements of the crime of which the defendant is accused are present. On the other hand, we must also recall that not every doubt arising from the evidentiary material will rule out the possibility of a conviction. A criminal conviction must be based on a proof of guilt beyond any reasonable doubt – not beyond any doubt at all.

36.          Generally, when the court assesses the weight to be given to DNA evidence which is presented as the only evidence in the case, the court must pay attention to the propriety of the DNA examination, the degree of certainty that characterizes the expert‘s findings, the nature of the evidence and the circumstances in which it was found. The court must also take note of the defendant‘s explanations and the possibility that there is a reasonable version of events that exonerates the defendant and which can be supported by the evidence that is before the court.

37.          I will conclude my comments by discussing, briefly, the decision in the case of Anonymous [4], in which Justice Naor held that evidentiary supplementation is required in order to uphold a conviction that has been based on DNA findings. I believe that her holding in that case can be understood, to a great extent, against the background of the specific circumstances of that case. The crime was a sexual assault that was attributed to two defendants acting together – one was accused of raping the complainant; the accusation against the other defendant was that while the rape was occurring, he ―climaxed and ejaculated in the complainant‘s underwear.‖ The defendant who was accused of the rape was acquitted because the version of the facts that he presented, which exonerated him of the crime, was found to be supported by the evidence. In these circumstances, the conviction of the second defendant could not be supported. In any event, as a substantive matter, the only proof that tied the second defendant to the commission of the crime was a forensic opinion; the opinion stated that DNA traces found on the lower part of the complainant‘s dress were a one in one billion match to the defendant‘s profile. However, the totality of the details in that case did not make it possible to base his conviction on this expert opinion at the level of proof required for a criminal conviction: there was no dispute that the two defendants were present near the complainant;  the second defendant confirmed that he had given the complainant a ride and that it was possible that he might have touched her shoulder (a detail which was not itself incriminating); the forensic data presented did not include details as to what kind of DNA had been found (whether it was semen or another type of DNA) and the data did not prove the character or nature of the acts that the defendant committed vis-à-vis the complainant; the complainant did not testify against the second defendant as she had against the first defendant, and she had not incriminated the second defendant at all; the description in the indictment of what he was accused of doing was laconic and did not specify the elements of the crime. It thus appeared that this was a strong example of a matter in which more was hidden than was disclosed, as Justice Naor found as well, and it was therefore not possible to convict the defendant on the basis of the DNA evidence alone. However, in my view, a sweeping rule that no conviction can be based on DNA evidence alone cannot be inferred from that particular case. The fact pattern in that particular case would not, in any event, have satisfied the standards that I outlined above.

I will first discuss the arguments raised by the appellant concerning the flaws in the collection of the evidence, and I will then move on to his arguments regarding the substance of the findings. After that, I will discuss the matter of whether or not the instant case falls within the category of cases in which a conviction can be based on DNA evidence alone. My view is that the evidentiary material presented here indicates that the appellant was indeed the source of the DNA traces that were found; and that under the circumstances of the instant case, we can base the conviction on such evidence exclusively.

39.          Before I turn to an examination of the instant case, I wish to note that an appellate court will not generally intervene in the findings of fact as they have been determined by the trial court, and the reasons for this are well known (see, for example: CrimA 897/12 Salhav v. State of Israel [11] , at para. 30; CrimA 9352/99 Yomtovian v. State of Israel [12] , at pp. 643-645). Nevertheless, when the trial court has no advantage over the appellate court with respect to such findings, the appellate court must subject the trial court‘s findings to its review, and it must reconsider the issues of reasonableness, logic and common sense in connection with the lower court‘s factual determinations (CrimA 347/88 Demjanjuk v. State of Israel [13], at p. 329).

40.          Collection and handling of the evidence

The appellant claims that there were various defects regarding the handling of the evidence. The district court discussed these arguments in detail and I see no cause to interfere with its analysis or with the conclusions that it reached. Thus, for example, I am not convinced by the appellant‘s arguments that there is any reason to doubt the district court‘s conclusion that the piece of the glove came from the Exhibit itself, and that it was not – as the defense counsel claimed – attached to the Exhibit at some point while the Exhibit was being moved from the crime scene to the laboratory. The district court also dealt with the claim that police personnel who reached the scene of the crime did not examine the piece of the glove, and that the glove cannot be seen in the pictures taken at the scene. I find that the possible explanations suggested by the court regarding this issue – such as that the piece of the glove was caught between the many layers of the strip of adhesive tape in a manner that made it difficult to find, or that it was taped to the back of the Exhibit and was therefore located only afterward, in the laboratory – are acceptable arguments. They are even more acceptable in light of the fact that the district court had the opportunity to examine the Exhibit directly. In any event, a single DNA profile was developed from the piece of the glove, and that profile was identical to the profile that was developed from other parts of the piece of tape that were sampled, and which matched the appellant‘s genetic profile. Moreover, if the glove had actually come from one of the policemen who handled the Exhibit, the expectation would be that DNA traces from one of the policemen or at least a mixture of different types of DNA would have been found. A memorandum was submitted to the court (P/40) which ruled out a match between the DNA profile found on the strip of adhesive tape and on the piece of the glove, on the one hand, and the DNA samples taken from the relevant police officers, on the other. I therefore believe that there is no real doubt that the piece of the glove was originally in the Exhibit, and that it was not attached at some point while the Exhibit was being transferred from the crime scene to the laboratory.

41.          There is also no reason to interfere with the trial court‘s findings regarding the hair. The proofs presented (P/15, P/17 and P/18) all indicate that the hairs that were found on the Exhibit were discovered when the Exhibit was received at the fiber and polymer laboratory, shortly after the incident – however, they were only examined after a match had been found between the appellant‘s genetic profile and the DNA on the strip of tape and on the glove, which was some two years after the incident. The respondent explained that in light of the findings derived from the DNA testing at the biological laboratory, there was no need to examine the hairs. In other words, once there was no match between the DNA on the adhesive tape and on the glove and the samples taken from the suspects who had been questioned shortly after the incident, there was no need to examine the hairs, until the match to the appellant‘s sample was found, accidentally. I would add that the district court‘s decision indicates that the court was aware that the hairs had been sampled at a later time. Thus, even if, as the appellant claims, a representation was made to the trial court that all the findings from the crime scene had been discovered and examined at the same time, the court was not

―fooled‖ and there is therefore no need to examine the relevance of the said representation, insofar as there is any such relevance.

The forensic findings

42.          In this context, the appellant‘s counsel relied heavily on the unprofessionalism of the Prosecution‘s Expert and the consequent defects of the findings presented in her opinion. He argued, inter alia, that the statistical calculations included in the opinion are not within her area of expertise, and that the fact that she referred to the piece of the glove as being part of the adhesive tape testifies to her lack of professionalism. Here as well I accept the reasoned findings of the district court, and I will only address some of the appellant‘s claims. The appellant pointed to the fact that the Expert‘s first assessment regarding the profile obtained from the Exhibit was refuted in her later opinion. According to him, since she was mistaken in her first assessment, none of her findings in her later opinion may be relied upon either. This argument is baseless. Indeed, a memorandum prepared by Investigator Kapuza shortly after the event (P/40) indicates that the Expert had proposed to him that the profile produced from the Exhibit was similar to that of a suspect in the case, and that it was possible that the source for the DNA in the profile was one of the suspect‘s relatives. However, this conclusion was refuted after the relatives were called in for the required testing and no DNA matches were found. We are therefore dealing with what was only a very preliminary assessment – one that was never supported by an official written and organized opinion (a fact that was also indicated in the Expert‘s opinion); this assessment was indeed refuted when a more exact and scientific examination was conducted. But this has no implications for the findings that were obtained regarding the appellant in the later scientific testing, which the appellant was unable to challenge successfully, as will be explained below.

43.          The appellant also attacked the Expert‘s professionalism, charging that she is not familiar with the type of examinations that are carried out in Israel in the field of genetic identification. He based this conclusion on the fact that she stated in her testimony that the customary procedure at the Israel Police is based on an examination of only ten loci, in addition to the locus relating to gender, and that there is no facility in Israel that allows for the examination of 17 loci. (As noted, the loci are composed of the chromosomes of the DNA molecules). The Expert‘s declaration conflicts, apparently, with the testimony of Professor Motero, according to which it is possible, in Israel, to carry out an examination of 20 loci. It is agreed that the more loci that are examined, the more accurate the result will be. I agree with the district court regarding this matter as well. First, the answers given by the Expert and by Professor Motero indicate that at the Israeli Police, specifically, the norm is to examine sets of ten loci each. Professor Motero added that within other entities there are systems that  allow for the  examination of  20 loci; an example would be Hadassah Hospital. I do not believe that this matter reveals a lack of expertise or professionalism on the part of the Expert. Second, the Expert is not responsible for the fact that the Israeli Police uses a particular system for DNA examinations. This is not a matter that is up to her personal choice, and thus an argument based on this aspect should be addressed to the police and not personally to the Expert. Third, to the extent that the appellant tried to minimize the level of accuracy of the examinations carried out on the basis of the number of loci that were checked – the expectation would be that this line of argument would have been supported by an opinion based on an examination of more than 10 loci, which it was not. In any event, I note that Professor Motero stated in his testimony that although an examination of more than a specific number of loci will lead to a difference in the statistical calculation, this difference is not relevant, given the size of the Israeli population. The appellant was unable to refute this argument either.

44.          The appellant also attacked the substance of the findings. For the purpose of this discussion, we must again specify, at length, the findings of the Prosecution Expert, which, as stated, the district court adopted in full. In her opinion dated 24 February 2009, the Expert sampled five loci on the strip of adhesive tape (marked as 1A through 1E), with area 1E referring to the piece of the glove attached to the adhesive tape. She found that the DNA profiles produced from three of these sites – 1A, 1C and 1E (the glove) – were identical and matched the appellant‘s DNA profile, and that based on a statistical measurement and after a statistical correction, the appellant‘s DNA was a match to the profile of only one in more than one billion individuals. Thus, the likelihood that the DNA that was found belongs to anyone other than the appellant was only one in a billion, within the Israeli population. With regard to area 1B, the Expert noted that the DNA found represented a mixture of material from more than two individuals, and that it was not possible to rule out the appellant‘s contribution to that mixture. In Area 1D, the genetic material found was not of a sufficient quality to allow for testing (see P/32). In an additional opinion dated 18 March 2009 (P/28), the Expert examined four hairs located within the strip of adhesive tape. She found that one of the hairs, marked 18D, produced a DNA profile – in eight of the ten loci that were examined and in the gender identification locus – that matched the appellant‘s DNA profile. (No result at all was obtained at the other two loci). Here as well, the appellant‘s DNA profile was a one in a billion match to the profile that was found. In the other regions that were sampled in this opinion, the genetic material that was found was not sufficient to allow for testing.

To sum up  this issue, the Expert determined that the genetic profile produced by the two sites on the strip of adhesive tape (1A and 1C), from the piece of the glove (1E) and from the hair (18D) is a match to the appellant‘s profile, to a degree of certainty of more than a billion to one. These findings were supported, from a statistical perspective, in Professor Motero‘s opinion and in his testimony.

45.          The appellant claims that these results are not ―clean‖ or unequivocal enough to tie the DNA findings to him. He points to the fact that according to the opinion, none of the examined regions produced a complete match to his genetic profile. Thus, for example, in region 1A there was a sample of a foreign allele, the source of which could have come from an instrument or another person, and in region 18D there was a match in only eight out of ten loci. Furthermore, according to him, the fact that the DNA mixture comes from several persons weakens the court‘s conclusion that he committed the crime.

46.          I cannot accept these arguments. The district court examined, in depth, the results that were received in each region; it reviewed each of the appellant‘s claims, and decided to adopt the respondent‘s findings. Indeed, the evidence presented to the district court, the main part of which was the Prosecution Experts‘ opinions and testimonies, provides sufficient support for the conclusion that the DNA traces found on the Exhibit belong to the appellant. The Prosecution Expert testified that she was not satisfied with relying only on the match between the DNA on the Exhibit and the appellant‘s DNA that was already in the police database from a different case

– instead she asked to take another sample from the appellant in order to eliminate the possibility of human error and to verify the result in accordance with the laboratory‘s guidelines, as is also indicated in the documents in the Exhibits file (P/35). In her testimony, she expressed her opinion that the results obtained were unequivocal and that the genetic profile obtained could be viewed as ―clean‖ for purposes of a statistical calculation (see pp. 22-23 of the trial transcript, from 7 December 2009). In response to the district court‘s question as to whether in her view her submitted opinion was complete, she answered that it was, and explained the reasons for this position (p. 24 of the trial transcript, from 7 December 2009). She also explained the significance of the partial matches that had been obtained. She noted, with regard to region 1C, for example, in which a DNA profile was produced from nine out of ten loci, that this was not a situation in which one of the loci produced a profile that did not match the appellant‘s profile, which would have led to the entire finding being disregarded because of the non-match; it was instead a situation in which no result was found in some of the loci, while a full match was found in the other loci.

47.          Professor Motero supplemented her remarks by discussing the statistical aspect, noting that according to the data that had been obtained, the likelihood that the DNA traces belong to anyone other than the appellant was one in more than a billion. In particular, he referred in his testimony to the probability with respect to region 1E (the glove) and stated that there the likelihood of a mismatch was 1:7,638 billion within the Jewish Israeli population (see p. 7 of the trial transcript, from 12 April 2010). (This is a probability comparable to that found in Abu Hamad [1]). Using a statistical calculation that included a theta correction (a correction which compensates for, inter alia, the possibility of marriages between relatives within the sub- population to which the profiled person belongs), the probability of a mismatch was found to be 1:1,255 billion. Professor Motero testified that these two probabilities meant that a mismatch was ―not within the realm of possibilities‖ (see p. 9 of the trial transcript, from 12 April 2010). It should also be noted that although Professor Motero repeated that there was no need for a theta correction in this case, since the appellant does not belong to a sub-group in which there are marriages between relatives, or to any sub- group that is not properly represented in the database (such as Ethiopians and Bedouins), the district court based its decision on the probability that favored the appellant (i.e., that of 1:1,255 billion).

48.          Furthermore, it should be noted that in region 1E – the piece of the glove – there was a match for all ten loci; it was thus, undoubtedly,  a complete match, as the district court wrote. This is a detail that the appellant has chosen not to discuss, and it weakens his arguments against the other findings considerably.

49.          Moreover, the appellant‘s arguments regarding the body of the findings were not supported by any professional parties. The appellant chose not to carry out any independent testing of the samples and did not present his own scientific opinion to contradict the findings of the Prosecution Experts. This was despite the fact that this is a clear example of an issue that requires expertise. See, in this context, the comments made by Justice Mazza regarding similar behavior in Abu Hamad [1]:

‗The history of the proceeding regarding the petitioner‘s case indicates that the petitioner did not even attempt to object to the reliability of the prosecution experts‘ scientific findings. The attorney who acted as his defense counsel did question the experts; nevertheless, he chose not to present his own expert and even waived the opportunity given to him to carry out an independent genetic test. Consequently, the court was not presented with any professional dispute regarding which it needed to render a decision. Under these circumstances, the court was entitled to presume that there was no defect in the procedures involved in the execution of the genetic tests and that the results of the tests were correct . . . ‘ (ibid., [1] at para. 9).

These words are pertinent for this case as well. Although I am not certain that we need to go so far as to say that the district court was not presented with any ―professional dispute regarding which it needed to render a decision‖ in the instant case – because the appellant did attempt to refute the respondent‘s findings in his cross-examination. However, this effort was unsuccessful, as the sporadic arguments he raised were satisfactorily answered by the Prosecution Experts‘ response, and I therefore do not see that he succeeded in presenting any grounds for rejecting the respondent‘s findings.

50.          Finally, with regard to the argument that the DNA mixture found on some of the items on the Exhibit raises questions regarding the appellant‘s guilt – the discovery of a foreign profile on the Exhibit does not rule out the possibility that the appellant made use of the strip of adhesive tape when the crime was committed. The fact that traces of DNA from other unknown individuals were found does not create a reasonable doubt regarding the possibility of the appellant‘s involvement in the crime.

51.          Thus, the evidence presented indicates that the DNA traces that were found did come from the appellant. Can the appellant‘s conviction be based exclusively on such findings? I will now respond to this question.

Conviction on the basis of the DNA that was found

52.          This issue involves a number of pieces of evidence which match the appellant‘s genetic profile – the two samples from the strip of adhesive tape, the hair and the glove. The Expert could not determine the particular type of cells that were the source of the DNA that was found, and assumed that they were either skin or saliva cells. She noted in her testimony that she chose to sample the edges of the strip of tape because that is generally where DNA traces are found (either because skin cells from the user adhered to the strip, or because the user tore the strip off from the roll by using his or her mouth). When questioned regarding the matter of the exact location on the strip from which she took the samples and the length of the section that she sampled, the Expert responded by saying that she could not point to the exact spot or to the exact length of the piece, and she explained that when she received the Exhibit from the fiber and polymer laboratory, the adhesive tape strip was open. She also noted on several occasions that the tape was sampled at four different locations (in addition to the hair and the glove). She did not know whether the DNA was found on the piece of the glove had been taken from its external side or from its inner side. She testified that she could not rule out the possibility that had been raised – that the DNA that had been on the tape was transferred to the glove. She also testified that a momentary touch of a roll of tape will not generally leave a trace of DNA –―its not someone who just took the tape from one place to another‖ – and that only the use of the tape would lead to that result (see p. 4 of the trial transcript, from 7 December 2009).

53.          The above details indicate that this is not a situation in which the court is presented with a single item of DNA evidence that was produced from a single segment – rather, the evidence consists of a group of DNA samplings produced from four different locations on the Exhibit: the two pieces of adhesive tape that were taken from different regions on the Exhibit, the piece of the glove that was found inside the tape, and the hair that was also found attached to the tape. Even if there had been some ―internal pollution‖ within the Exhibit, such that the appellant‘s DNA was transferred from one part to another – that fact does not negate the presence on the Exhibit of DNA that matched the appellant‘s details. The Expert‘s testimony indicated that the presence of DNA on adhesive tape is generally the result of actual use that was made of the tape, and not of momentary contact with it – a fact that the appellant did not attempt to contradict. Even if the samples were taken from a piece of the tape that was only ten centimeters long, that fact would not be sufficient to rule out the possibility that it had been used. Additionally, the DNA found on the Exhibit and which belonged to the appellant was found in the course ofa random sampling – according to the Expert, the edges of the strip were cut randomly. I do not believe that a random sampling that produces a number of locations bearing the DNA of the appellant weakens the evidence – to the contrary, it strengthens it.

54.          Although the DNA evidence was found on a moveable object which may have been brought from a different place to the crime scene, the evidence indicates that the use that produced the DNA traces took place at the scene of the crime. Thus, for example, Re‘ut Biton testified that she heard the noise of someone attaching adhesive tape coming from the door, and that when she opened the door she saw a person (whom she could not identify) who quickly removed his hands from the apartment door, apparently after the taping, and ran away (see pp. 5 and 10 of the trial transcript, from 17 June 2009). We note again that momentary contact with a roll of adhesive tape would not result in the presence of DNA on the tape – only the use of that tape can produce such a transfer of DNA. Given the characteristics of a roll of adhesive tape, it is difficult to believe that the criminal would have re-used a strip of tape that had been previously used by the appellant. As the district court astutely noted:

‗ . . . A roll of adhesive tape is not the type of product which is re- used. This is due to, inter alia, the character of the product, because of which it is almost impossible to revert (the roll of adhesive tape) back to its previous state‘ (p. 20 of the decision).

55.          We now come to the appellant‘s version of the events. During his questioning and testimony, he denied any connection with the incident, and claimed that he did not know the person who lived in the apartment on the door of which the grenade was taped. He suggested that someone had taken the adhesive tape from the convenience store in which he worked, or removed it from his car. The appellant did not recall what he did on the day of the incident, and noted that two and a half years had passed since that time. The district court found that these hypotheses had not been proven, even on a prima facie basis, and that they were insignificant explanations that did not create any reasonable doubt regarding his guilt. I agree with this conclusion and I have nothing to add, except to repeat the district court‘s reasoning regarding this matter. The court noted that a roll of adhesive tape is a simple and cheap product and that it is logical that anyone who wishes to use one will use a roll of tape that is already in his house or will go out and buy a new roll. It is also unlikely that a person would re-use a used roll of tape, as described above. Moreover, the appellant has not made any claim regarding the existence of a person with whom he has a disagreement who would wish to incriminate him by planting the adhesive tape at the scene of a crime. Thus, the possibility that he has been deliberately framed must be rejected.

56.          I would add that during his interrogation at the police station (P/3), the appellant, who lives in Kiryat Gat, stated that he often goes out to Ashdod at night. He also stated that he has a friend who lives in Ashdod, whom he has visited on several occasions, but never at night. The appellant agreed to point out the location where his friend lives (the demonstration report, P/6) and it appears that his friend lives in a building close to where the Biton family‘s apartment is located. When the interrogating police officer asked him if it could be that the Biton family‘s apartment was in the building in which he visited, he stated that it was possible that he went there by mistake upon returning from a night of entertainment and then called his friend who informed him of his error (P/6, at p. 3). When, during his cross-examination, he was confronted with the question of how it was that he had never visited his friend at night but may have accidentally been in the adjacent building when returning from a night out, he changed his story and stated that this had been the only time that he visited his friend at night, and that all the other visits took place during daytime hours (see pp. 24-25 of the trial transcript, from 1 November 2010). When he was asked why he had not provided that information during his interrogation, he responded that much time had passed since then, and he had not recalled the night-time visit when he was being questioned by the police. The fact that the appellant was present so close to the crime scene, and the change in his story regarding the hours during which he visited his friend, provide a certain level of support for the DNA evidence, even though he could have been convicted even without such support.

57.          Does the considerable time that passed between the occurrence of the incident and the appellant‘s police interrogation regarding the incident carry any weight? The appellant believes that he can raise a ―principles of justice defense pursuant to s. 149(10) of the Criminal Procedure Law [Integrated Version] 5742-1982, arguing that his ability to defend himself was impaired because he was required to provide explanations after so much time had passed since the incident. Included in this, he argued, is his inability to present an alibi defense. He also argued that the police interrogators did not inform him that the incident took place on a Friday night – a fact which ruled out the possibility of his involvement in the incident, as he is a Sabbath observer. From this perspective as well, I did not see a need to interfere with the district court‘s holding. I do not dispute that the time that had passed before the appellant was questioned had the effect of impairing his ability to mount a defense, but this impairment is not a result of any defects in the process followed by the Israel Police, or in its conduct. The police are not to be blamed for the fact that evidence tying the appellant to the crime was found, by chance, only after two years had passed – when the police had spent this period of time investigating every possible suspect, using every method available to them. Furthermore, the interrogators informed the appellant of the exact date on which the crime attributed to him had taken place. The appellant, knowing that he was a Sabbath observer, could have clarified for himself the day of the week on which the incident had occurred. Either way, the date of the incident was expressly mentioned in Re‘ut Biton‘s testimony, who was the first witness to testify for the prosecution, but the Sabbath observer argument was raised for the first time only a year later. Under these circumstances,  I do not believe  that the way the  case was handled conflicted in a substantive way with the principles of justice and equity.

58.          To sum up, the aggregate DNA evidence, combined with the nature of the item on which it was found, while taking note of the appellant‘s theoretical explanations, leads to a single logical conclusion – that the appellant committed the crimes with which he is charged in the indictment. The appellant carried the grenade from its location to the Biton family apartment, where the grenade was taped to the apartment door. There is no dispute that the grenade falls within the definition of the word ―weapons‖ in

s. 144(c)(3) of the Law. The evidentiary material shows that the appellant was involved in taping the grenade to the piece of cardboard and to the door of the apartment, and in this sense the appellant held the weapon on his body or within his reach in a manner that allowed him to use it when needed. Thus, all the elements of the weapons offense, as set out in s. 144(b) of the Penal Code, are present (see Y. Kedmi, Criminal Law, Part 4 1973 (2006). Additionally, I have no doubt that this was an act that was intended, at the least, to constitute intimidation, as that term is defined in s. 192 of the Law. As the district court noted, a person who tapes a grenade to the door of a family‘s home does so with the intention of harming the residents of the home, or at the very least with the intention of intimidating them, particularly when the residents of the house do not know whether the grenade‘s safety mechanism will or will not be released. I therefore believe that the elements of the crime of intimidation are also present.

The elements of the offense set out in s. 413 of the Law have also been proven; s. 413 deals with the possession of an item that is suspected of being stolen. The district court held, in this context, that ―unlike other weapons, the possession of which is regulated by statute (see for example the Firearms Law, 5709-1949), there is no statutory regulation for the possession of a fragmentation grenade, and no argument can be made that the defendant was licensed to possess it. There is no dispute that a fragmentation grenade is not a product that can be legally and properly purchased from a business or in any other place‖ (p. 25 of the decision). It can be inferred from this that a fragmentation grenade creates, by its very essence, a non-rebuttable presumption that the item should be suspected of being stolen. However, it is possible to think of ways in which a fragmentation grenade can be obtained in an improper or illegal fashion but not by way of theft, as required by s.

413. (This is in distinction from the provisions of ss. 411 and 412 of the Law, which deal with items that have been obtained through the commission of a crime or a felony. See Y. Kedmi, Criminal Law, Part 2 (2005) at p. 820). However, in our case the fragmentation grenade had the appearance of an IDF grenade. The appellant even noted, on his own initiative that ―there are grenadeslike this in the army‖ (see P/4, Q. 14), when he was shown a picture of the grenade. Under these circumstances, it appears to me that we can find that a reasonable person, viewing the matter from the appellant‘s perspective, would understand that this is an item which should have been suspected of being a grenade that was stolen from the security forces.

Appeal of the sentence

59.          As mentioned, the appellant was sentenced to 24 months in prison and a 12 month suspended sentence, and ordered to pay compensation to Reut Biton in the amount of NIS 2,500. I see no reason to intervene with regard to this sentence. The appellant taped a fragmentation grenade to the door of the Biton family‘s home; such a grenade is a powerful assault weapon, the use of which is likely to cause random death. The police bomb squad who handled the grenade at the scene offered contradictory opinions of whether the taping of the grenade was intended to serve as intimidation only, or whether the taper had actually intended to explode the  grenade, but was  interrupted because the door opened. This question was not decided by the district court in its decision, but the court expressed its opinion in its sentencing decision: that given  the manner in which the grenade was attached with  a string attached to the safety mechanism, the intention was to set it off. In my view, even if the intention had only been to intimidate, the sentence that was given was appropriate in light of the high risk involved in the use of this type of weapon and in the manner in which it was attached. This risk was one that the appellant took upon himself through his actions. Added to all this is his serious criminal record, which includes many convictions for property and drug offenses, for which he had previously served several prison sentences. He also committed crimes after this incident, despite his claim that he has been reformed since his marriage in 2005. Given the relevant considerations, I believe that the sentence that was imposed on the appellant is an appropriate one and accurately reflects the severity of the acts that he committed.

Final comments

60.          For the reasons described above, I suggest to my colleagues that we deny both parts of the appeal.

 

Justice U. Vogelman

 

I join in Justice E.Arbel's opinion, which holds that there is nothing in principle that prevents the conviction of a defendant on the basis of DNA evidence alone and that, under the circumstances of the case before us, there is no reason to intervene in the district court‘s decision.

 

Justice T. Zilbertal

 

I concur.

 

Decided as per Justice E. Arbel 8th of Tishrei 5773.

24 September 2012.

Full opinion: 
PDF icon Almaliach v. State.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/12/490/001/b09/12001490.b09.pdf

Ministry of Palestinian Prisoners v. Minister of Defense

Case/docket number: 
HCJ 3368/10
Date Decided: 
Sunday, April 6, 2014
Decision Type: 
Original
Topics: 
Constitutional Law
Basic Law: Administration of Justice
Basic Law: Freedom of Occupation
Basic Law: Human Dignity and Liberty
Equality Before the Law
Prisoners’ Rights
Criminal Law
Conviction
Enforcement
Local application
Offenses
Prisons Ordinance
Sentencing
International Law
Detention of prisoners
International Humanitarian Law
Occupied territories
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

The Petitions request shortening the periods of detention prescribed in the security legislation in the West Bank, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the “Order”), such that they match the periods applicable to Israeli citizens in the West Bank and those of detentions prescribed in Israel.

 

The High Court of Justice (Justice E. Arbel, Justices Amit and Shoham concurring), issued a partial judgment as follows:

 

The High Court of Justice discussed the constitutional human right to liberty and its importance in a democratic system. It further discussed the right to due process before denying one’s liberty. The Court found it warranted that such person be able to respond and make arguments prior to restrictions on such a fundamental right. Additionally, the High Court of Justice discussed the public interests in exposing criminals and preventing crime, as well as thwarting security offenses. Therefore, it is necessary to strike a balance in the constant tension between security and protecting suspects’ rights that exists in the Israeli reality.

 

On the one hand, a proper legal procedure is an essential element in ensuring the proportionality and constitutionality of a detention for interrogation purposes. In principle, the suspect’s appearance before a judge should not be viewed as an obstacle but rather as a fundamental requirement for an effective and constitutional detention for interrogation purposes. This follows from the customary fundamental approach that judicial review is inherent to the detention process. Therefore it is necessary to adjust interrogation methods to interruptions that allow an effective and fair judicial procedure to take place. On the other hand, the security legislation was created in light of a complex security situation in a territory under belligerent occupation (occupatio bellica), where special security conditions dictate establishing arrangements that are different than those in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects.

 

During the course of the Petition’s proceedings, the Respondents took a far-reaching approach to shortening the periods of detention such that they would more closely match the detention periods in Israel. Such change would aim to reduce, as much as possible, the infringement of Palestinian detainees’ rights. Considering the distinctions inherent in the different conditions between Israel and the West Bank, and in light of the dramatic changes that were made, whose “on the ground” implementation must be examined over time, the High Court of Justice ruled that in terms of the maximum periods of pre-indictment detention of adults suspected of committing security offenses, and in the scope of offenses that are defined as security offenses, the Petitions were exhausted and therefore are to be dismissed. However, with respect to the periods of detention of minors, the periods of detention of adults suspected of other offenses, and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) the High Court of Justice ordered the Respondents to file an update notice.

Voting Justices: 
Arbel, Edna
Primary Author
majority opinion
Amit, Isaac
majority opinion
Shoham, Uri
majority opinion
Full text of the opinion: 

The Supreme Court sitting as the High Court of Justice

HCJ 3368/10

HCJ 4057/10

 

Before:                                                The Honorable Justice E. Arbel                                                                                  The Honorable Justice I. Amit                                                                                    The Honorable Justice U. Shoham

 

The Petitioners in HCJ 3368/10:   1.   The Ministry of Palestinian Prisoners

                                                      2.   Adv. Fahmi Shakirat

                                                      3.   Adv. Kamil Sabbagh

                                                      4.   Adv. Kareem Ajwa

 

The Petitioners in HCJ 4057/10    The Association for Civil Rights et al.

 

v.

 

The Respondent in HCJ 3368/10: 1.   The Minister of Defense

 

The Respondent in HCJ 3368/10

and in HCJ 4057/10                      2.   GOC Central Command, Commander of IDF Forces in the Region

 

                                                                        Petition to Grant an Order Nisi

 

Date of Session:                                           14th of Sivan, 5773 (May 23, 2013)

 

On behalf of the Petitioners

in HCJ 3368/10:                            Adv. S. Ben Natan

 

On behalf of the Petitioners

in HCJ 4057/10:                            Adv. L. Margalit

 

On behalf of the Respondents:     Adv. A. Helman

 

P A R T I A L   J U D G M E N T

 

Justice E. Arbel:

 

The Petitions before us, the hearings of which were united, address the question why not shorten the periods of detention which are prescribed in the security legislation in the Judea and Samaria region, including in the Order Regarding Security Provisions [Consolidated Version] (Judea and Samaria) (no. 1651), 5770-2009 (hereinafter: the "Security Provisions Order" or the "Order"), which came into effect on May 2, 2010. In the framework of the Petitions, this Court was requested to determine periods of detention which shall be shorter than those determined in the Security Provisions Order, as required under international law and in a manner that corresponds with the periods of detention that are customary in Israel.

 

 

Background

 

  1. Petitioner 1 in HCJ 3368/10 is the Ministry of Prisoners' Affairs in the Palestinian Authority, to which, under the security legislation, most of the detainees belong, and which attends to their welfare, their families, their legal representation and which engages lawyers who are members of the Israel and Palestinian Bar Associations. Petitioners 2-4 are lawyers who represent, on behalf of the Ministry of Prisoners' Affairs, suspects who are detainees under the security legislation. The Petitioners in HCJ 4057/10 are the Association for Civil Rights in Israel, "Yesh Din" – Volunteers for Human Rights and the Public Committee against Torture in Israel.

 

  1. The Petitioners filed their Petitions in light of the legal reality that existed at the time the Petitions were filed, pursuant to which the law applicable to Israeli citizens in the Judea and Samaria region (hereinafter: the "Region"), is different than the law applicable to Palestinians in the Region. In the framework of the Petitions, the said Petitioners requested to shorten the periods of detention prescribed in the Security Provisions Order such that they will be the equivalent to the periods applicable to Israeli citizens in the Region and will correspond to the periods of detention that are customary in Israel.

 

The Law that was in Effect at the Time the Petitions were Filed

 

  1. The period of the pre-indictment detention and the period of detention until the end of proceedings are grounded in Article C of Chapter C of the Security Provisions Order, which addresses the arrest and release of Palestinian detainees in the Region. Sections 31 and 32 of the Security Provisions Order prescribed the following with respect to detention prior to judicial review:

 

"31.   (a) A soldier may arrest, without an arrest warrant, any person violating the provisions of this order or if there is cause to suspect that he committed an offense under this order.

(b) A person arrested in accordance with sub-section (a) shall be transferred as soon as possible to a police station or place of detention as determined in this order.

(c)   An arrest warrant against a person arrested in accordance with sub-section (a) must be received within a reasonable time; if an arrest warrant is not given within 96 hours from the time of his arrest - he shall be released.

(d) The Commander of the IDF Forces in the Region may authorize any person to order the release of a person arrested in accordance with sub-section (a), provided that no arrest warrant pursuant to the provisions of this article was issued against such detainee.

 

32.     (a)   A police officer who has reasonable grounds to assume that a person violated the provisions of this order or who becomes aware that the investigation material that was gathered against the person who was arrested in accordance with sub-section 31(a) necessitates his continued detention, is authorized to issue a written arrest warrant for a period which shall not exceed eight days from the time of his arrest.

(b)   If an arrest warrant as noted was issued for a period shorter than eight days from the time of his arrest, a police officer may extend it in writing, from time to time, provided that the total periods of detention shall not exceed eight days from the time of his arrest."

 

With respect to the extension of the detention prior to the filing of an indictment, Sections 37 and 38 of the Security Provisions Order prescribe as follows:

 

"37.   A judge is authorized to grant an arrest warrant and to extend the duration of the detention, provided that the arrest warrant or the detention extension shall not be for a period exceeding thirty days at a time and that the total period of detention in accordance with this section shall not exceed ninety days.

 

38.     A Military Court of Appeals judge, may, at the request of the Region's legal counsel, order the extension of the detention of a person who was arrested under Section 37, or his renewed arrest, for a period which shall not exceed three months; if such an arrest warrant is granted for a period of less than three months, a Military Court of Appeals judge may extend it from time to time, provided that the total period of detention in accordance with this section shall not exceed three months."

 

With respect to the period of detention until the end of proceedings, Section 44 of the Security Provisions Order provides as follows:

 

"44.   The matter of a defendant who after being indicted was held under detention for the same indictment for a cumulative period that amounted to two years and whose trial in the court of first instance did not end with a verdict, shall be brought before a judge of the Military Court of Appeals.

The judge will hear the defendant's matter and order his release, conditionally or unconditionally, unless the judge believed that the circumstances of the matter, including the severity of the offense attributed to the defendant and his level of dangerousness, the fear of him fleeing justice and the reasons for the prolonging of proceedings, do not justify his release.

(b)   If the judge decides that the circumstances of the matter do not justify the defendant's release, the judge may instruct the defendant's continued detention for a period which shall not exceed six months, and may reorder this from time to time."

 

In accordance with that which is stated above, at the time the Petitions were filed with this Court, a suspect who was arrested under the Security Provisions Order could have been held under detention up to eight days without judicial review, up to 90 days before the filing of an indictment, and with court approval – up to six months. Additionally, a defendant could have, before his trial was completed, been held under open ended detention, subject to periodic extensions every six month, after two years from the commencement of his detention.

 

4.As opposed to the detention periods applicable to Palestinians in the Region, which are listed in the Security Provision Order, Israeli law prescribes detention for citizens of up to 24 hours (which can be extended up to 48 hours) until being brought before judicial review, detention of up to 30 days, which can be extended up to 75 days with the Attorney General's approval, before filing of an indictment, and detention of nine months, which can be periodically extended every three months, until the end of proceedings (Sections 17, 29, 30, 59, 60, 61 and 62 of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996). Additionally, certain exceptions are prescribed in the Israeli law with respect to suspects who are arrested for security offenses and with respect to minors who have been arrested (Criminal Procedure (Arrest of a Security Offense Suspect (Temporary Provision) Law, 5766-2006 and the Youth (Adjudication, Punishment and Methods of Treatment) Law 5731-1971).

 

The Claims of the Petitioners in HCJ 3368/10

 

5.The Petitioners claim, through Adv. Smadar Ben Natan, that the periods of detention prescribed in the Security Provisions Order that applies to the Palestinians in the Region are significantly longer than the standards prescribed for such matters both in international law and in the corresponding periods in Israel. They claim that these periods infringe the right to due process and the protection against arbitrary infringement of liberty which are granted to the residents of the Region, both by virtue of international law and by virtue of the fundamental principles of Israeli law. According to the Petitioners, although at hand are two different regions that are subject to different legal regimes, however both are under the control of the State of Israel.

 

6.The Petitioners further claim that the far-reaching changes that have occurred in Israeli law have hardly been reflected in the military legislation in the Region. They claim that experience shows that the extended periods of detention impact the manner in which arrest and interrogation procedures are conducted, such that they excessively infringe detainees' rights: de facto, the detention of detainees who are arrested in an initial arrest, is not requested to be extended before the lapse of the eight days allowed by the Security Provisions Order; many of them are not interrogated at all during entire days of this detention period and during subsequent detention periods; in many cases, detainees are released after four, five or even eight days without procedures being taken with respect thereto and without a cause of arrest against them being examined by a judge. According to the Petitioners, such an extended period of detention creates fertile ground for inappropriate treatment, for pressure and violence in the interrogation, such as the arrest of a relative without any real cause as a means of pressure.

 

7.The Petitioners add that the proceedings at the Military Courts after the filing of an indictment, are conducted ponderously: Most of the cases end with plea bargains since defendants know that if they chose to conduct a trial, they will stay in detention for a long and unlimited period of time; in the few cases that do go to trial, the periods of time between hearings are extended, the number of judges is small in relation to the volume of the cases, and this reality is created and encouraged by the unlimited detention until the end of proceedings.

 

8.The Petitioners further state that until the implementation of the Disengagement Plan, detainees from the Gaza Strip were subject to the provisions of the Security Provisions Order and that since the Disengagement detainees from the Gaza Strip are brought for detention extensions before the Israeli Courts, subject to Israeli law. According to them, the Israeli law also applies to the population of the settlers. According to the Petitioners, this reality constitutes a violation of equality among people – a legal apartheid. The Petitioners emphasize that not all of the offenses addressed in the Military Courts are security offenses, but the laws of detention apply to all of the detainees.

 

9.According to the Petitioners, the judicial review in the detention proceedings is an integral part of the suspect's right to due process. The very lengthy periods of detention are not justified due to security needs or due to circumstances that are unique to the Region. Therefore, they claim, there is a duty to act in accordance with similar standards in protecting human rights in the procedural criminal proceeding and they request to cancel Sections 31A, 32 and 44 of the Security Provisions Order, to shorten the periods of detention and to determine periods of detention that correspond to those that are customary in Israel.

 

The Claims of the Petitioners in HCJ 4057/10

 

10.These Petitioners, through Adv. Lila Margalit, also requested to amend the Security Provisions Order and they raise similar claims against the periods of detention prescribed in the Order. They claim that the periods of detention severely and gravely infringe the fundamental rights of the Palestinian residents of the Region, their right to liberty and their right to be free of arbitrary arrest, as well as their right to due process, dignity and equality, to appropriate means of supervision in order to ensure fair interrogation and in order to prevent torture. These detainees are subject, so they argue, to illegitimate methods of interrogation and to improper treatment on behalf of the interrogation authorities. These infringements derive, according to the Petitioners, both from the fact that their treatment is arbitrarily different than the treatment of Israelis living in the Region and from the duration of the periods of detention which in and of themselves are exaggerated. According to the Petitioners, these infringements are contrary to the provisions of the customary and contractual international law applicable in the Region and to the principles of Israeli public law which apply to Israeli authorities. They argue that these infringements do not serve an appropriate purpose, are not proportionate and are not reasonable. According to the Petitioners' opinion, it is hard to describe a more severe and grave infringement of human rights than the illegitimate situation in which two "categories" of people who are distinguished from each other based on their national origin, are living beside each other. Even regardless of the discrimination allegation, the Petitioners claim that the periods of detention in the Security Provisions Order are contrary to the principles of international law which apply to the Region and to the principles of public law that apply to any action of Israeli authorities. According to them, immediate and frequent judicial review of the detention of a suspect is a necessary condition of its reasonableness and proportionality; an extended detention without judicial review is not proportionate.

 

11.The Petitioners add that the military prosecution's claim that the judicial review of the detention is to be delayed in order to enable the "formulation of a reasonable suspicion", attests that the Order is used for making arbitrary arrests, without there being a reasonable suspicion against the detainee. Therefore, the Petitioners claim that the initial detention period of Palestinian detainees is meant to enable arresting people without there being a reasonable suspicion against them; to protect the interrogation authorities from the court's "intervention", to grant the interrogators "minimal time" to exhaust the interrogation, to avoid the "disturbance" thereof that is involved in presenting the suspect before the judge, and to avoid the logistical difficulties involved in applying immediate judicial review.

 

12.According to the Petitioners, the lack of distinction between minors and adults in the security legislation regarding the periods of detention and the lack of sufficient consideration of the principle of the child's best interest during arrests of minors, result in a disproportionate infringement of children's rights which are grounded in international law and which are recognized by Israeli Law. The basic premises that Palestinian minors are worthy of less protection than Israeli minors also living in the Region, is, in their opinion, illegitimate.

 

13.The Petitioners add that the judicial review of the detention is meant to ensure the justification, from the outset, of the continued denial of a person's liberty and that there is no place to delay it in order to enable the authorities to progress with their interrogation. Additionally, judicial review also has a role in supervising the manner the interrogation is conducted and serves as an important guarantee against the application of illegitimate means of pressure during interrogation and against the use of the detention itself to make the suspect feel completely disconnected from the outside world and subject to the mercy of his interrogators, while his dignity and his right to be silent are being infringed. According to the Petitioners, interrogation that is far from the court's watchful eye, could lead to the use of illegitimate means of interrogation which violate the detainee's dignity and even the integrity of his body, and therefore, in their opinion, constitutes a breach of the State's duty to prevent torture and inhumane treatment of detainees. The lack of judicial supervision is even more severely significant in cases in which the Palestinian detainee is prohibited from meeting with a lawyer, contrary to international law. According to the Petitioners, the concern regarding the use of illegitimate means of interrogation against Palestinians is not a  mere concern, and they refer to reports that were published by human rights organizations in 2007. According to them, purely logistic considerations or administrative difficulties cannot justify the infringement of a human's right to liberty, equality and dignity.

 

The Respondents' Response

 

14.The Respondents' response was presented by Adv. Aner Helman. Even since the letters of response to the Petitioners' approaches, prior to the filing of the Petition, the Respondents stated that the issue of shortening the periods of detention in the Region is being examined in the framework of in-depth staff work that has commenced long ago. It was further written that the security legislation is based on security and public order considerations and this is also true with respect the laws of detention, and that the differences between the law customary in the Region and the law customary in the State of Israel in this context derive from relevant security considerations.

 

15.In the response which was filed on the Respondents' behalf to this Court on January 9, 2010, the Respondents reiterated their claim that it is not for no reason that the periods of detention prescribed in the Security Provisions Order are different than those prescribed in Israeli law. According to the Respondents, the nature of an area that is held under belligerent occupation (occupatio bellica), even if long-term occupation, necessitates that the special security conditions prevailing therein dictate that different arrangements be prescribed than those customary in the occupying state.

 

16.For example, due to the security situation, the ability to move in the Region is limited, and at times, in light of security conditions which delay or prevent reaching the location, it is not possible to perform interrogations expeditiously, or even at all, in the area; some of the areas of the Region are under Palestinian control and it is not possible or very difficult to reach witnesses and suspects living there; in many cases, suspects who need to be interrogated find shelter in areas that are under Palestinian control making their interrogations and the interrogations of their accomplices who were arrested by the security forces, difficult; in most of the cases, the potential witnesses refuse to cooperate with the security forces, making interrogations difficult; in security interrogations the persons being interrogated acted out of nationalist and ideological motivation, and their interrogation is very difficult. Naturally, there is a minimal period of time that is required until their interrogations will produce initial evidence to support the intelligence information that has been received. At times, a certain interval is required between the time information is received and the time it can be used against the party being interrogated, since using intelligence information very soon after its receipt could "burn" the source of information and at times could even risk his life; in a large share of the security interrogations it is not possible to determine the location and time of the arrest in advance, resulting in the delay of the initial interrogation and it being more difficult; all of the detainees who are suspected of committing severe security offenses are transferred to one of four interrogation facilities which are located in Israel for their interrogation. At times, such transfer, in and of itself, requires not insignificant amounts of time. It is also necessary to exhaust the initial interrogation of the person being interrogated before bringing him before a judge, so as to avoid the possibility of him escaping to the Region; at times it is necessary to arrest many hundreds of people, like for example during the period of the "Defensive Shield" operation in 2002, and it is not possible to prepare to bring all of them before a judge during a short period of time.

 

17.The Respondents argue that these grounds require determining that it is appropriate to allow detaining a suspect for a reasonable period of time that is required in order to formulate initial evidentiary material prior to bringing him before a judge. The Respondents further state that international law does not limit the number of days that a person may be detained without judicial involvement, but rather expresses a principle pursuant to which the decision regarding the detention should be brought to a judge without delay.

 

18.Having said that, the Respondents notified that in recent years staff work has been conducted in the IDF and further on in the Ministry of Justice, by the Deputy Attorney General (Criminal Matters), together with the Deputy Attorney General (Special Assignments) and the Deputy Attorney General (Consultation), which is meant to examine the possibility of shortening the maximum periods of detention in the Region. The Respondents updated that in the framework of the staff work, a decision was reached that, considering the current security situation, at this time, it is possible to significantly shorten the maximum period of detention until bringing a detainee before a judge, however it is not appropriate to make the arrangement which shall be applicable in the Region in this matter the same as the arrangement which is applicable in Israel. The Respondents specified the manner of shortening the periods of detention:

 

19.With respect to offenses that are not security offenses, it was decided that, as a rule, the authority of an initial detention until presentation before a judge shall be for 48 hours; additionally, it will be possible to delay the presentation of the detainee before a judge for an additional 48 hours, as per the decision of an administrative authority, if there is a special cause, such as, for example, urgent acts of interrogation. It was further decided that the arrangement shall be re-examined upon the lapse of two years from the effective date of the amendment of the Order. As for detainees of security offenses, it was decided that the rule that shall be prescribed is that the initial period of detention until presentation before a judge shall be 96 hours at most, with an administrative party being able to extend such period by 48 additional hours, in cases in which the Head of the Interrogation Department at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in substantially prejudicing the interrogation. It was also decided that in very special circumstances it will be possible for an administrative party to extend the period of detention until being brought before a judge by 48 additional hours, beyond the above said 11(sic.) hours (six days), in cases in which the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation in order to bring a detainee before a judge could result in harming the performance of an essential act of interrogation that is meant to prevent harm in human lives. Considering the concern that was raised by security entities regarding the operational implications of these modifications, it was determined that this arrangement would be examined upon the lapse of two years from the date the amendment to the Order became effective.

 

20.It was further decided that the extension of an initial detention by a judge will not exceed 20 days and that it will be possible to re-extend the detention for additional periods which shall not exceed 15 additional days each. The extension of detention prior to the filing of an indictment which exceed 60 days shall be subject to the approval of a senior legal authority in the Region.

 

21.The Respondents added that in the framework of the staff work it was decided to add a provision to the Order pursuant to which if a person was arrested and his interrogation ended he shall be released from detention, however, if the prosecutor declared that they are about to file an indictment against him and the court was convinced that there is prima facie cause to request his detention until the end of proceedings, the judge may extend the detention on this  ground for a period which shall not exceed eight days. It was also decided that at the initial stage the period of detention until the beginning of trial shall be 60 days, and that the possibility of shortening this period to 30 days shall be examined upon the lapse of two years.

 

22.The Respondents further updated that it was decided to amend Section 44 of the Security Provisions Order so that with respect to offenses that are not security offenses, the period stated for holding the first hearing before a judge in the matter of a detainee who is under detention until the end of proceedings shall be one year from the date the indictment was filed. With respect to security offenses, the period currently stated in the Order – two years – shall remain in effect, and this matter shall also be examined upon the lapse of two years from the time the arrangement shall become effective. The Respondents estimated that the required adjustments to the modifications shall last approximately six to nine months and that the Order shall be amended accordingly, immediately thereafter.

 

23.The Respondents requested to dismiss in limine the relief requested in HCJ 4057/10 to make the periods of detention of minors in the Region the same as the periods of detention of minors in Israel, and claimed that the Petitioners did not exhaust the proceedings in this matter. According to them, this matter should not be mixed with the matter of the detention of adults in the Region. According to the Respondents this is a "premature petition" since it was already decided to conduct staff work on this matter as well.

 

Hearing of the Petititons and Update Notice

 

24.On January 12, 2011, a hearing took place in this Court before President D. Beinisch and Justices N. Hendel and I. Amit. At the end of the hearing it was decided that within five months the Respondents would file an update notice together with a draft of the Order which shall be issued in accordance with the principles that were formulated. The Bench of Judges even instructed the Respondents to consider its remarks when drafting the Order, especially with respect to the duration of the period of time until first bringing a detainee before a judge and with respect to the period of detention until the end of proceedings after an indictment has been filed.

 

25.On June 1, 2011, the Respondents filed an update notice, and according thereto, in an additional meeting that was held following the court hearing, it was decided to shorten the period until a detainee, who is detained until the end of proceedings for security offense, is brought before a judge, from two years to 18 months. It was further decided that it is vital that the manner of the actual implementation of the arrangement which the staff work decided upon with respect to the maximum period of detention until bringing a suspect before a judge, be examined for a period of approximately two years, before an additional re-examination of the matter. In the framework of this notice, the Respondents added that it is essential, prior to actually shortening the detention periods in the Region, to examine the developments that were scheduled to occur in the Region in September 2011 onwards, in light of the Palestinian Authority's notice that it intends to approach the United Nations General Assembly this month with a request to recognize the "State of Palestine". The Respondents updated that the staff work has not yet been completed and that they expect the Order to be amended during the month of January, 2012.

 

26.Both the Petitioners in HCJ 3368/10 and the Petitioners in HCJ 4057/10 responded to that stated in the update notice. According to them, the shortening of the detention period that the Respondents declared is insignificant and cannot cure the severe defects and infringement of rights that are embodied in the security legislation in the Region. According to the Petitioners, the changes that were made shall not have any practical impact on the arrest procedures of Palestinians who are residents of the Region and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement in the infringement of the right to liberty, of due process and of the presumption of innocence. The Petitioners reiterated their claim that judicial review is an integral part of the arrest process and that there is no justification to delay the judicial review for such an extended period of time. They argued that the initial detention period and the detention until the end of proceedings period constitute an arbitrary infringement of the right to liberty and therefore they insist on their petitions to issue an order nisi in the Petitions and to instruct the Military Commander in the Region to determine periods of detention that correspond with international standards and with those that are customary in Israel. The Petitioners further claimed that there is no reason not to amend the Order due to uncertain future developments.

 

27.The Petitioners in HCJ 4057/10 added that the list of security offenses that is included in the Order spans over dozens of sections and includes offenses such as conducting a procession or an unlicensed meeting, waving a flag without a permit, printing "material which has political significance" without a license from the Military Commander, and the like. The list also includes many "public order" offenses such as throwing objects, disturbing a soldier, breaching curfew or a closed military zone order and the like, thus making the arrangement that relates to offenses that are not security offenses predominantly theoretical. In their opinion, the appropriate criterion for determining the periods of detention is the timeframe applicable to Israelis who also live in the Region. The Petitioners also drew attention to the inconsistencies between the Respondents' notice and the draft of the Order. According to them, the amendment of the Order should not be avoided due to a concern regarding unusual events.

 

Additional Update Notices

 

28.On November 22, 2011, the Respondents filed an additional update notice,  according to which, it was told in meetings that were held at the Deputy Attorney General (Criminal Matters), that the IDF has completed the staff work examining adding the necessary staff positions at the military courts and at the Judea and Samaria Region Prosecution in order to shorten the detention period in the Region and that a decision was even already reached to add the new necessary staff positions, subject to the amendment to the Order becoming effective and to the time required for the procedure of selecting and appointing new judges to the court. It was also clarified that due to a dispute between the Ministry of Finance and the Ministry of Public Security regarding the source of the budget, there is still no budgetary solution for the Police and Prison Service's needs for implementing the staff work and that a few additional months shall be required after such a solution is found in order to recruit and train personnel and purchase and receive additional vehicles. On December 22, 2011, the Respondents filed an additional update notice informing that the dispute regarding the budget source was still unresolved, and this is what they informed on January 16, 2012, as well.

 

29.On February 6, 2012, the Respondents filed an additional update notice that the budget dispute regarding financing the detention periods in the Region was resolved. The Respondents further updated that on December 2, 2012 (sic.), the Commander of the IDF Forces in the Region signed the Security Provisions Order (Amendment no. 16) (Judea and Samaria) (no. 1685) 5772-2012 (hereinafter: the "Amending Order"), which shortened the period of detention in the Region in accordance with the conclusions of the staff work that had been done, and prescribed that its provisions shall become effective gradually, such that the last changes shall become effective on August 1, 2012.

 

The Petitioners' Response

 

30.The Petitioners in HCJ 3368/10 welcomed the amendments made to the Amending Order. However they claimed that a review of the language of the Amending Order reveals that there are significant differences between the changes declared in the Respondents' response and the actual language of the Amending Order. For example, the Petitioners noted that a security offenses detainee can be held under detention for two periods of 96 hours, i.e. eight days, and only be brought before a judge upon the completion thereof, and the same is true in the case of a non-security offenses detainee. The Petitioners claimed that the shortening of the detention period that was applied is insignificant and does not cure the severe infringement of the detainees' rights under the security legislation in the Region. They claimed that in the case of security offenses, which are the majority of the offenses that are addressed in the Region, the Amending Order does not, in effect, shorten the period of detention before initial judicial review. The Petitioners added that the Amending Order shortens the period of detention until the end of proceedings in security offenses in an insignificant manner from two years to a year and a half, which can be extended indefinitely, and that no change was made with respect to minors and that there is no distinction between a minor and an adult with respect to the detention laws. According to the Petitioners, these changes shall hardly have any practical impact on the procedures of detaining the Region's residents and will not lead to a significant tightening of the judicial supervision of the periods of detention and to an improvement with respect to the infringement of the right to liberty, the right to due process and the presumption of innocence. The Petitioners mentioned with respect to the initial detention period, that judicial review is an integral part of the arrest process and that this is the stage where it is necessary to present the court with only reasonable suspicion which is meant to exist upon the actual arrest. Therefore, in their opinion, there is no justification for delaying the judicial review for such a long period.  Interrogation difficulties should be presented before the judge to justify the extension of the detention, including in security offenses.

 

31.The Petitioners further claimed that the European Court of Human Rights ruled that an initial detention period of four days without judicial review breaches the right to be free of arbitrary detention. Therefore they are of the opinion that a period of detention of four to eight days before judicial review constitutes an arbitrary infringement of the right to liberty in violation of the Basic Law: Human Dignity and Liberty, and is illegal. According to them, a period of detention of a year and a half infringes the defendant's presumption of innocence and constitutes an arbitrary infringement of his right to liberty, since it is based only on prima facie evidence and amounts to an infringement of his right to a fair trial, as it constitutes a negative incentive to conduct trials and examine the charge.

 

32.The Petitioners in HCJ 4057/12 also responded to the Respondents' update notice. They also welcomed the Respondents' notice regarding the amendments made to the Amending Order but claimed that they cannot cure the flaw of illegality embedded therein, since even after the amendment, the Palestinian residents of the Region will continue to be subject to exaggerated and discriminating periods of detention which severely infringe their rights. The Petitioners emphasized again that immediate and frequent judicial review of arrest for interrogation purposes is a necessary condition for the reasonableness, proportionality and legality of the detention and that in the absence thereof, it is not possible to prevent arbitrary detention, it is not possible to protect the rights of the suspect and it is not possible to ensure a fair criminal procedure. The Petitioners reiterated their argument that an arrest that is not arbitrary is meant, to begin with, to be based on a reasonable suspicion and that the judicial review constitutes a part of the formulation of the legality thereof. According to them, the special difficulties that characterize the interrogations in the Territories are not at all relevant to examining the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge. According to the Petitioners, the Respondents did not provide grounds which could justify the discriminating policy also with respect to the other periods of detention. The Petitioners stated that the Respondents did not refer to minors in their notice and according to them, the list of security offenses is still "all inclusive", and a situation in which an Israeli detainee who lives in the Region and is suspected of a security offense must be brought before a judge within 24 hours while a Palestinian must be brought before a judge only after an a-priori period of four days, cannot be justified.

 

In light of President D. Beinisch's retirement, President A. Grunis appointed me to hear the Petition on March 14, 2012.

 

Additional Hearing of the Petition

 

33.On April 23, 2012, we held an additional hearing of the Petition, in which the Petitioners presented their claims regarding four matters: the time until bringing a detainee before a judge, the detention of minors, the definition of security offenses pursuant to the Order, and the period of the extension of a detention until the end of proceedings. At the beginning of the hearing, the attorney for the Respondents filed the Amending Order with respect to Section 31 of the Order. According to the amendment, a detention prior to being brought before a judge in special circumstances was limited to a period which shall not exceed 96 hours from the time the suspect was arrested, and can, in special circumstances, specified in the Order, be repeatedly extended by two additional days at a time, in accordance with approval by very senior echelons.

 

34.With regard to minors, it was discovered in the hearing that a new Security Provisions Order was meant to come into effect in August, 2012, and the age of minors in the Region was also recently changed to 18 years of age (instead of the previous 16 years). The Respondents requested to monitor the change for one year from the time it became effective, to monitor the wardens' training procedures, and to consider the state of affairs following the lapse of such period. As such, we ruled that the Respondents shall file update notices with respect to the results of the change by no later than December 1, 2012.

 

35.As for the matter of the offenses defined as security offenses, we ruled in a decision at the end of the hearing that the matter was not raised in the Petitions and an order nisi was not requested with respect thereto, other than in the framework of the responses to the Respondents' update notices. Having said that, we found it appropriate that the Respondents consider our remarks, especially the question whether it is appropriate to relate to the security offenses as one assemblage rather than excluding some of them from the definition of security offenses that appear in the Third Addendum of the Security Provisions Order.

 

36.With respect to the detention until the end of proceedings, the Respondents' attorney notified that it was decided to shorten the period of detention to 18 months in security offenses. Since we were of the opinion that this is still a lengthy period and it is appropriate that the matter be re-examined, we instructed that this be addressed in the framework of the update notice that was to be filed. We also ruled that after filing the update notice, the Petitioners would be able to respond thereto, and that we would thereafter decide regarding the further treatment of the Petitions.

 

Additional Update Notice

37.On December 16, 2012, the Respondents filed an additional update notice. First of all, the Respondents informed that the review of the results of the shortening of the periods of detention in the Region indicated that by dedicating effort the Respondents have managed to implement the shortened periods of detention as prescribed in the Amending Order. The Respondents added that following the remarks of this Court in the hearing and the decision it issued at the end of the hearing, the Commander of the IDF Forces in the Region amended the Security Provisions Order regarding the detention of minors, the definition of the security offenses and the period of extension of detention until the end of proceedings:

 

38.With respect to the detention of minors, the Respondents updated that it was decided to act to amend the security legislation and to prescribe special periods of detention until being brought before a judge and until the end of proceedings, for minors in the Region, which as a rule, shall be shorter than the corresponding periods of detention for adults. In this context, the Respondents informed that on November 28, 2012, the Commander of the IDF Forces in the Region signed two new amendments to the Security Provisions Order: Security Provisions Order (Amendment no. 25) (Judea and Samaria) (no. 1711), 5772-2012 (hereinafter: "Order no. 1711"). The Respondents noted that according to Order no. 1711, as from April 2, 2013, the maximum period of detention of a "youth", as defined in the Security Provisions Order, i.e. a person who is at least 12 years but not yet 14 years old, until being brought before a judge shall be 24 hours from the time of arrest, with a possibility of an additional 24 hours extension due to an urgent act of interrogation. It was decided that this period shall apply to the detention of a "youth" for both security offenses and offenses which are not security offenses. Additionally, the Respondents noted that beginning from such time, the maximum period of detention of a "young adult", as defined in the Security Provisions Order, i.e. a person who is at least 14 years old but not yet 16 years old, until being brought before a judge shall be 48 hours from the time of the arrest, with a possibility of an additional 48 hours extension due to an urgent act of interrogation. It was decided that this maximum period of detention shall apply to the detention of a "young adult" for both security offenses and offenses that are not security offenses. The Respondents further noted that such maximum period of detention applies also to minors over the age of 16 and to adults in the Region who are detained for offenses that are not security offenses.

 

39.According to the Respondents this is a very significant shortening of the maximum period of detention until being brought before a judge for all suspects aged 12-14 and for suspects of security offenses aged 14-16, compared to the periods of detention until being brought before a judge for adult suspects for the said offenses, which were also significantly shortened in the framework of the Amending Order. The Respondents added that the maximum periods of detention until being brought before a judge which apply to adults shall continue to apply with respect to minors over the age of 14 for offenses which are not security offenses, and with respect to minors over the age of 16 for security offenses, as stated in the Amending Order.

 

40.With respect to the period of detention until the end of proceedings for minors in the Region, the Respondents further stated that Order no. 1711 prescribes that the period of detention until the end of proceedings for a minor, i.e. any defendant who is less than 18 years old, shall be only one year. Additionally, the detention of minors until the end of proceedings can be extended by a Military Court of Appeals judge, upon the lapse of a year of detention, for a period which shall not exceed three months, which the judge may re-order. It was noted that such provision applies with respect to minors who are accused of security offenses and offenses which are not security offenses.

 

41.As for the definition of security offenses, the Respondents updated that in the framework of the Security Provisions Order (Amendment no. 26) (Judea and Samaria) (no. 1712), 5772-2012 (hereinafter: "Order no. 1712"), approximately a third of the security offenses that were previously listed were removed from the Third Addendum of the Security Provisions Order which defines "Security Offenses", and one offense (offense under Section 222 of the Security Provisions Order) was added, and therefore, Order no. 1712 actually resulted in the significant shortening of the maximum periods of detention of those who are suspected and accused of the many offenses that were removed from the Third Addendum. The Respondents noted that there was a significant change even in the matter of adults since approximately a third of the offenses that were previously defined as "security offenses" are no longer defined as such, and therefore the period of detention until the end of proceedings for anyone suspected of committing them shall be 12 months rather than 18 months. The Respondents claim that the implementation of such significant changes in the various periods of detention necessitates granting an opportunity, prior to considering additional changes, to examine the implications thereof on the law enforcement system in the Region and on its ability to function. Therefore, it was decided that at this time it is inappropriate to change the periods of detention until the end of proceedings for adults in the Region. The Respondents were of the opinion that in doing so, a worthy balance was struck between all of the relevant considerations, while granting obvious preference to the rights of minor defendants over those of the adults.

 

The Petitioners' Responses

 

42.The Petitioners in HCJ 4057/10 responded to the Update Notice. They welcomed the significant shortening of the period of detention applying to minors aged 12-14 and the additional amendments of which the Respondents informed. However, in their opinion, the Petition has not yet been exhausted since even after the amendments, the periods of detention applicable to Palestinians in the Territories, minors and adults alike, remain exaggerated, discriminating and contrary to the law. According to them, to this day, the Respondents have still not raised any legitimate reason which could justify the continued severe discrimination in this matter between Palestinians and Israelis in the Region. According to the Petitioners, even after the amendments to the Order, it is possible to hold a suspect up to eight days without any judicial review, if he is suspected of an offense which is classified as a security offense, including offenses such as throwing rocks (including towards property) and organizing a protest without a license. Such an extended period of detention also applies to minors who are 16 years old or older. In offenses that are not security offenses, the bringing of a suspect before a judge can be delayed up to 96 hours, even when at hand is a minor who is 14 or 15 years old. The Petitioners mentioned that an arrest is meant to be based, to begin with, on a reasonable suspicion, and that the judicial review constitutes part of the formulation of the legality of the initial detention regardless of the severity of the offense. According to them, the difficulties that characterize the interrogations in the Territories are not relevant to the examination of the legality of the arrest to begin with, and therefore should have no implication on the amount of time until first bringing a detainee before a judge.

 

43.As for minors, the Petitioners claimed that even after the amendment of the Order it will still be possible to hold a minor aged 12 or 13 for an entire day until bringing him before a judge, or for two days if there is a need to perform an urgent act of interrogation, and a minor 14-15 years old can even be held under detention up to 96 hours for ordinary offenses, prior to being brought before a judge. This, as opposed to an Israeli 12 or 13 year old minor from the Region who must be brought before a judge within 12 hours or 24 hours in certain cases. The Petitioners added that even after the amendment, the prohibition against holding Israeli minors who live in the Region under detention until the end of proceedings, is not applied to minors under the age of 14. Additionally, a longer period of detention until the end of proceedings shall continue to apply to minors, a year as opposed to six months, and this period can be extended for longer periods of time, three months, compared to 45 days at a time under Israeli law. The Petitioners complained that the extension of a detention of a Palestinian suspect under the age of 14 or until his release without indictment, was not shortened.

 

44.The Petitioners added that despite the removal of approximately a third of the security offenses from the Third Addendum of the Order, it still includes a wide variety of offenses that do not justify lengthy periods of detention, such as, for example, the throwing of objects, including throwing rocks towards property, organizing protest without a license and the breach of a closed military zone order. According to them, leaving these offenses in the list was meant to serve considerations that are totally irrelevant to the interrogation needs, such as deterrence considerations. At the very least, leaving them in the list does not comply with the proportionality criterion. According to the Petitioners, there is no justification to hold Palestinian detainees who are suspected of security offenses up to 96 hours without judicial review, when according to the Amending Order judicial review can be delayed for up to six or eight days at terms that are much more lenient than those that are required for the detention of Israelis living in the Region and who are suspected of severe security offense. In their opinion, there is also no justification to set a longer period of time for the period of detention until the end of proceedings in security offenses. Determining a period of detention until the end of proceedings that is too long will result, in the Petitioners' opinion, in disproportionate infringement of the defendant's right to liberty and prejudices the fairness of the criminal process, particularly when the extended period is automatically pre-determined and does not require special approval. In their opinion, the expectation of lengthy detention could result in defendants admitting to that which is attributed to them only to avoid an extended stay in jail. According to them, the lack of stringent limits on the length of a trial allows a delay of justice which could even interfere with the discovery of the truth. The Petitioners stated that the matter of the definition of the security offenses did not appear in the Petition because the special periods of detention for security offenses were first prescribed by the Respondents in their response to the Petition. Therefore, the legality and the proportionality of the duration of the periods of detention for security offenses as well as for other offenses, constitute, so they argue, an integral part of the reliefs that were requested in the Petition to begin with.

 

45.The Petitioners reiterated their objections regarding the period of detention until the end of proceedings that applies to adults in security offenses, which was not shortened in the Amending Order, as well as with respect to holding a suspect up to eight days until being brought before a judge if detained in a "combat arrest", as stated in Section 33 of the Security Provisions Order. The Petitioners emphasized their claim that the proper criterion to examine the reasonableness and proportionality of the periods of detention that apply to the Palestinian residents of the Territories is the timeframe that applies to Israelis also living in the Region.

 

46.The Petitioners in HCJ 3368/10 notified that they join that which was stated in the response of the Petitioners in HCJ 4057/10. According to them, the differences between the legislation in the Region and the legislation in Israel will remain unfathomable even after the changes that were made to the Order, which in and of themselves are welcome.

 

An Additional Hearing of the Petition

 

47.In a hearing we held on May 23, 2013, the parties reiterated their main arguments: The Petitioners claimed that the amendments made in the Amending Order are not sufficient and that they maintain their petitions. The attorney representing the State requested to separate the matter of the detention of minors from the Petitions being addressed and requested to enable the system to examine the implementation of the amendments to the Order over a reasonable period of time in order to ensure that "things work" and adopt educated decisions. The attorney representing the State stated that upon the lapse of the period, the periods of detention will be re-examined, as the system does not rest on its laurels.

 

48.On October 29, 2013, the Respondents filed an additional update notice. The Respondents informed that on September 30, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 35) (Judea and Samaria) (no. 1727) (hereinafter: "Order no. 1727"), which came into effect on the date of the signing thereof. According to Order no. 1727, the provisions of Article G, Chapter E of the Security Provisions Order, including, the age of minors in the Region, shall from now on be "permanent provisions". The Respondents also updated that since the last hearing of the Petitions, and further to additional staff work, on September 1, 2013, the Commander of the IDF Forces in the Region signed Security Provisions Order (Amendment no. 34) (Judea and Samaria) (no. 1726), 5773-2013 (hereinafter: "Order no. 1726"), which came into effect on October 6, 2013. Order no. 1726 introduced an additional significant shortening of the periods of judicial detention of minors for interrogation purposes, resulting in a Military Court judge being able to order the arrest of a minor for interrogation purposes for a period of 15 days and extend the detention for additional periods which shall not exceed 10 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 40 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 40 days, for additional periods which shall not exceed 90 days each.

 

49.Additionally, Order no. 1726 prescribed periods of judicial detention for interrogation purposes for adults that are similar to those applicable in Israel, such that a Military Court judge may order the arrest of an adult suspect for interrogation purposes for a period of 20 days and extend the period for additional periods which shall not exceed 15 days each, provided that the total periods of consecutive detention with respect to the same event shall not exceed 75 days. A Military Court of Appeals judge may, at the request of the Military Advocate General, extend the detention beyond the first 75 days, for additional periods which shall not exceed 90 days each.

 

50.According to the Respondents, it is evident that following the coming into force of Order no. 1726, the maximum judicial detention periods of adults for interrogation purposes in the Region are now identical to the periods of detention for interrogation purposes of adults in Israel, mutatis mutandis, except for two matters: one, the maximum period of the first judicial detention order (20 days in the Region compared to 15 in Israel), and two, the requirement to receive the approval of the Attorney General for the request to extend the detention for interrogation purposes beyond 30 days in Israel, compared to the approval of the Military Advocate General, which is only required beyond 75 days in the Region. Considering the previous update notices and this present one, the Respondents are of the opinion that the Petitions have exhausted themselves and should be dismissed.

 

51.On December 30, 2013, the Petitioners in HCJ 4057/10 filed a response to the update notice. According to them, the notice reflects the flawed approach which is guiding the Respondents, who on the one hand prescribed discriminating and exaggerated periods of detention for Palestinians and on the other hand, ostensibly adopted the principle of equality. The Petitioners welcome the Respondents' decision to distinguish between minors and adults with respect to the periods of judicial detention for interrogation purposes and to somewhat shorten the periods applicable to Palestinian minors, however object to the arbitrary determination of longer periods of detention for Palestinian minors as opposed to the periods of detention prescribed for Israeli minors living in the Region and compare them. The Petitioners add that the differences between to the periods of judicial detention for adults are not solely "technical", since while as a rule an Israeli adult suspect in the Region cannot be detained for more than 30 days with respect to the same event, a Palestinian adult suspect can be detained for 75 days and his detention can even be extended without adopting the basic rule pursuant to which upon the lapse of 75 days, "he shall be released from detention, with or without bail". According to the Petitioners, the Respondents have not yet, to this day, provided any legal reasons for the discriminating periods of detention which are imposed upon the Palestinians.

 

Discussion and Ruling

 

52.A person's right to liberty is a constitutional right that is grounded in Section 5 of the Basic Law: Human Dignity and Liberty, where it is prescribed that: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, detention, or any other way." The importance and centrality of the right to liberty in a democratic regime also stems from the implications of denying the liberty for the injured person and for the damage that could be caused thereto as a result thereof. The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty (see HCJ 2605/05 The Law and Business Academic Center v. The Minister of Finance, paragraph 25 of President D. Beinisch's decision (November 19, 2009)). The right to due process prior to a person's liberty being denied derives from the right to liberty, and it is even warranted that he will be given the opportunity to respond and voice his arguments prior to this fundamental right being denied (LCrimA 837/12 The State of Israel v. Gusakov, paragraph 29 (November 20, 2012)). On the other hand, it is in the public interest to expose criminals and prevent crime, and certainly to try and thwart security offenses. Therefore, it is necessary to strike a balance in the constant tension that exists in the Israeli reality, between security and protecting the rights of someone suspected of committing an offense. This tension emerges also in the matter before us – the periods of detention of Palestinians who are residents of the Region.

 

53.As mentioned, the purpose of the laws of detention, including in the Region, is to strike a balance between the public interest of exposing and preventing crime and protecting the rights of the suspect. One must remember that the Region has unique characteristics which derive from the security reality and the essence of the military rule applicable there, from the security needs and from the difficulties of enforcing the law, in light of the absence of Israeli control in part of the area. There is no dispute that constant judicial review of the process of arrest for interrogation purposes is important for the protection of human rights, however the continuity of the interrogation is important for the purpose of realizing the objective of the interrogation: exposing the truth. Exposing the truth quickly and efficiently is especially important when the security of the State and its citizens are at stake.

 

54.The dilemma, therefore, is clear: on the one hand, the conduct of a proper legal procedure is an essential element to secure the proportionality and constitutionality of an arrest for interrogation purposes, and in principle, the appearance of the suspect before a judge should not be regarded as an obstacle, but rather as a fundamental condition for an effective and constitutional arrest for interrogation purposes (CHR 8823/07 Anonymous v. The State of Israel, paragraph 32 (February 11, 2010)). This follows from the customary fundamental approach that judicial involvement is an integral part of the arrest process. It is not "external" judicial review of the arrest, but rather an integral part of the formulation of the arrest itself. This is a constitutional approach that views the judicial involvement in the arrest procedure an essential part of the protection of individual liberties:

 

"The judicial involvement is the barricade against arbitrariness: it is warranted from the principle of the rule of law (see Brogan v. United Kingdom (1988) 11 EHRR 117, 134). It guarantees that the delicate balance between individual liberties and the security of the general public – a balance that lies at the basis of the laws of arrest – shall be preserved (see ADA10/94 Anonymous v. The Minister of Defense, IsrSC 53(1) 97, 105)." (HCJ 3239/02 Marav v. Commander of IDF Forces in Judea and Samaria, IsrSC 54(2) 349, 368 (2003))."

 

The meaning of this is that it is necessary to adjust the interrogation methods to the need to interrupt them at a certain stage of the interrogation in order to allow an effective and fair judicial procedure to take place. An interrogation that takes place over a period of time, when the person being interrogated is in detention and cannot appear before the court and voice what he has to say, could result in disproportionate infringement of human dignity and liberty.

 

On the other hand, we cannot ignore the fact that the security legislation which is the subject of our discussion was created in light of a complex security situation in a territory that is occupied under belligerent occupation (occupatio bellica), that the special security conditions applicable there dictate the determination of arrangements that are different than those that are customary in the occupying state. This reality has, inter alia, resulted in the detention of Palestinian suspects prior to being brought before a judge, for periods of time that are longer than those of Israeli suspects. In this context, it is important to remember, for example, as the Respondents have clarified, that due to the security situation, the ability to move in the Region is limited and that part of the area is under Palestinian control. The security conditions could, therefore, prevent, or delay, the interrogation parties from reaching the arena, and could make the collection of testimony and evidence more difficult. Additionally, according to the Respondents, potential witnesses do not cooperate with the interrogation parties, either due to their sympathy towards the suspects or due to their hostility towards the State of Israel. According to the Respondents this also creates genuine difficulty in interrogations and greatly delays the ability to formulate initial evidence against the suspect. Furthermore, intelligence material that was received has to be used carefully and often it is necessary to wait before using it so as not to give away the source of the information or god forbid risk his life. Additionally, there is an enhanced concern in the Region of fleeing into areas that are under the Palestinian Authority's control, such that it will not be possible re-arrest such person who was released from detention. In such conditions, the interrogation of the detainees is complicated and complex and at times a longer period of time is necessary to exhaust the interrogation before bringing the detainee before a judge.

 

55.As mentioned, the Petitioners claim that the balance between the need to maintain the security of the general public and the State and the need to protect human rights, dignity and liberty, which is reflected in the Security Provisions Order is not the proper balance even after the amendment thereof, while the Respondents request to examine the implementation of that which is stated in the Amending Order before being able to reach any conclusions on the matter. This is the state of affairs in the case at hand. In any case, it appears that the parties to the Petition share the opinion that judicial review is an essential tool for protecting the legality and propriety of the arrest and share the aspiration to shorten the periods of detention of the Palestinian residents of the Region as much as possible and to apply statutory arrangements thereon which are as similar as possible to those that are customary in Israel, in terms of the degree of protection they provide to the suspect's or defendant's rights. This was also the spirit of what was expressed in this Court, when the matter was presented before it in the past. The Supreme Court expressed its opinion and ruled that:

 

"It is time to apply statutory arrangements in the Military Courts which are similar to those prescribed in the Arrests Law in Israel, in order to protect the rights of defendants; all subject to the unique characteristics of the Region. This is the case with respect to dictating periods of a detention from the time of filing an indictment and until the commencement of the trial (Section 60 of the Arrests Law which does not have a corresponding statutory arrangement in the Region); with respect to limiting the period of the detention between the end of interrogation and the filing of an indictment (Section 17(d) of the Arrests Law, a matter which also does not have a corresponding statutory arrangement in the Region); and with respect to shortening the periods of detention prescribed in the security legislation that applies in the Region, as they are significantly longer than those prescribed in the Arrests Law in Israel" (HCJ 10720/06 Farid v. The Military Court of Appeals (February 11, 2007).

 

56.Indeed, a consequence of this aspiration is the changes that were made to the arrangements of arrests of Palestinian detainees who are residents of the Region. During the course of the Petition, the Respondents took far reaching measures with respect to shortening the said periods of detention, so as to make them more similar to the periods of detention customary in Israel. For the sake of good order and in order to clarify the matter, I shall present the changes that were made to the Security Provisions Order since the Petitions were filed, in the following table:

 

 

 

 

Previous Law

New Law (the Amending Order)

Initial detention until being brought before a judge for offenses that are not security offenses

Eight days

Minors:

12-14 year olds: 24 hours

14-18 year olds: 48 hours

Adults:

48 hours + an option to extend up to 96 hours

Initial  detention until being brought before a judge for security offenses

Eight days

Minors:

12-14 year olds: 24 hours

14-16 year olds: 48 hours

16-18 year olds: 96 hours

Adults:

96 hours + an option to extend up to 8 days

Judicial  detention for interrogation purposes prior to filing an indictment

30 days

  • Can be extended for additional periods which shall not exceed 30 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 90 days.
  • Can be extended beyond the 90 days for three additional months.

Minors: 15 days

  • Can be extended for additional periods of up to 10 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 40 days.
  • Can be extended beyond the 40 days for additional periods which shall not exceed 90 days each.

 

Adults: 20 days

  • Can be extended for periods of up to 15 days each time, provided that the total consecutive periods with respect to the same event shall not exceed 75 days.
  • Can be extended beyond the 75 days for additional periods which shall not exceed 90 days each.

"Bridge Detention" for the purpose of filing an indictment

Unlimited

Eight days

Detention after filing indictment and before the commencement of the trial

Unlimited

60 days

Detention until the end of proceedings in offenses that are not security offenses

Two years

  • Extensions of up to six months each.

Minors: A year

  • Extensions of up to three months each.

Adults: A year

  • Extensions of up to six months each.

Detention until the end of proceedings in security offenses

Two years

  • Extensions of up to six months each.

Minors: A year

  • Extensions of up to three months each.

Adults: 18 months

  • Extensions of up to six months each.
 

 

 

 

57.The difference between the new law (the Amending Order) and the law existing in Israel can be seen in the table below:

 

 

Initial detention until being brought before a judge

Detention before indictment

Detention until end of proceedings

"Bridge  Detention " for purpose of filing an indictment

In the Region – Offenses that are not security offenses

48-96 hours

20-75 days

A year + extensions of up to six months each.

Eight days

In Israel - Offenses that are not security offenses

24-48 hours

15-30 days

Nine months + extensions of up to three months each.

Five days

In the Region – Security offenses

96 hours – 8 days

20-75 days

18 months + extensions of up to six months each.

Eight days

In Israel – Security offenses

24-96 hours

20-35 days

Nine months + extensions of up to three months each.

Five days

Minors in the Region –

12-14 years old

24-48 hours

15-40 days

Security offenses:

20-75 days

A year

Eight days

Minors in the Region –

14-16 years old

48-96 hours

Offenses that are not security offenses:

15-40 days

Security offenses:

20-75 days

A year

Eight days

Minors in the Region –

16-18

Like adults: 48-96-8 days

Offenses that are not security offenses:

15-40 days

Security offenses:

20-75 days

A year

Eight days

Minors in Israel –

12-14

12-24 hours

20-40 days

Will not be arrested until the end of proceedings

Five days

Minors in Israel – 14-18

24-48 hours

20-40 days

Six months + extensions of up to 45 days each.

Five days
 

 

58.The tables I have presented above illustrate the significant changes the Respondents made in the matter at hand. For example, the current maximum period of detention until being brought before a judge for offenses that are not security offenses is 48 hours from the time of the arrest, with an option of extension as per the decision of an administrative authority for additional periods which shall not exceed 48 additional hours due to urgent acts of interrogations. In security offenses the maximum period of detention until being brought before a judge is 96 hours from the time of arrest, with an option of extending the detention by 48 additional hours by an administrative party in unusual circumstances, in which the head of the Interrogation Department at the Israel Security Agency was convinced that the interrogation could be substantially prejudiced. In most special circumstances, it is possible to extend the detention by an additional 48 hours (beyond the said six days), when the head of the Interrogation Division at the Israel Security Agency is convinced that interrupting the interrogation could result in harming the performance of an essential interrogation that is meant to save human lives. The Respondents repeatedly emphasized in their arguments that the new arrangement requires preparations and is scheduled to be reexamined again upon the lapse of two years from the time the Order becomes effective, based on the experience that shall accumulate during such period.

 

59.A significant change also occurred with respect to the matter of minors. We shall remind that before the Petitions were filed, there was no distinction at all between minors and adults in all of the periods of detention in the Region. Today, the age of minority in the Region increased from 16 to 18, and special arrangements were prescribed for minors based on a division into a number of age groups. Order no. 1711 provides that the maximum period of detention until bringing a "youth", i.e. a person who is at least 12 years old by not yet 14 year old, before a judge, both for security offenses and for offenses that are not security offenses, shall be 24 hours from the arrest, with a possibility of extending by an additional 24 hours due to urgent acts of interrogation; and that the maximum period of detention until bringing a "young adult", i.e. a person who is at least 14 years old but not yet 16 years old, before a judge, both for security offenses and offenses which are not security offenses, shall be 48 hours from the time of the arrest, with a possibility of extending by an additional 48 hours due to urgent acts of interrogation.

 

60.As for the definition of security offenses, the distinction between security offenses and offenses that are not security offenses for the purpose of the periods of detention in the Region was made by the Respondents only after the Petitions before us were filed. Therefore, the Petitioners' objections regarding this matter were not raised in their Petitions, but rather only in the framework of responses to the Respondents' update notices. The dispute regarding which offenses shall be defined as security offenses, is directly and closely linked to the reliefs that were requested in the Petitions, and in fact is a consequence of these reliefs. Indeed, we found it appropriate that the Respondents consider our remarks in the hearing that was held in the Petitions, inter alia, regarding the question whether it is proper to relate to the security offenses as one assemblage rather than excluding some of them from the Order's definitions. Consequently, the Respondents removed a third of the security offenses listed in the list in the Addendum of the Security Provisions Order and this is to be welcomed. If and to the extent the Petitioners still have objections regarding the offenses listed in the Addendum, they are entitled to voice their objections separately and it is inappropriate to further discuss this matter in the framework of the Petitions before us, which already encompass many matters.

 

61.Now, therefore, the staff work that was performed jointly with the Ministry of Justice and the Prime Minister Office produced a welcome change in the periods of detention listed in the Security Provisions Order. The change is meant to reduce, as must as possible, the infringement of the rights of the Palestinian detainees. There is no doubt that the State came a long way and significantly and even dramatically shortened the periods of detention applicable to the Palestinian residents of the Region. It is worthy to note the many discussions and long meetings that the State held with the IDF and the Ministry of Justice, together with other government ministries, until reaching the results which are expressed in the Amending Order (and in this respect, the Petitioners' achievements are invaluable. Their efforts to shorten the periods of detention of the Palestinian residents of the Region, bore significant fruit and are commendable).

 

62.So, considering the differences that stem from the different conditions between Israel and the Region, and in light of the dramatic changes that were just recently made, the "on site" implementation of which must be examined over a period of time – we are of the opinion that the current detention periods which were prescribed for adults, who are suspected of committing security offenses, in the time period before the filing of an indictment – are reasonable and proportionate, and therefore there is no cause for our involvement in this context at the current time. We shall mention that the Respondents requested to examine how the system adjusts to the changes that were made in the Security Provisions Order over a reasonable period of approximately two years, and it is presumed that upon the lapse of the period and in accordance with the on-site reality, the option of further shortening the mentioned periods of detention shall be reconsidered. We therefore assume that the Respondents' policy shall be re-examined from time to time in accordance with the security situation assessments and that if and to the extent it shall be possible to formulate reliefs these shall be applied in the future by the Respondents accordingly, and the periods of detention prescribed in the Amending Order shall be further shortened. Obviously, the Petitioners have the option of voicing their objections regarding the mentioned periods of detention, also upon the lapse of the "adjustment period".

 

63.Having said that, and without making light of the efforts the Respondents exerted and the important changes they made following the filing of the Petitions, we are not comfortable with three central matters (which partly overlap): Firstly, the periods of time in which Palestinian minors who are residents of the Region can be detained. Indeed significant changes were also made with respect to the population of minors, as specified above, however, in light of the special caution and sensitivity that must be applied towards people who are not yet adults, we are of the opinion that it is necessary to continue to monitor what is being done in their matter. The second matter that is not yet exhausted in the current Petitions is the periods of detention that was prescribed for Palestinians who are suspected or accused of offenses that are not defined as security offenses. The reasons presented in the Respondents' response, in its various stages, did not convince us of the need for such long periods of detention for "ordinary" criminal offenses. This is true also with respect to the third matter of detention until the end of proceedings of both minors and adults, in security offenses and offenses that are not security offenses (including detention after filing an indictment and prior to the commencement of the trial, which is currently 60 days). The circumstances and constraints which the Respondents indicated, by virtue of which more extended periods of detention are required in the Region, relate primarily to the stage of interrogation and collection of evidence and not to the stage of conducting the trial, after the indictment has been filed. In light of these difficulties, we considered issuing an order nisi with respect to the three mentioned matters, however at this stage we decided to leave the Petitions pending and to instruct the Respondents to reconsider how to advance these matters and give notice to such effect in the form of an update notice which is to be filed by September 15, 2014.

 

In summary, in all that relates to the maximum periods of detention for adults suspected of committing security offenses, at the stage before an indictment is filed; and in the scope of the offenses defined as security offenses – the Petitions are denied without an order for expenses (subject to that stated in paragraphs 60 and 62). However, in all that relates to the periods of detention of minors, the periods of detention of adults in offenses that are not security offenses; and the period of detention until the end of proceedings (of minors and adults, in all classifications of offenses) – the Respondents shall, as mentioned, file an update notice by September 15, 2014.

 

Given today, 6th of Nissan, 5774 (April 6, 2014).

 

 

Justice                                     Justice                                                 Justice

Full opinion: 
PDF icon Ministry of Palestinian Prisoners v. Minister of Defense.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/10/680/033/b25/10033680.b25.pdf

Schwartz v. State of Israel

Case/docket number: 
CrimA 111A/99
Date Decided: 
Wednesday, June 7, 2000
Decision Type: 
Appellate
Topics: 
Administrative Law
Discretion
Constitutional Law
Prisoners’ Rights
Courts
Criminal Law
Conviction
Enforcement
Abstract: 

Facts: The applicant was convicted in the District Court in Tel-Aviv-Jaffa of two offenses: the commission of rape under section 345(A)(1) of the Penal Law 5737-1977 and the commission of sodomy, an offense under section 347(A) of the Penal Law.  The applicant was sentenced to four years in prison, of which three years were of actual imprisonment and one year was on probation.  In addition the court ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down, at the request of the applicant’s counsel, the District Court stayed the date of commencement of the applicant’s sentence by one month.  The application was brought before Justice Zamir who determined that execution of the prison sentence imposed would be stayed until a further decision was made on the application.  Justice Zamir transferred the application to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before an extended panel of Justices, and the President of the Court ordered consideration of the application before an extended panel of nine justices.

 

Held: The Court held that it would be appropriate to delineate standards for applications to stay execution of prison sentences of persons who have been convicted and sentenced to a prison term and whose appeal is pending.  The Court detailed those standards and considerations and held that while in the specific circumstances of the present case those standards dictate that the execution of the prison sentence should likely not have been stayed, nonetheless, due to the fact that the applicant has been free on bail for a long period of time since the sentence was handed down, and in consideration of the date that had been set for hearing the appeal, the Court did not in fact order the immediate imprisonment of the applicant. 

 

The Court also considered, in a preliminary discussion, the application of the Public Defender’s Office to participate in the proceeding as a “friend of the court.”  The Court held that the joining of the Public Defender as a “friend of the court” was to be allowed in this case.

 

Justice Kedmi agreed with the final outcome of the judgment but added qualifying comments.  In addition, Justice Kedmi disagreed with the holding that allowed the Public Defender to be joined as a “friend of the court.”

 

 

Voting Justices: 
Beinisch, Dorit
Primary Author
majority opinion
Barak, Aharon
majority opinion
Dorner, Dalia
majority opinion
Mazza, Eliahu
majority opinion
Cheshin, Mishael
majority opinion
Levin, Shlomo
majority opinion
Or, Theodor
majority opinion
Strasberg-Cohen, Tova
majority opinion
Kedmi, Yaakov
Author
concurrence
Full text of the opinion: 

 

CrimA 111A/99

Arnold Schwartz

v.

State of Israel

 

The Supreme Court Sitting as the Court of Criminal Appeal

[June 7th, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, T. Strasberg-Cohen, D. Dorner, D. Beinisch

 

Application to the Supreme Court sitting as the Court of Criminal Appeals for the stay of the execution of a sentence.

 

Facts: The applicant was convicted in the District Court in Tel-Aviv-Jaffa of two offenses: the commission of rape under section 345(A)(1) of the Penal Law 5737-1977 and the commission of sodomy, an offense under section 347(A) of the Penal Law.  The applicant was sentenced to four years in prison, of which three years were of actual imprisonment and one year was on probation.  In addition the court ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down, at the request of the applicant’s counsel, the District Court stayed the date of commencement of the applicant’s sentence by one month.  The application was brought before Justice Zamir who determined that execution of the prison sentence imposed would be stayed until a further decision was made on the application.  Justice Zamir transferred the application to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before an extended panel of Justices, and the President of the Court ordered consideration of the application before an extended panel of nine justices.

 

Held: The Court held that it would be appropriate to delineate standards for applications to stay execution of prison sentences of persons who have been convicted and sentenced to a prison term and whose appeal is pending.  The Court detailed those standards and considerations and held that while in the specific circumstances of the present case those standards dictate that the execution of the prison sentence should likely not have been stayed, nonetheless, due to the fact that the applicant has been free on bail for a long period of time since the sentence was handed down, and in consideration of the date that had been set for hearing the appeal, the Court did not in fact order the immediate imprisonment of the applicant. 

The Court also considered, in a preliminary discussion, the application of the Public Defender’s Office to participate in the proceeding as a “friend of the court.”  The Court held that the joining of the Public Defender as a “friend of the court” was to be allowed in this case.

Justice Kedmi agreed with the final outcome of the judgment but added qualifying comments.  In addition, Justice Kedmi disagreed with the holding that allowed the Public Defender to be joined as a “friend of the court.”

 

 

Legislation cited:

Penal Law 5737-1977, ss. 43, 44, 87, 87(a), 87(c), 345(a)(1), 347(a), ch. 6, sections B, H.

Basic Law: Human Dignity and Liberty, ss. 5, 10.

Basic Law: the Judiciary, s. 17.

Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996, ss. 21(a)(1)(c), 44.

Bail Ordinance 1944. 

Criminal Procedure Law 5725-1965.

 

Draft legislation cited:

Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522.

               

Israeli Supreme Court cases cited:

[1]     RA 7929/96 Kozali and Others v. State of Israel (not yet reported).

[2]     CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel IsrSC 37(1) 477

[3]     FH 16/85 Harrari v. State of Israel, IsrSC 40(3) 449.

[4]     CrimA 757/85 State of Israel v. Harnoi IsrSC 39(4) 292.

[5]     CrimA 1100/91 State of Israel v. Jeffrey IsrSC 47(1)418.

[6]     MAppCrim 2161/92 Fadida v. State of Israel (unreported).

[7]     MApp 123/76 Ikviah v. State of Israel IsrSC 30(3) 223.

[8]     MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel IsrSC 9 673.

[9]     MApp 2/52 Locksner v. Israel Attorney General IsrSC 1(1) 169.

[10] Mot 118/79 Richtman v. State of Israel IsrSC 33(2) 45.

[11] Mot 156/79 Kobo v. State of Israel IsrSC 33(2) 63.

[12] Mot 132/81 Pitusi v. State of Israel IsrSC 35(2) 817.

[13] MApp 430/82  Michalshwilli v. State of Israel IsrSC 36(3) 106.

[14] MApp 10/62 Cohen v.  Attorney General IsrSC 17 534.

[15] MApp 183/80 Sharabi v. State of Israel IsrSC 34(4) 517.

[16] Mot 52/50 Maatari v. Attorney General of Israel IsrSC 4 414.

[17] MAppCrim 166/87 State of Israel v. Azran and Others, IsrSC 41(2).

[18] MAppCrim 2599/94 Danino v. the State of Israel (unreported).

[19] CrimA 8549/99 Ben Harosh v. State of Israel (unreported).

[20] CrimA 3695/99 Abu Keif v. State of Israel (unreported).

[21] CrimA 4263/98 Luabna v. State of Israel (unreported).

[22] CrimA 3594/98 Ploni (John Doe) v. State of Israel (unreported).

[23] CrimA 1050/98 Siamo v. State of Israel (unreported).

[24] MAppCrim 6877/93 Ploni (John Doe) v. State of Israel (unreported).

[25] MApp 28/88 Sussan v. State of Israel (unreported).

[26] MAppCr 4331/96 ElMakais v. State of Israel IsrSC 50(3) 635.

[27] MAppCr 5719/93 Forman v. State of Israel (unreported).

[28] MAppCr 6689/94 Attias and others v. State of Israel (unreported).

[29] MAppCr 8574/96 Mercado v. State of Israel (unreported).

[30] MAppCr 8621/96 Kuzinski v. State of Israel (unreported).

[31] MAppCr 4590/98 Sharabi v. State of Israel (unreported).

  1. CrimA 7068/98 Hachami v. State of Israel (unreported).

[33] CrimA 9/55 Yegulnitzer v. State of Israel IsrSC 9 891.

[34] CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel IsrSC 30(1) 57, at p. 75).

[35] MAppCr 3360/91 Abu Ras and others v. State of Israel (unreported).

[36] CrimA 7282/98 Uda v. State of Israel (unreported).

[37] HCJ 6055/95 Sagi Zemach and others v. Minister of Defense and Others (not yet reported).

[38] HCJ 87/85 Argov and others v. Commander of the IDF Forces for Judea and Samaria, IsrSC 42(1) 353.

[39] HCJ 1520/94 Shalem v. Labour Court and others, IsrSC 58(3) 227.

[40] MAppCr 2708/95 Spiegel and others v. State of Israel IsrSC 59(3) 221.

[41] LCA 5587/97 Israel Attorney General v. Ploni (John Doe) IsrSC 51(4) 830.

[42] MApp 15/86 State of Israel v. Tzur, IsrSC 40(1) 706.

[43] MAppCr 537/95 Genimat v. State of Israel IsrSC 49(3) 335.

[44] HCJ 1715/97 the Office of Investment Managers in Israel and others v. Ministry of Finance and others, IsrSC 51(4) 367.

[45] MAppCr 3590/95 Katrieli v. State of Israel (unreported).

[46] MAppCr 37171/91 State of Israel v. Golden IsrSC 45(4)807.

[47] MAppCr 4092/94 Tioto v. State of Israel (unreported).

[48] CrimA 6579/98 Friedan v. State of Israel (unreported).

[49] CrimA 3602/99 Ploni (John Doe) v. State of Israel (unreported).

[50] CrimA 3976/99 Ephraimov v. State of Israel (unreported).

 

American cases cited:

[51] U.S. v. Miller 753 F.2d 19 (1985).

[52] McKane v. Durston 153 U.S. 684 (1894).

[53] Jones v. Barnes 463 U.S. 745 (1983).

 

Canadian cases cited:

  1. R v. Demyen (1975) 26 C.C.C, 2d 324, 326.
  2. R v. Pabani (1991) 10 C.R., 4th. 381.
  3. Mcauley v. R (1997) Ont. C.A. Lexis 3.
  4. Baltovich v. R (1992) Ont. C.A. Lexis 257.
  5. R v. Parson (1994) 30 C.R. 4th 169.
  6. R. v. Farinacci (1993) 86 C.C.C. 32.
  7. Cunningham v. Canada (1993) 80 C.C.C 492.
  8. Miller v. The Queen (1985) 23 C.C.C 99.
  9. R v. Branco (1993) 87 C.C.C 71.

 

Israeli books cited:

  1. S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999)

 

Israeli articles cited:

  1. S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ Hapraklit 52 (1986) 451.
  2. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ The Annual Book for Law in Israel (Tel-Aviv, 1986) 481.

 

Foreign books cited:

  1. R. Pattenden English Criminal Appeals 1844-1994 (Oxford, 1996).
  2. Stuart Charter Justice In Canadian Criminal Law (Scarborough, 2nd ed., 1996).
  3. W.R. LaFave, J.H. Israel Criminal Procedure (St. Paul, 2nd ed., 1992).
  4. P.W. Hogg Constitutional Law of Canada (Scarborough, 4th ed., 1997).

 

Foreign articles cited:

  1. M. Damaska “Structures of Authority and Comparative Criminal Procedure” 84 Yale L.J. (1974-1975) 480.
  2. D.L. Leibowitz “Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984” 54 Fordham L. Rev. (1985-1986) 1081.
  3. M.M. Arkin “Rethinking The Constitutional Right To a Criminal Appeal” 39 UCLA L. Rev. (1991-1992) 503.
  4. A.S. Ellerson “The Right To Appeal And Appellate Procedural Reform” 91 Colum. L. Rev. (1991) 373.
  5. D. Gibson “The Crumbling Pyramid: Constitutional Appeal Rights in Canada” 38 U.N.B. L.J (1989) 1.
  6. T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the 1984 Bail Reform Act” 62 Notre Dame L. Rev. (1986) 192.

 

Other:

  1. 8A Am. Jur. 2d (Rochester and San Francisco, 1997).

 

 

 

For the Applicant—D. Ronen

For the State —N. Ben-Or, A. Shaham

For the Public Defender-K. Mann, D. Pinto, D. Ohana, R. Yitzhaki

 

JUDGMENT

Justice D. Beinisch

By what standards will an application to stay execution of a prison sentence of a person who has been convicted and whose appeal is pending be considered?  That is the issue brought before us in this application.

The facts in the background of the fundamental discussion before us are as follows:

1.  The applicant was convicted in the District Court in Tel-Aviv-Jaffa of the offense of rape under section 345(A)(1) of the Penal Law 5737-1977 (hereinafter: “the Penal Law”) and for committing sodomy, an offense under section 347(A) of the Penal Law.  Following his conviction, the applicant was sentenced to four years in prison, including three years of actual imprisonment and one year on probation.  The court also ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down the District Court granted the application of the applicant’s counsel and stayed the date of commencement of the sentence by one month.

2.  The applicant appealed the decision to this court.  At the time of the filing of the appeal, his counsel submitted the application before us to stay execution of the sentence imposed on him (hereinafter: “application for stay of execution”).  On 1.21.99 Justice Zamir determined, after hearing the parties’ arguments, that execution of the prison sentence imposed on the applicant would be stayed until a further decision was made on the application.  Justice Zamir noted in his decision that in accordance with the accepted policy of this court as to applications for stay of execution “it is doubtful that it is appropriate, in this case, to stay the commencement of the prison term.”

However, the judge decided that it would be appropriate for the application before him to be transferred to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before a panel.  Justice Zamir explained his decision as follows:

“Lately thought has been given to the accepted policy of this court regarding applications for stay of the execution of imprisonment until the disposition of the appeal.  Various approaches have been expressed by judges in the case law. (See, for example, HCJ 3501/98 Dekel v. State of Israel; CrimA 7068/98 Hachami v. State of Israel).  The doubt as to the accepted policy of the court in this matter has drawn in part from the Basic Law: Human Dignity and Liberty; and in part from the customary practice in certain countries.

It appears to me that it is not appropriate to go on with the present situation, in which each justice considering applications for stay of execution makes a decision according to his world view, and the time has come for this court develop a policy that will be able to guide every judge considering such applications.”

In light of this decision, the President of the Court ordered consideration of the application before an extended panel of nine justices.

3. Before turning to the examination of the substance of the issue which has arisen before us, we must give thought to the preliminary issue that has come up during the course of the consideration of the case, which is the issue of the status of the Public Defender in the framework of the proceedings in this court.   After the application was brought for consideration before an expanded panel, the Public Defender submitted an application before the court entitled “application to submit a written brief as a friend of the court.”  The applicant’s counsel consented to the application and the State opposed it.  On 5.19.99, after hearing the parties’ arguments on the matter, we determined that we would grant the application in such a manner that the Public Defender would be allowed to submit a brief.  We further determined that “the decision whether to affirm the argument itself as well as the decision as to the status of the Public Defender in this case – would be considered by the panel in the judgment.”

The issue of recognition of the institution of “friend of the court” in our legal system in general, and the status of the Public Defender as “friend of the court” in particular, was considered in the judgment of President Barak in RA 7929/96 Kozali and others v. the State of Israel [1].  In his decision on this matter the President distinguished between the question of the authority of the court to order the joinder of a person or entity to a proceeding before it with the status of “friend of the court,” and the question of the discretion the court is to exercise when making the decision on an application to join such a party or person.  In accordance with that decision, the authority to join exists, in principle, and the court must examine in each and every individual case – according to its circumstances – whether it is to be exercised, in consideration of the totality of considerations relevant to the matter.  Such consideration relates primarily to the degree of potential contribution which is entailed in the requested joinder against the concern that such joinder would do damage to the efficiency of the discussion, to the parties and to their rights:

“One must stand guard in this matter and ensure that indeed there is in the joinder of another party to the proceeding a contribution to be made to the discussion itself and the public interest.  One is to examine in each and every case, whether such joinder does not cause damage to the efficiency of the deliberation, to the parties to the dispute and to their basic rights…  Indeed before a party or a person is given the right to express his position in a proceeding to which he is not an original party, the potential contribution of the proposed position is to be examined.  The essence of the applying entity is to be examined.  Its expertise, experience and the representation it affords the interest in whose name it seeks to join the proceeding.  The type of proceeding and its procedure is to be examined.  The parties to the proceeding itself are to be ascertained as well as the stage at which the joinder application was submitted.  One is to be aware of the essence of the issue to be decided.  All these are not comprehensive criteria.  There is not enough in them to determine in advance when it will be appropriate by law to join a party to the proceeding as a “friend of the court,” and when not.  At the same time these criteria must be weighed, inter alia, before such joinder is to be decided upon.” (Ibid. paragraph 45)

The issue that arises before us is a question of general importance in the realm of criminal procedure: it arises and is discussed as a matter of course before courts, and by its nature it is relevant to a broad public of accused persons.  Our discussion of the matter does not primarily focus on the concrete facts of the case, but the fundamental question which arises, inter alia, against the background of lack of uniformity in the law in practice.  In discussion of this type, the Public Defender, whose function by law is the representation of accused persons in criminal proceedings, has a clear interest.  In consideration of the expertise and the experience of the Public Defender in the representation of accused persons, their joinder to the proceedings before us may contribute to the deepening of the discussion and its clarification.  On the other hand, joinder of the Public Defender, at the phase in which the joinder application was submitted, will not burden the administration of the proceedings significantly, as it is merely an interlocutory proceeding in the framework of a pending appeals case.  Taking these considerations into account, we felt that the joinder of the Public Defender to the proceedings before us as “friend of the court” was to be allowed.

Claims of the Parties

4.  In detailed and thorough arguments, the parties laid out before us a broad picture, and supported each of their respective arguments with multiple references.  The sum of the argument of the applicant, joined by the Public Defender, is that the accepted approach in our case law as to the stay of execution of a prison term of a convicted person whose appeal is pending (which we will discuss later at length), is not appropriate and requires renewed examination and change.  According to the applicant’s claim, the law has no provision as to the immediate execution of the prison sentence, but rather the legislature left determination of the commencement of the execution of the prison term to the discretion of the court.  This argument relies on s. 44 of the Penal Law, which establishes that a court that imposes a prison term “may order that the sentence commence from the date it shall determine.”  As to the discretion given to the court to determine the date of commencement of the prison term, counsel for the applicant argues that the court is to adopt a “broadening” policy as relates to applications that deal with stay of execution during the pendency of the convicted person’s appeal on the judgment, in a manner that except for exceptional circumstances – which fall within the grounds for detention pending completion of the proceedings – the execution of the prison sentence will be delayed until the disposition of the appeal.  The applicant’s counsel rests his argument primarily on the status of the right of appeal, whether as a constitutional basic right or whether as a right of recognized central importance in our legal system, and on the presumption that immediate execution of a prison sentence, may, as a rule, harm effective realization of the right of appeal.

The Public Defender claims that the law practiced in Israel today in the matter of stay of execution of prison sentences during the pendency of an appeal is not clear cut; alongside judicial approaches which emphasize the immediate execution of the sentence as a board rule, and the stay of its execution as only an exception, there are to be found in the case law of this court – particularly in recent years – other approaches as well, which tend to broaden the range of cases in which the execution of the prison sentence will be stayed while the convicted person’s appeal is pending.  Thus, argues the Public Defender, even when the judicial rhetoric is seemingly strict in relation to the possibility of stay of an appeal, the application of the rules, in fact, tends to be lenient with applicants for stay of execution of prison sentences during the pendency of the appeal.  It is the argument of the Public Defender, in light of the murkiness as to the law that applies in the matter of stay of execution of prison terms during the pendency of the appeal, that it is appropriate to re-examine the issue.  In the framework of this examination, the Public Defender claims, central weight is to be given to concerns of irreversible harm to human liberty if after the imprisonment of the convicted person it turns out after the fact – once the appeal is heard –that the imprisonment was partially or entirely unjustified.  Thus, the Public Defender claims that the right of appeal as part of due process, is derived from the right to dignity and liberty and as such is a protected constitutional right in the provisions of the Basic Law: Human Dignity and Liberty.  According to the approach of the Public Defender in the framework of the proper balancing between the basic rights of the convicted person and the public interest in immediate enforcement of the judgment, the court, as a rule is to grant applications to stay execution of prison terms until the disposition of the appeal, with the exception of exceptional cases in which there is a reasonable risk of flight of the convicted person from the law, or that the convicted person poses a risk to public safety, or that particularly severe damage to public confidence in the enforcement system is expected.

The State seeks to rebut the arguments of the appellant and the Public Defender.  The starting point of the argument the State brought before us is that it is the directive of the legislature that a prison term is to be executed immediately upon sentencing.  The State learns this from the provision of section 43 of the Penal Law, according to which one who is sentenced to prison will have his prison term calculated from the date of sentencing, unless the court orders otherwise.  Alongside the rule of immediate execution, the legislature granted the court discretion to stay the execution of the sentence to another date, as per section 87(a) of the Penal Law.  The State argues that  the law followed by this court in the matter of stays of execution is stable and clear, and properly balances the various interests involved in the matter, and it is not proper to deviate from it.  According to the State’s approach, the Basic Law: Human Dignity and Liberty has no impact on the matter before us; it is a matter of existing legislation, which is not subject to constitutional review but merely interpretive influence.  Even as to this last issue, there is nothing in the Basic Law  which changes the accepted law followed by this court, according to which execution of the prison sentence will be stayed only in exceptional circumstances; the sum of the argument is that after the conviction of a person criminally, and his sentencing to prison, he no longer benefits from the presumption of innocence and he no longer enjoys the right to freedom from imprisonment.  His liberty has been denied by the judgment of an authorized court which sentenced him, and the question of stay of execution of a prison sentence no longer involves violation of personal liberty which is protected by the Basic Law.  To base this claim the State refers us to the approach of the American and Canadian Law in this matter.  Alternatively, the State claims, that even if the convicted person has the right to liberty which may be violated pursuant to consideration of the stay of the execution of his sentence, then the law that has come forth from this court, as to stay of execution of a prison sentence during the pendency of the appeal, fulfills the constitutional balancing required by the Basic Law.

The   Normative Framework

5. The practice of the law in the matter of the stay of execution of a prison sentence during the pendency of the appeal has developed in the case law of this court from its earliest days.  Tracing the developments in the case law reveals that from the beginning the law developed against the background of what was customary in British common law and this was applied in our system even before the relevant statutes in this matter were legislated, some of them directly, others indirectly.  Eventually, the case law based the law in practice on the construction of the legislated provisions.  Thus it was established that the rule is that a prison term is to be executed immediately and execution of a prison term is not stayed except “in extraordinary circumstances” or if there exist special circumstances which justify the stay.  This rule is anchored in the basic principle of our system, according to which the law is determined at the trial level, in which oral evidence is heard, and in which the facts are determined based on impressions of witnesses.  The level of proof required in a criminal proceeding is high – proof beyond a reasonable doubt – and with the conclusion of the proceeding, once it has been determined that guilt has been proven beyond a reasonable doubt, the convicted person is denied the presumption of innocence.  So too, in our system – unlike the continental system which views the consideration at the trial level and the appeals level as one unit – the appeal is not part of the criminal proceeding; the appeal is an additional proceeding, limited in its scope from the first proceeding since as a rule evidence is not heard during it, and it is a review proceeding.  As background, it must be remembered, that in common law countries, from where we have drawn the fundamentals of our system, determining guilt based on the facts is left to a jury which makes the determination in the trial court.  It appears that this legal structure, according to which one must separate the trial level from the appeals level, has influenced the development of the rule according to which upon the conclusion of the proceeding at the trial level expression is to be given to the punitive result dictated by the conviction.

Relevant Statutory Provisions

6. A number of statutory provisions relate to the matter before us.  Since we are dealing with the execution of a sentence that was imposed on a person after their criminal conviction, we will turn first to Chapter 6 of the Penal Law entitled “Modes of Punishment.”  In Title B of Chapter 6 above,  entitled – “Imprisonment,” there are two provisions relevant to our discussion – section 43 and section 44.  We will bring these provisions verbatim:

 

“Calculation of the Prison Term

43.

One who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise: if the convicted person was free on bail after the sentence, the days he was free will not be counted as part of the period of the sentence.

Postponed Imprisonment

44.

If the court imposes a prison sentence, it may order that the sentence commence from the date it shall determine.”

 

An additional provision which applies in our matter is found in section 8 of chapter 6 above, in section 87 of the statute:

 

“Postponement of Dates.

87

(a)  If a date is established for the execution of a sentence, in one of the sections of this chapter or by the court according to it, the court is permitted to stay the execution to another date.

 

 

(b)  If the execution of the sentence was stayed according to subsection (a), the court may stay it an additional time for special reasons which will be recorded.

 

 

(c)  The court staying the execution of a sentence according to this section may condition the stay on bail or other conditions as it sees fit; the provisions of sections 38 to 40 and 44 of the Criminal Procedure Law, 5725-1967 will apply to bail according to this section with the necessary changes.

 

 

(d)  The court’s decision in accordance with this section is subject to appeal.”

As detailed above, each of the parties before us relied in their arguments on a different one of the three said provisions and regarded it as the relevant legislated framework for determining the date of execution of the prison term.  The state’s construction of section 43 of the Penal Law, according to which, as a rule, and lacking any other determination by the court, the commencement of the prison term begins with the sentencing, is consistent with the construction of said section in the case law.  Thus for example, Justice Shamgar has said regarding the construction of section 43 to the Penal Law, during discussion of a matter different than the one before us (in that matter the elements of the offense of escape from lawful custody were under consideration):

“The origin of the status of  “in custody” is a result of the integration of two significances attached to the sentence that is read to the convicted person: one, and this is the legal one, stems from the provisions of section 43 of the Penal Law, according to which: ‘one who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise…’ 

Meaning, the prison sentence begins to run from the date of the sentence, unless the court has ordered otherwise. . .    According to the simple words and the clear intent of the legislature, the broad rule is that, the prison term begins with the notice of the decision of the judicial authority.”

(CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel [2], at pp. 492-493.  Emphasis added – D.B.).

 

Similar things were stated by Justice Shamgar in FH 16/85 Harrari v. State of Israel [3] during consideration of the question of when the period of probation begins to be counted when extended by the court.

“The guiding rule which arises from the penal law is that, the commencement and the application of the sentence are from the date of the sentence, and that is, if the court has not ordered otherwise.  This is the provision of section 43 of the Penal Law that one who is sentenced to prison, his prison term will be calculated from the date of the sentence, unless the court has ordered otherwise.  The court may order a postponed sentence (section 44 or section 87 of the law above).”

(Ibid. at p. 454 emphasis added – D.B.)

7.  From the above, therefore, one may glean that, as a rule, the date of execution of a prison sentence imposed by the court is immediately upon the imposition of the sentence, unless the court has ordered otherwise.   

Alongside this rule, the legislature determined that the court may stay the date of   commencement of the prison sentence until a date other then the date of the imposition of the sentence.  To this end, all three statutory provisions that were quoted above are relevant.  The discretion given to the court to stay the date of execution of the sentence is learned from the language of section 43 itself (“unless the court has otherwise ordered”).   A separate determination as to this matter is found in section 44 of the Penal Law which is entitled “postponed imprisonment.”  It appears that according to the accepted  construction  of section 43 of the law, there is a certain overlap between the ending of section 43 and section 44.  (And indeed this was the approach of Justice Shamgar in CrimA 757/85 State of Israel v. Harnoi [4]:

“To a certain extent section 44 is no more than a more explicit statement of what was already implied from the determination in section 43. . .” )  As to section 87 of the Penal Law, its application is different from that of sections 43 and 44 at least in two primary areas.  First, section 87 deals with stay of the date of execution of a ‘sentence,’ not necessarily a prison sentence.  Second, section 87 enables the court to order the stay of execution of a sentence it handed down, even at a date after the date of sentencing.  (For the background to the legislation of this section see: CrimA 1100/91 State of Israel v. Jeffrey [5]).

To the statutory provisions mentioned above one must add an additional statutory provision which is also relevant to the matter of stay of execution of a prison term during the pendency of the appeal, and that is the directive established in section 44 of the Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996 (Hereinafter: “the Arrests Law”).  Section 44 above establishes the following:

“Release on Bail by the Court

44

(a)  A suspect who has not yet had an indictment filed against him, an accused or convicted person whose appeal is pending on his judgment and is under arrest or in prison, the court may, upon his application, order his release on bail or without bail.

 

 

(b)  The court may order the accused or convicted  person, whose appeal is pending on his judgment, to post bail, even if it is not authorized to order his detention according to section 21 in order to ensure his appearance in court, and when it has done so, the accused or convicted person will be seen as one who was freed on bail.”

 

On the basis of the language of the section, it does not deal directly with the question of the date of commencement of the prison sentence.  But in fact it is directed at the same practical outcome that is likely to stem from stay of execution of the prison sentence according to sections 43, 44 and 87 of the Penal Law, which is that the convicted person remains free for the duration of  the period of the appeal subject to the conditions that were determined for his release (compare this with section 87 (C) of the Penal Law).  Therefore it has been decided, that the considerations that the court will weigh in an application for release of a convicted person on bail during the pendency of his appeal, will be identical to the considerations taken into account in an application to stay execution of a prison sentence until the disposition of the appeal (see MAppCrim 2161/92 Fadida v. State of Israel [6], stated by Justice Bach; and compare: MApp 123/76 Ikviah v. State of Israel [7].

With the exception of section 44 of the Arrests Law, there is nothing in the abovementioned sections of the law, in their language, which relates to the situation of stay of execution of a prison term specifically during the period of appeal, rather they are phrased in a broad manner without details as to  the grounds for the stay.  As a result of the multitude of sections in the law which relate to the matter, applications to stay the execution of prison terms for the pendency of the appeal are considered  by the appeals court in the framework of a number of procedural “tracks” whether as an application to stay execution according to section  87 of the Penal Law and its sections or whether as an application to be released on bail.  As stated above, the considerations that will be weighed by the Court in each of the above cases will generally be identical, although the issue of the relationship between the various “tracks” is not entirely clear.  It is interesting to note that in foreign legal systems, which we will discuss later, the issue which is the subject of our discussion is dealt with in sections of the law which deal with the release on bail during the pendency of the appeal of a person who was convicted and sentenced to prison, and in foreign literature and case law it is generally discussed under the title of “release on bail pending appeal.”  It is also to be noted that most of the initial decisions of the Supreme Court in which the accepted rules for stay of execution of the prison sentence were formulated were decided in applications to be freed on bail during the pendency of the appeal in accordance with the Bail Ordinance 1944 (which was cancelled in 1965 with legislation of the Criminal Procedure Law).  What is important for our purposes is that in not a single one of the law’s provisions which enable the court to stay or postpone the date of commencement of the prison sentence, did the legislature detail the considerations which will guide the court in its decision, including where an appeal on the conviction filed by the convicted person is at the foundation of the request to stay execution.  These considerations have been determined by the courts working within the framework of the authority given to them by the legislature, and we will turn to this now.

The Court Rulings in this Matter

8.  The construction that was given in the case law of this court  to legal provisions which give the court authority, with discretion, to stay the execution of the prison sentence or to release the convicted person on bail, during the pendency of appeal, was narrow.  The rule that was established was that a person who was convicted of a criminal offense, and who was sentenced to prison, would begin by serving his sentence immediately after the imposition of the sentence.  The rule that was established was that the cases in which execution of the prison term would be stayed  due to the filing of an appeal, would be “extraordinary” cases where “special circumstances” exist which justified it.  Among the many references for this approach (hereinafter for convenience we will call it – “the accepted approach”) we can bring the words of the Justice S.Z. Heshin in MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel [8].

“When the court comes to discuss the question whether it is appropriate to release on bail a person that has already been convicted but his appeal has not yet been heard, it is not entitled to ignore the determining fact that there is already a judgment against the applicant which sentenced him to prison, and only in extraordinary cases will the court or the judge hearing the application grant the request.”

(Ibid.).

(see also MApp 2/52 Locksner v. Israel Attorney General  [9]; Mot 118/79 Richtman v. State of Israel [10] at p. 47, 169; Mot 156/79 Kobo v. State of Israel [11] at p. 64; Mot 132/81 Pitusi v. State of Israel [12] at p. 819; 430/82 MApp Michalshwilli v. State of Israel [13] at  p. 107; This approach is similar to the English law in this matter see R. Pattenden, English Criminal Appeals 1844-1994 (Oxford, 1996) [66]112).

The primary reason mentioned in the case law for not staying the execution of a prison sentence during the pendency of the appeal is that with the conviction of the convicted person with the offense with which he is accused, the presumption of innocence from which he benefited until that time dissipates.  In the words of Justice Agranat:

“. . . the rule is, that prior to the conviction the person is presumed to be innocent, whereas after the conviction, the necessary presumption must be -- until it has been decided otherwise on appeal -- that he is guilty of the offenses of which he was convicted, and therefore a person will not be freed on bail at this stage, except under extraordinary circumstances.”

(MApp 10/62 Cohen v.  Attorney General [14] at p. 535).

In other decisions emphasis was placed on the existence of an authorized judicial decision which denies the convicted person's freedom, and which is valid and presumed to be legitimate as long as it has not been changed by the appeals court:

"It appears to me that in principle the determining element in this distinction (between the arrest of a person who has been convicted but not yet sentenced, and the stay of execution of a prison sentence that was imposed-- D. B.) is not  a suspect's innocence or conviction, but rather the phase at which he was convicted and sentenced, meaning the existence of a judicial decision as to denial of his liberty for the period of time detailed in the sentence.  The conviction in and of itself -- without a sentence of imprisonment -- does not constitute a "red line" between the two situations, and does not constitute but one consideration, although a weighty and serious one, in the totality of regular and accepted considerations in the consideration of the arrest of a person who has not yet been convicted."  (MApp 183/80 Sharabi v. State of Israel [15] at p. 519 emphases added -- D.  B.).

The case law mentions an additional reason for immediate execution of the sentence, except in extraordinary cases, and that is the threat of injury to public safety if the convicted person is freed during the period of appeal.  Justice Zemora discusses this in the first case in which the matter came up before this Court:

“The rule is: as to a person who was convicted and punished lawfully, public safety is to be preferred over the possibility that perhaps the convicted person will be acquitted in the appeal and it will turn out that an innocent person sat in prison.”  (Mot 52/50 Maatari v. Attorney General of Israel [16], at p. 416).

Alongside the concern for public safety the case law has recognized an additional public interest which is at the basis of the rule of immediate execution of a prison sentence, and that is the interest that is grounded  in effective enforcement of the criminal law and deterrence of potential offenders. (See MAppCrim 166/87 State of Israel v. Azran and Others [17]).

9.  As stated above, alongside the rule -- immediate execution of a prison sentence -- the case law has recognized exceptions which exist under those "special" or "extraordinary" circumstances in which it would be justified to stay the execution of the prison term despite the considerations that were detailed in previous case law.  These circumstances, in summary, are: when the conviction is for an offense that is not serious or where the circumstances of its commission are not serious; when the period of arrest which was imposed on the convicted person is short, relative to the time frame in which the appeal is expected to be heard, and there is a concern that until the determination of the appeal the convicted person will serve his entire punishment or a significant part of it; when there is a blatant possibility that the appellant will be successful in his appeal because of a manifest distortion on the face of the decision.  Justice Zamir summarized the accepted approach as to the stay of execution of a prison term as follows:

“the rule as to stay of the execution of a prison sentence was formulated some time ago, it was summarized clearly in Mot 156/79  Kobo v. State of Israel [11] and we still follow it.  The main points of the law, very briefly, are as follows:

A) The determining rule is that a person who has been sentenced to prison must begin serving his sentence immediately.  One does not stay execution of the prison sentence except "under extraordinary circumstances" or if there are "special circumstances" which justify a stay.

B) The special circumstances that are sufficient to justify a stay of execution are generally these: an offense that is not serious; a short prison term; a chance the appeal will be granted.  As to the chance that the appeal will be granted, it is necessary that in the convicting decision there is a clear distortion, or that there is a  pronounced  likelihood of success in the appeal.  To this end,  it is not necessary to examine in a detailed and concise manner the facts and reasoning on which the judgment is based.  It is necessary that the issue is apparent on the face of the decision.

Generally, the fact that the applicant was free on bail until his sentence was imposed, the fact that he does not constitute a serious risk to public safety, and that his family situation or business situation are difficult, are not sufficient to justify a stay of execution (MAppCrim 2599/94  Danino v. the State of Israel [18]).

This in fact has been the accepted law for many years, and justices in this Court follow it today as well (see for example, from among the many decisions, the following decisions: CrimA 8549/99 Ben Harosh v. State of Israel [19]; CrimA 3695/99 Abu Keif v. State of Israel [20]; CrimA 4263/98 Luabna v. State of Israel[21]; CrimA 3594/98 Ploni (John Doe) v. State of Israel [22]; CrimA 1050/98 Siamo v. State of Israel [23]; MAppCrim 6877/93 Ploni (John Doe) v. State of Israel [24]).

10.  Alongside the accepted approach as to stay of execution of a prison term during the pendency of appeal, another approach has developed over the years, which tends to be more flexible with the conditions for stay of execution until the disposition of the appeal of the convicted person.  The development of the broader approach has brought with it various grounds to justify the stay of the execution of the prison term and the freeing of the convicted person on bail until the conclusion of the hearing of the appeal, and the breaking out of the narrow framework of postponement of execution as only an exception.  This approach has been expressed in the words of Justice Bach in MApp 28/88 Sussan v. the State of Israel [25]:

“Personally,  I believe that if the convicted person’s chances of  winning the appeal seem good on the surface, and if in taking into account all the rest of the circumstances, such as the convicted person's criminal history and the danger that he poses to the public, there is no special reason for his immediate imprisonment, then the court is entitled to favorably weigh his release on bail until the appeal. . .  I also cannot entirely ignore the fact that it is a matter of a person with an entirely clean history,  that there is no apparent danger to be expected from him if execution of the sentence is stayed.  On the other hand, there is a risk, that if he is immediately arrested, and if he later wins his appeal, a result which as I stated, does not appear unreasonable, then he will serve a significant portion of a sentence which will later turn out to have been imposed unjustifiably.  In my opinion there is also a difference regarding a decision such as this between a defendant who was free on bail for the entire time before the judgment was handed down by the trial court, and a defendant that was detained pending the completion of the proceedings and seeks  now, after he has been convicted, to be freed from prison until his appeal is heard."

See also the decision of Justice Bach in MAppCr 4331/96 ElMakais v. State of Israel [26]; the decision of Justice Bach in MAppCr 5719/93 Forman v. State of Israel [27]; see also the decision of Justice Tal in MAppCr 6689/94 Attias and others v. State of Israel [28] which mentions the decision in Sussan in agreement above).

A different approach to the stay of execution of a prison sentence during the pendency of appeal in comparison to the accepted approach, has been expressed in the decisions of Justice Strasberg-Cohen in MAppCr 8574/96 Mercado v. State of Israel [29]; MAppCr 8621/96 Kuzinski v. State of Israel [30]; and MAppCr 4590/98 Sharabi v. State of Israel [31].  In these decisions Justice Strasberg-Cohen  reiterated that the rule is that the convicted person must serve the prison sentence immediately when it is imposed.  However, the Justice emphasized the need, in each and every case, to balance, in accordance with the circumstances and characteristics, the considerations and various interests involved in the matter of the stay of execution, while avoiding establishing rigid and limited categories of cases in which the imprisonment will be stayed until disposition of the appeal.  This is how this approach was presented by Justice Strasberg-Cohen in her decision in the Mercado case above:

"Indeed, it has been an accepted rule for us from long ago that a defendant who has been convicted, must serve his sentence as soon as it is imposed.  The reasons for this rule are well and good, both in the individual realm and in the public realm.  A person who is convicted and a prison sentence was imposed upon him is no longer presumed to be innocent and the very fact of his filing of an appeal does not reverse things and does not does put in the hands of the appellant a given right to stay his sentence.  As long as it has not been established otherwise on appeal, the convicted person is considered guilty by law and he must pay the price for his actions.  However, a conviction does not constitute the end of the matter.  The law has put in the hands of a person lawfully convicted, the right of appeal, which if he takes advantage of, will put his conviction and the punishment that was imposed on him, under the scrutiny of a higher court and only after the appeal is heard will the court have its final say.  We are faced with a clash between various interests worthy of protection.  On the one hand, the convicted defendant must pay the price for the deeds for which he was convicted and serve his punishment without delay, and the legal system must take care that the sentence is implemented immediately.  On the other hand, society must take care that a person does not serve a punishment of imprisonment for nothing, and that his liberty is not taken away from him when at the completion of the proceeding, he may be acquitted.  In my opinion, it is preferable to stay the prison term of ten defendants whose appeal was denied, rather than have one defendant serve his prison term, that it later turns out he did not have to serve.  However, it is not sufficient to merely file an appeal to bring about the stay of execution of a prison sentence, for if you would say so, then every prison sentence should be stayed, and I do not believe that it is correct to do so.  In order to find the right balance, we have at our disposal tools that we can use to measure and weigh all the relevant considerations and conduct a proper balancing between them."

A more sweeping approach which calls for a change in the accepted rules in the matter of stay of execution of prison terms during the period of appeal, is to be found in the decision of Justice Ilan in CrimApp 7068/98 Hachami v. State of Israel [32].

“I believe that the time has come to review the rule that a person should serve their sentence, even in if they have filed an appeal.  The reason for this is, that after the defendant has been convicted and is no longer presumed to be innocent it is proper that he serve his sentence as close as possible to the commission of the offense and the more the date is postponed -- the less efficient the punishment.  Despite this, everyone agrees that in the case where a relatively short prison term has been imposed, the execution of the punishment is to be deferred until the disposition of the appeal, lest the appellant serve his entire sentence by the time the appeal is heard.  This is also the position of the prosecution.  In my humble opinion the concern here is not just that perhaps a person will serve their entire sentence and then be acquitted.  Even a person who has been sentenced to six years in prison and serves two years by the time he is acquitted on his appeal has suffered an injustice despite the fact that  four years that he will not serve remain.

. . .  

In my opinion, the rule must be that a person should not serve their sentence until the judgment is final, unless there is a serious concern that it is not possible to guarantee that he will appear to serve his sentence or that he poses a danger to the public."

(Emphasis added -- D.  B.)

In addition to the decisions mentioned, which express each in its own way a deviation from the accepted approach, it is possible to point to decisions of the court which do not explicitly deviate from the position above, but in fact broaden the circumstances in which execution of a prison term is stayed.  From various decisions of justices of this Court there appears to be a tendency at times to take into consideration the fact that the applicant was free on bail during the course of his trial, his clean history and other personal circumstances.  Moreover, many of the decisions that were handed down do not give weight to the appeal’s chances of success and do not apply the test of "the chances of success of the appeal are apparent on the face of the judgment."  These decisions to a certain degree changed the normative picture of the situation in this matter as it appears in fact.  The Public Defender tried to persuade us with its arguments and the data presented, that in fact the courts have abandoned the guiding rule as to the immediate execution of a prison sentence, even if they avoided declaring a new policy.  It is difficult to reach this conclusion from the data that the Public Defender presented before us; this data relates primarily to decisions on appeal in the district courts that deal with relatively short prison terms that were imposed in the trial courts, and do not necessarily lead to the conclusions which the Public Defender reached.  However, it can be said that in the judgments of this Court there exists in point of fact a process of greater flexibility in the accepted approach and a broadening of the range of cases in which prison terms are stayed until the conclusion of the hearing of an appeal filed by the convicted person.

Stay of Execution of a Sentence of Imprisonment During the Period of the Appeal-Discussion

11. The first question we must ask is, is there a justification for re-examining the rules that apply in the matter of stay of execution of a prison sentence during the pendency of the appeal?  It appears that a re-examination is justified as described in the decision of Justice Zamir in the matter before us; from the details of the decisions mentioned above it appears that indeed there have been breaks in the accepted approach in the matter of stay of execution of a prison sentence during the pendency of the appeal and a certain lack of clarity has developed in light of the various approaches apparent in the case law of this court.  Moreover, the law  in the case, that was first developed about 50 years ago, grew against the backdrop of British law and developed in a normative environment in which significant changes have occurred over the years.  Among other thing significant changes have occurred in the areas of criminal law and process, the Basic Law: Human Dignity and Freedom was passed and there has been development in the status of the right of appeal.  These changes in the substantive law have practical ramifications, which indirectly impact the matter before us.  Thus, for example, the change that occurred in the  law of arrests with the passing of the Arrests Law influenced not only the fundamental realm, but also increased the number of accused who are released on bail during their trial; a fact which has increased the number of accused who at the stage of decision on an application to stay execution are being denied their freedom for the first time.  This re-examination is necessitated therefore, in light of the changes that have occurred in our law over the years, which justify examining the validity of the law against the backdrop of the normative reality of our own time.  We will turn to this now.

12. As a starting point for our discussion we are guided by the statutes which apply to the matter of stay of execution of a prison sentence during the pendency of the appeal.  As has been said above, section 43 of the Penal Law,  as it has been constructed  in case law,  establishes that a prison sentence is to be executed immediately upon sentencing, unless the court has ordered otherwise.  Decisions of this court in which it has been determined that the rule is that imprisonment during the period of appeal is not to be stayed except in special and extraordinary circumstances, apparently is consistent with the general guideline that arises from the language of section 43 as to the immediate execution of imprisonment.  However, it must be emphasized that the case law that determined the law in this case, was not generally anchored in statutory language.  It can even be said that such law is not necessarily to be concluded  from the language of the statute.  From the version of the section and its legislative placement it can be concluded that it establishes a general guideline as to the date of the execution of the sentence and the manner of calculation of the prison term, and is not exclusive to the circumstances of filing an appeal on the judgment.  In other words, the section applies to the sentencing phase and by the nature of things does not distinguish in the matter of  the date of execution of the sentence between a situation where an appeal has been filed and other situations.    As to sections 44 and 87 of the Penal Law, they too do not explicitly relate to the question of stay of execution of the sentence during the pendency of appeal; section 44 was originally intended to give the court authority to establish in the sentence, a later date for execution of the prison term, while the aim of section 87 of the Penal Law is to grant the court the authority to stay yet again the date of execution of the prison sentence  (see Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522 at p. 246, an amendment that was legislated as a result of CrimA 9/55 Yegulnitzer v. State of Israel [33], in which it was established that the court does not have the authority to stay the execution of a prison sentence from the moment that a date has been set for the commencement of its execution).  It may, therefore, be said that section 43 and sections 44 and 87 of the Penal Law do not delineate a framework that  limits the courts to stay of the execution of the sentence during the pendency of the appeal exclusively to “special” or “extraordinary” cases.

As can be seen from the above, the provisions of the Penal Law do not relate explicitly to the stay of execution of a prison sentence upon the filing of an appeal on a conviction.  However, when we come to examine the effect of filing an appeal on the date of execution of the sentence, we must take into account the accepted essence of the appeal process in our legal system.  According to our system, as opposed to what is customary in other Western European countries, the appeal in its essence is a separate process of review of proceedings that took place in the lower court.  In the European system, it is the principle of “double instances” according to which the two proceedings are handled as one unit, and the party is entitled to have both instances consider his case both from the legal and factual perspectives, that is accepted.  Because the process is not based to begin with on hearing oral evidence, the appeals court is not limited in receiving additional evidence, and as a rule the lower court does not have an advantage over the appeals court.  Apparently, for this reason, filing an appeal normally stays the execution of the decision of the lower court until the conclusion of the appeal proceedings.  We have already stated that unlike the European system, according to our system, when the proceeding in the lower court is completed the accused’s matter is decided by an authorized court, after having heard evidence and after having examined it by the stricter standard that is required in a criminal proceeding, and with this the conviction phase is complete.  Accordingly, the fact of realization of the right of appeal to an appeals court – which is the court of judicial review  -- does not necessitate stay of execution of the sentence, but rather at that phase it is necessary to express the consequences necessitated by the conviction, including execution of the sentence.  (for the difference between the two systems see S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999) [63] at pp. 30-33, 185-186; and see  M. Damaska ‘Structures of Authority and Comparative Criminal Procedure’ [70]at 489-90).

Stay of the execution of the sentence is not therefore necessitated by the very filing of the appeal, and is a matter given over to the discretion of the court.  When the application is made at the sentencing hearing it is decided by the court imposing the punishment: when the stay is requested after the appeal is filed, the decision is in the hands of the appeals court.  The court which imposes a prison sentence and decides to stay the execution of the sentence takes into account circumstances related to the defendant and the offense and among other considerations may take into account the need to enable the defendant to file an appeal.  After filing an appeal on a decision in which a prison sentence was imposed, the appeals court has another consideration which can influence the range of considerations which relate to the date of execution of the prison sentence.  The decision as to the stay of the execution of the prison sentence during the pendency of the appeal will take into account, apart from the broad rule as to immediate execution of the prison sentence also special considerations which relate to the existence of a pending appeal on the decision.  Therefore, even if from the statutory clauses we learn a broad rule of immediate execution of the sentence, still the fact of filing an appeal can influence the manner of exercise of the discretion of the court as to the stay of execution of the sentence in accordance with the authority given to it by law, and it may change the balance between the various considerations entailed in the question of the date of commencement of execution of the prison sentence.

13. As a rule, exercising discretion as to deciding the question of stay of execution of a prison sentence entails a balance between considerations which relate on the one hand to the public interest, and on the other, to the interests of the individual involved.  Filing an appeal brings in further considerations which are also related to both public and private interests.  The proper balance of the totality of considerations related to the issue will determine in which cases the convicted person-appellant will begin to serve his sentence immediately, and in which cases execution of the sentence will be deferred until the disposition of the appeal.

There is no doubt that the broad rule regarding immediate execution of a prison term rests on the public interest of effective enforcement of the law.  This interest has several aspects: first, release of a person who has been convicted of a criminal offense may endanger public safety and security; this is particularly so when it is a matter of someone who was convicted of an offense that by its nature and the circumstances of its commission indicates a risk.  Second, release of a person sentenced to prison, may undermine execution of the sentence due to the flight of the convicted person from the law, and in certain circumstances of a pending appeal there may also be the fear of obstruction of justice.  It would appear that these aspects of the public’s interest in immediate enforcement are not in question.  They are learned a fortiori from the law of detention pending completion of the proceedings which enable denying the liberty of a person who enjoys the assumption of innocence where there is a reasonable basis for their existence.  When it is a matter of a person who has been convicted and sentenced, the weight of such considerations intensifies; it is a matter of a person who no longer enjoys the presumption of innocence, but is in the realm of a criminal who has been convicted and against whom a prison sentence has been imposed.  This fact can have an impact both on assessing the danger of a person, as we are no longer basing this on prima facie evidence but rather on a reliable  judicial determination that has been made on the basis of a foundation of the more stringent rules of evidence of criminal law, and on the fear of flight from the law, due to the concrete and real threat of imprisonment.

The public interest in immediate enforcement of imprisonment has an additional aspect, which relates to the need to enact effective action of the law enforcement mechanisms while maintaining public confidence in them.  The stay of the execution of a prison sentence may cause a large time delay between the date of the sentencing and the date the sentence is served, during which time a convicted person will be free to walk about.  This has the potential to damage the effectiveness of criminal punishment, as “the more time that passes between the commission of a crime or the discovery of a certain crime and the time the criminal is convicted, the lesser the deterring influence of the punishment imposed on others which may be offenders like him.” CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel [34] at p. 75).  When a person who has been convicted of a crime and sentenced to prison walks about freely just as before, the deterrence of potential offenders may be hindered.  Justice Winograd discussed this in MAppCr 166/87 State of Israel v. Azran and others [17]).

“An incident such as this has an echo, and the release of the respondents, after they have been convicted, has or may have, a damaging effect, on potential offenders, who will mistakenly believe, that even though John Doe was convicted of rape, he is walking around free as though nothing happened.” (Ibid. at p. 810). 

Justice Dov Levin has also discussed the deterrence consideration:

“The starting point is that there is a presumption that he who has been convicted by the court of first instance is no longer presumed to be innocent and must be held accountable for his actions.  An unnecessary delay which is not necessitated by special reasons damages the deterrence aspect of the punishment.”  MAppCr 3360/91 Abu Ras and others v. State of Israel [35] (emphasis added D.B.)

 

See also the words of Justice Türkel in CrimA 7282/98 Uda v. State of Israel [36]:

“It is a matter of serious offenses and there is significance to the fact that it will be said that he who was convicted of their commission will be held accountable for them immediately after sentencing or closely thereafter.”  Moreover, public confidence in law enforcement authorities and the effectiveness of their actions, may be damaged as a result of the release of offenders who have been convicted and sentenced.  Before legislation of the Arrests Law, there was debate in this court whether considerations of deterrence and public confidence were relevant consideration in decisions as to detention pending completion of the proceedings in serious offenses.  But it is commonly accepted opinion that at the phase following overturn of the presumption of innocence, when a person’s guilt has been determined and his sentence passed, considerations related to deterrence and maintenance of the effectiveness of criminal punishment are relevant and proper.  These considerations are also relevant in the framework of exercise of discretion as to stay of execution of a prison sentence during the pendency of the appeal.  Similar considerations, related to deterrence, effective enforcement and fear of harm to public confidence in law enforcement systems as a result of the release of offenders after conviction and while their appeals are heard, we also find in the case law of other countries whose systems are similar to ours.  Thus, for example, in U.S. federal law emphasis has been placed on the element of deterrence in the framework of considerations related to the possibility of release on bail after conviction and until the disposition of the appeal.  This consideration was one of the considerations which was at the basis of the legislation of the Bail Reform Act of 1984 which made the conditions for release of convicted persons on bail during the period of appeal significantly harsher than  prior law.  (See U.S. v. Miller [51]; D. L. Leibowitz Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984 [71] 1081, 1094).

In Canada, as in the United States, the issue of stay of execution is legislated in the framework of statutes regarding the release of a convicted person during the period of appeal.  Section 679(3) of the Canadian Criminal Code establishes the conditions for release during the period of the appeal.  Subsection (c) conditions the release of a convicted person during the appeal, inter alia, with the fact that “His detention is not necessary in the public interest."  The appeals courts in several Canadian provinces interpreted the above condition as including, inter alia, the consideration of the impact of the release of the convicted person on public confidence in the law enforcement systems.

“I think it can be said that the release of a prisoner convicted of a serious crime involving violence to the person pending the determination his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instance the accused is presumed to be innocent, while in the former he is a convicted criminal. The automatic release from custody of a person convicted of a serious crime such as murder upon being satisfied that the appeal is not frivolous and that the convicted person will surrender himself into custody in accordance with the order that may be made, may undermine the public confidence and respect for the Court and for the administration and enforcement of the criminal law.”  (R v. Demyen [54])

For additional judgments in which a similar approach was adopted see R v. Pabani [55]; Mcauley v. R [56]; Baltovich v. R [57].

It should be noted that in Canadian case law there are also other opinions which emphasize, in the framework of the “public interest” test, the fear of “pointless imprisonment.”  Lacking case law of the Canadian Supreme Court on the matter, it appears that the more accepted approach is the one presented in the Demyen case above: “At this point, it is seen to be an intelligible standard under which to maintain confidence in the administration of justice” (D. Stuart Charter, Justice In Canadian Criminal Law (2nd ed., 1996) [67] 357).  It should be commented that the approach which emphasizes the importance of the public interest in immediate enforcement of the prison term was expressed in the Demyen case above and in other cases in relation to serious offenses of violence.

14. As said, the public interest with its various aspects, including considerations of deterrence, effectiveness and protection of  public confidence in the law enforcement system, still hold when we are discussing the matter of stay of execution of a prison sentence during the pendency of the appeal.  However, where there is an appeal of a decision in which imprisonment has been imposed, the fear of damage to the public interest and the weight it is to be given is of a more complex nature.  Against the considerations we have listed above, there stands the need to avoid irreparable and significant damage to the convicted party due to his immediate imprisonment, if it turns out after the fact – after his appeal was heard – that his imprisonment was not justified.  The severity of such injury is not to be underestimated.  “. . .denying his personal liberty is a particularly harsh injury.  Indeed,  denying personal liberty by way of imprisonment is the most difficult punishment that a civilized nation imposes on criminals.”  (In the words of Justice Zamir in HCJ 6055/95 Sagi Zemach and others v. the Minister of Defense and Others [38] in paragraph 17)  Such an injury is not just the business of the individual but touches on the interests of the general public; the clear public interest is that people who will eventually be declared innocent in a final judgment not serve time in prison.  Moreover, the public confidence in legal systems and enforcement may be severely injured if it turns out after the fact that the prison time served was not justified.  Justice Strasberg-Cohen pointed this out in MAppCr 4590/96 (Mercado) [31] above:

“Indeed as a rule, the accused who is convicted is to serve his sentence without delay and is not presumed to be innocent, non-immediate execution is likely to damage public confidence in the system, however, the acquittal of a convicted person on appeal after he has served a prison sentence that was imposed on him, may damage public confidence in the system, no less so.”

A similar approach was expressed in Canadian case law:

“Whatever the residual concerns which might cause individuals to question their confidence in a justice system which releases any person convicted of murder pending appeal, they would, in my view, pale in comparison to the loss of confidence which would result from an ultimate reversal of the verdict after Mr. Parsons had spent a protracted period in prison." (R v. Parson [58]).

15. Realization of the right of appeal which is given to the convicted person by law is also a consideration which the court must take into account when determining the question of stay of execution of a prison term.  In order to determine the matter before us I do not find it necessary to make a determination as to the weighty question of the legal status of the right of appeal.  I will note only that the claim of the applicant’s counsel in this matter that from the very anchoring of the right of appeal in section 17 of the Basic Law: the Judiciary, the conclusion is to be drawn that it is a matter of a constitutional basic right that cannot be limited except in those cases where there are grounds for detention, is far reaching and not to be accepted.   The question of the normative status of the right of appeal in our system is not a simple question and it has already been determined more than once in the case law that the right of appeal is established by law and is not included among the basic rights in our law, as determined by Justice Shamgar in HCJ 87/85 Argov and others v. the Commander of the IDF Forces for Judea and Samaria [38].

“The right of appeal is not counted among the basic rights that are recognized in our legal system which draw their life and existence from the accepted legal foundational concepts, which are an integral part of the law that applies here, as in the examples of freedom of expression or the freedom of occupation.” (Ibid. at pp. 361-362).

This court in fact did not recognize the right of appeal as a basic right, but the case law has emphasized the great importance of the institution of appeal “as an integral component of fair judging.” (See the High Court of Justice case, Argov above).  In light of the importance of the right of appeal it has been decided that an interpretation which grants the right of appeal is to be preferred over an interpretation which denies it.  (See HCJ 1520/94 Shalem v. The Labour Court and others, [39] at p. 233; MAppCr 2708/95 Spiegel and others v. State of Israel [40] at p. 232).  The Basic Law: Human Dignity and Freedom does not explicitly recognize the right of appeal.  The question whether it is possible to recognize a constitutional right of appeal among the protected rights in the Basic Law: Human Dignity and Freedom has not yet been considered in the case law.  Various possibilities can be conceived for anchoring the right in the Basic Law, whether as derivative of rights explicitly detailed in the Basic Law (in our matter – the right to liberty and perhaps dignity), and whether as stemming from the principle of proportionality in the limitation clause (meaning: defining the violation of liberty, property and more without first having an appeals process, is a violation “that exceeds that which is necessary.”  Compare to the words of Justice Or – as to the right to a fair trial – in LCA 5587/97 Israel Attorney General v. Ploni (John Doe) [41] at p. 861).  On the other hand, a view has been expressed which objects to the recognition of the right of appeal as a right that is derived from the Basic Law, although in discussion of the civil aspect, primarily for pragmatic reasons and taking into consideration the characteristics of our legal system (see S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ [64] at pp. 462-463, and the discussion in his book supra at pp. 30-33).  It is interesting to note that in legal systems close to ours the right of appeal is not recognized as a constitutional right; it is not explicitly mentioned in the United States Constitution or the Canadian Charter of Rights and Freedoms, and to date has not been recognized as part of the constitutional right to due process.  (See; McKane v. Durston [52]; Jones v. Barnes [53]; W. R LaFave Criminal Procedure (2nd. ed., 1992) [68] 1136-1137).  Although voices calling for a re-examination of the law in this matter have been heard (See: in the United States – the minority opinion of Justice Brennan in the Jones case above; M. M. Arkin ‘Rethinking The Constitutional Right To a Criminal Appeal’ [72]; A.S Ellerson ‘The Right to Appeal and Appellate Procedural Reform’ [73]; in Canada see D. Gibson ‘The Crumbling Pyramid: Constitutional Appeal Rights in Canada’ [74]; R v. Farinacci [59].

As noted above, whether the right of appeal is recognized in our legal system as a basic right or not, there is no arguing its significant weight  in our system.  For the purpose of the matter which we are discussing – determining the discretion for stay of execution of a prison sentence in the framework of existing legislation – it is enough that we give thought to the rule of construction anchored in case law according to which an interpretation which gives the right of appeal is to be preferred over one that denies it.

16.  These are therefore the considerations and interests which are involved in exercising the court’s discretion in the stay of execution of a prison sentence, considerations which relate to both private individuals and the general public interest.  The court must exercise its discretion while conducting a proper balance among these considerations.  In the framework of conducting this balance special weight is to be given to the fear of unjustified violation of liberty.  The right to liberty has been recognized by this court as a basic right of the highest degree, that is to be respected and violation of it to be avoided to the fullest extent possible.  (See MApp 15/86 State of Israel v. Tzur [42] at p. 713 Justice Elon; The Judgment of Justice Heshin in MAppCr 537/95 Ganimat v. State of Israel [43] at 400-401).  Today the right to liberty is anchored in section 5 of the Basic Law: Human Dignity and Liberty.  The statutory provisions which we discussed above, which delineate the matter of stay of execution of a prison term, were in fact legislated before the legislation of the basic law and thus the provisions of the Basic Law cannot impinge on their validity (section 10 of the Basic Law: Human Dignity and Liberty).  However, the normative determination in the Basic Law, which defines the right to personal liberty as a constitutional right and which draws the balancing point between it and the various interests which society seeks to advance, influences the legal system overall; the significance of this influence, among other things is that the court’s interpretive work, as well as any exercise of discretion given to the court in the framework of existing legislation, will take place while taking into consideration the norm anchored in the Basic Law.  President Barak discussed this in the Genimat case above:

“What are the interpretive ramifications of the Basic Law: Human Dignity and Liberty for interpretation of old law?  It appears to me that one can point –without exhausting the scope of the influence – to two important ramifications of the Basic Law: first, in determining the statutory purpose at the core of an (old) statute, new and intensified weight is to be given to the basic rights established in the Basic Law.  Second, in exercising governmental discretion, which is anchored in old law, new and intensified weight is to be given to the constitutional character of the human rights anchored in the Basic Law.  These two ramifications are tied and interlaced with one another.  They are two sides of the following idea: with the legislation of the basic laws as to human rights new reciprocity was drawn between an individual and other individuals, and between the individual and the public.  A new balance has been created between the individual and the authorities.”  (Ibid. at p. 412)

17. As said above, the State claims that the defendant who has been convicted and sentenced to prison does not have a basic right to personal liberty.  Therefore, the State claims that the Basic Law: Human Dignity and Liberty has no relevance to the matter before us.  In any event the State claims that even if the right exists the law regarding stay of execution of a prison sentence meets the conditions of the limitation clause.  The general question whether the person who has been convicted and sentenced to prison has a ‘constitutional right’ to freedom, violation of which is subject to the tests of the limitation clause in the Basic Law, is a broad question.  Various approaches may be taken as to this question: thus for example it is possible to argue the absence of such a protected basic right, or to its being a right of lesser weight than other right which are anchored in the Basic Law (see A. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ [65] at p. 500; the words of Justice Dorner in HCJ 1715/97 Office of Investment Managers in Israel and others v. Ministry of Finance and others, [44] at p. 418 and on).  It is interesting to note that the Canadian case law that deals with the rights of prisoners, has recognized in certain cases the violation of the right to liberty of a convicted person serving a prison sentence, such as when there is a substantive change in the conditions of imprisonment or in the rules which apply to release on bail (see P.W. Hogg, Constitutional Law of Canada (4th. ed., 1997) [69] 1069; Cunningham v. Canada [60]; Miller v. The Queen [61] 112 – 118).

In our case there is no need to attempt and examine this question to its full extent and in the full range of situations in which it might arise.  This is because the question before us arises in a special situation and it is possible to limit the discussion to it alone.  In the matter before us, it appears to me that the State’s claim according to which determination of the question of the stay of execution of a prison sentence does not involve any violation of the right to liberty is not to be accepted.  The State is correct in its claim that when a person’s guilt has been determined by a court beyond a reasonable doubt, the assumption is that “there is a justification, which meets the standards of the limitation clause for executing the sentence imposed upon him.”  It is also true that the violation of the liberty of the convicted person is derivative of the judgment which has overturned the presumption of innocence, and from the sentence.  However, the complete distinction which the State wishes to establish in our case between denying liberty based on an authorized judgment and the determination of the date of commencement of the execution of the sentence, ignores the fact that the denial of liberty itself which is expressed in the immediate imprisonment, takes place at a stage in which the question of the accused’s  innocence has not been  finally determined.  A judicial judgment by which a person’ liberty is denied is also valid at the appeals phase as long as it has not been changed.  And yet, as long as a final decision has not been made there exists the potential to change the decision at the appeals phase and to reinstate the presumption of innocence.  In this situation, a decision whose significance is immediate imprisonment of a person, in accordance with the judgment which is the subject of the appeal, carries with it, beyond the immediate-physical violation of personal liberty, the possibility of serious violation of the liberty of an innocent person.  The severity of such violation may only be fully realized at a later stage, if, and to the extent that, the appeal of the convicted person is upheld and it is found that he served his sentence needlessly; but the existence of this possibility is the result of a decision as to the immediate execution of the prison sentence.  Against this background it can be said, that if we hold to the view that a person who has been convicted and sentenced to prison has no right to liberty then such a determination is fitting for an absolute conviction.  At the phase in which there is not yet a determination on the appeal of the convicted person, the right to liberty exists as a right but its intensity is weakened in light of the judicial determination which stands as long as it has not been overturned.

Indecision which relates to the question of violation of a constitutional right to liberty as a result of the immediate execution of a prison sentence prior to the determination of the appeal, has also been dealt with in the Canadian courts.  It is interesting to note that there, conflicting decisions have been handed down.  Thus, in the matter of R v. Farinacci [60] the prosecution’s claim – that was argued as part of a discussion as to the constitutionality of the statutory provision which deals with release on bail during the period of appeal –that the statutory provisions which deal with the release of a convicted person during the period of appeal do not violate the convicted person’s liberty, but rather the opposite is true – they advance it, and therefore are not subject to constitutional limitations, was dismissed.  In dismissing the claim the judge of the appeals court of Ontario established that:

“I cannot accept the respondent's contention that there can be no resort to s. 7 of the Charter in this case because s. 679(3) of the Criminal Code is not a provision which 'authorizes’ imprisonment but rather a provision which enhances liberty. There is, in my view, a sufficient residual liberty interest at stake in the post-conviction appellate process to engage s. 7 in some form. ... The respondent’s submission that s. 7 does not apply to bail pending appeal because, after conviction and sentence to a term of imprisonment, bail operates to enhance rather than to restrict liberty, proceeds from the same formalistic and narrow interpretation of constitutionally protected rights. In so far as the state purports to act to enhance life, liberty or security of the person, it incurs the responsibility to act in a non-arbitrary, non-discriminatory fashion and cannot deprive some persons of the benefits of the enhancement without complying with the principles of fundamental justice.” (Supra, at 40 - 41).

On the other hand, in another  decision in Canada the claim was dismissed according to which the statutory section which relates to release during the period of the appeal is not constitutional, while the claim of the prosecution there was upheld that the said statutory provision does not violate the right to liberty at all, as that was denied in the sentence, while the said statutory provision enables the freeing of the appellant:

“While the appellant's imprisonment clearly deprives him of his liberty, the authorization for this imprisonment does not derive from s. 679(3)(c). Rather, the appellant’s liberty is deprived by the sentence imposed by the trial judge. Nothing in s. 679(3)(c) adds to this deprivation. To the contrary, the provision affords a means of arranging the appellant's release. The appellant's liberty interests can only be enhanced by s. 679(3)(c), under which the operation of the sentence imposed by the trial judge may be temporarily suspended. There is thus no deprivation of any right in s. 679(3) (c). For this reason, I conclude that s. 7 does not apply to bail pending appeal.”

(R v. Branco) [62]).

In light of what has been said above it may be summarized and stated that when we come to establish the limits of appropriate judicial discretion for stay of execution of a prison term during the pendency of the appeal, we must do so while paying heed to the importance and the status of personal liberty, and the limits of permitted violation of it in accordance with the principles that were delineated in the Basic Law: Human Dignity and Liberty.  Justice Zamir discussed this in MAppCr 3590/95 Katrieli v. State of Israel [46], when he examined the guiding considerations in the matter of stay of execution of a prison sentence during the period of the appeal.

“Inter alia, weight is also to be given in this context to the Basic Law: Human Dignity and Liberty.  This basic right protects a person’s liberty (section 5) and although it is not sufficient to impinge on the validity of the Criminal Procedure Law, it is sufficient to influence via interpretation, the provisions of this statute as to release from detention or imprisonment.  In this vein, it is to be said that even when the law and the circumstances require denial of the liberty of a person in detention or prison, liberty is not to be denied to an extent that exceeds that which is necessary.”  (Emphasis added D.B.)

18.  In light of the various considerations and interests involved in the matter of stay of execution detailed above, how will the court exercise its discretion when coming to examine an application to stay execution of a prison sentence that has been imposed, until disposition of the appeal?  We will note first that the response of the applicant’s counsel to this question which rests primarily on the decision of Justice Ilan in the Hahami case above, is not acceptable to us.  This approach according to which the very filing of the appeal justifies stay of execution of the sentence, with the exception of cases where there is a fear that the convicted person will endanger public safety or will not appear to serve his term, is far reaching.  It does not properly distinguish between the phase of detention – when the presumption of innocence still holds, and the phase after conviction; it misses the target of the objective of giving effective deterrent expression to penal law punishment and may damage public confidence in the law enforcement system due to the release, as a matter of course, of those who have been convicted of criminal offenses.  It may also encourage filing meaningless appeals for the purpose of stay of the prison sentence.  In this matter we also cannot learn from the customary  law on this issue in the continental systems, where the criminal procedural process, the definition of the tasks of the court of appeals and the degree of its involvement in the determinations of the court of first instance is different from our system.  (See S. Levin’s book, ibid. [63] Damaska article [70] ibid.).

With that, the “accepted approach” for stay of execution of the prison sentence during the pendency of the appeal, in its traditional and limited meaning, no longer stands.  The appropriate approach to this issue must take into consideration and give weight to the totality of relevant considerations and interests which we have discussed which may apply to the various interests involved in the matter and the their degree of intensity under the circumstances and give them the appropriate relative weight.  According to this approach strict rules are not to be established for the exercise of discretion but rather guiding frameworks are to be delineated for its exercise.  The starting point must be that the court must utilize its discretion in a manner that takes into account the public interest in immediate enforcement of imprisonment, still prior to the hearing of the appeal, but must take care, however, that the realization of this interest does not harm the convicted person and their rights in a manner that goes beyond that which is necessary.  As detailed above, the directive of the legislature is that as a rule, a sentence of imprisonment is to be executed immediately after the sentence is handed down.  As we have explained, filing an appeal on a judgment does not in and of itself stay execution of the judgment, but rather the matter is given to the discretion of the court.  Nonetheless, when the court comes to decide on an application to stay  the date of commencement of the prison term on the basis of the authority given to it by law, the filing of an appeal constitutes an additional consideration that may impact the totality of considerations which are before the court, and the balance among them.  The burden is on the applicant for stay of execution of the prison sentence to convince the court that under the circumstances the public interest in immediate execution of the prison sentence  is overridden by the additional interests implicated in the case which we have discussed above.

The relevant considerations and interests will be examined by the court that is considering the applications, without purporting to present a closed list, we will discuss below the circumstances and primary considerations that the court must weigh when considering an application by the convicted person to stay execution of the prison sentence during the pendency of the appeal on the judgment:

(A)  The Severity of the Crime and the Circumstances of its Commission: the severity of the crime and the circumstances of its commission influence the intensity of the public interest in immediate enforcement of the prison sentence.  As a rule, the more severe the crime and the circumstances of its commission, the greater the public interest in immediate enforcement of the imprisonment, in its various aspects.   So too, as to the fear of the danger that the convicted person poses to the public, the severity of the crime of which he was convicted can in and of itself be an indication of his dangerousness.  As to the essence of the offenses which constitute on their own an indication of dangerousness, one can also learn from the laws of detention, according to which being accused of certain offenses creates a presumption as to the dangerousness of the accused (see: Arrests Law s. 21 (a)(1)(c)).  It is to be noted that in American law it has been established by law that a person who was convicted of committing certain serious offenses, such as violent offenses or offenses punishable by death or imprisonment beyond a certain time period, are not to be released on bail or the conditions for release are harsher than usual (see Bail Reform Act of 1984, s. 3143(b)(2); 8A Am.  Jur.  2nd. [76] 283) the severity of the crime and the circumstances of its commission also have ramifications on the intensity of the interest of protecting the effectiveness of criminal punishment and the actions of law enforcement authorities; the greater the severity of the offense and the circumstances of its commission, the greater the public interest in achieving effective deterrence from commission of similar crimes by others and the greater the fear of damage to the effectiveness of punishment and public confidence in enforcement systems if the convicted person is set free.  And note: as to this last matter I do not believe that the severity of the offense needs to be determined only according to the measure of the violence involved in its commission.  According to my approach, even the release of somebody convicted of committing offenses that do not involve severe violence and are not of the type of offenses listed in section 21 (a) (1) (c) of the Arrests Law, but which damage protected social interests of importance, including offenses of far-reaching fraud or corruption offenses that were committed through the abuse of public office, may under certain circumstances damage public confidence in law enforcement authorities and the effectiveness of criminal enforcement.  Such damage is a consideration among the considerations of the court in making a determination as to stay of imprisonment, within the examination of the background of the other facts of the case.

(B).  The Length of the Prison Term Imposed on the Convicted Person: The length of the prison term may affect the court's discretion in a number of ways.  First, when the prison term is brief, relative to the date in which the appeal is expected to be heard, there exists a fear that the convicted person will serve his sentence before his appeal is heard.  In such a case, it is appropriate to stay execution of the sentence in order to enable the convicted person to effectively realize the right of appeal which he has by law.  This approach is also acceptable within the traditional approach for staying execution of a sentence.  And it appears that it is necessitated by the accepted rules of construction as developed in the case law, according to which legislation is to be constructed in a manner that validates the right of appeal and enables its realization.  Second, the length of the prison term imposed on the convicted person may influence the assessment of the fear of flight of the convicted person from the law or attempts by him to obstruct justice; the concrete knowledge of the convicted person that if he fails in his appeal he is to expect a prolonged prison term, may increase the fear that he may flee from the law, this is so even if in the course of his trial in the trial court he appeared for his trial as required.  Third, the severity of the punishment that was imposed on the convicted person teaches us of the severity of the crime of which he was convicted, as generally punishment reflects the severity of the criminal act.

(C).  The Quality of the Appeal and the Chances of its Success: A central question to which we must give thought is what is the weight that is to be given to the fact of filing an appeal and to the chances of the appeal.  For the reasons we have already detailed, we have seen fit to reject the approach according to which the very filing of an appeal justifies stay of the execution of the sentence.  However, it appears that a perspective according to which it is appropriate to make a change from the present law, relates to the weight that is to be given to the quality of the claims raised in the appeal and the chances of its success in the framework of examining an application to stay execution of a sentence until the disposition of  the appeal.  The accepted approach in the case of stay of execution of a sentence leaves a particularly narrow opening for consideration of the appeal of the convicted, when it is not a matter of a short prison term and light offenses.  According to this approach, only conspicuous chances to win the appeal or salient distortion in the conviction justify stay of execution of the sentence during the pendency of the appeal.  This test establishes a high threshold which only in a few cases will the convicted person seeking to stay his imprisonment meet.  Such a test can injure in a disproportionate manner the freedom of the convicted person and the effective realization of the right of appeal; it creates an overly large gap between the level of examination at the preliminary phase of the decision on the application to stay execution of the sentence, and examination of the appeal itself, and increases the chances that serving the sentence will turn out retroactively to be unjust.  Under these circumstances, the means of immediate execution of a sentence may cause damage which is more than the utility contained within it.  It is not superfluous to note, that the test as to the chances of the appeal as it had been phrased in the case law, has in point of fact "been abandoned" in many decisions of this court, and even the State in its arguments before us does not phrase the appropriate rule according to its approach with such narrow language.

The consideration which relates to the chances of appeal is a relevant consideration to the question of stay of execution of the sentence during the period of appeal.  The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment before the appeal is heard on the merits.  However, it is not to be ignored that the consideration as to the chances of the appeal is a complex consideration, and assessing the chances of the appeal and its quality places before the judge difficulties which are not negligible.  From the character of the procedure which takes place during the application to stay execution of the sentence it can be derived that the judge does not have sufficient tools to assess in an informed manner the arguments raised in the appeal; the procedure takes place on the basis of a theoretical examination of these arguments and does not generally include studying the transcript and the totality of the evidence that was brought in the case.  Moreover, it is not desirable that a judge dealing with an application to stay the execution of a sentence, will make determinations that may have an influence on the discussion in the appeal itself.  Despite said difficulties, we are not dealing with an extraordinary assignment that judges are unaccustomed to.  Theoretical assessments are not new to the court, and it is accustomed to implementing considerations of this type at the phase of discussion of detention pending completion of the proceedings as well, when the presumption of innocence still stands.  A similar process of assessing the theoretical chances of an appeal, is also familiar to the court when dealing with applications to stay execution of a sentence in civil appeals.  We will note further that  in other legal systems which are similar to ours, weight is given to the chances of appeal and its quality in the framework of a determination as to stay of imprisonment until disposition of the appeal: thus, it is determined by federal law in the United States that the release of a convicted person on bail during the course of the pendency  of his appeal is conditioned on his proving that his appeal "raises a substantial question of law or fact likely to result in reversal..."  (Bail Reform Act of 1984, S. 3143 (b) (B)).  Courts are split as to the interpretation of this section, but it appears that the common approach is that the convicted person must show that the appeal raises a  question that is at least "balanced" in its chances ("close question").  (See T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the Bail Reform Act”  [75] 198). Indeed, the Canadian Law makes do with the requirement that the appeal  is not baseless or ‘frivolous,’ but in a number of decisions a statutory condition as to the lack of public interest in the imprisonment of the convicted person has been interpreted as including, inter alia, the assessment of the quality and strength of the appeal arguments. (See: R. v. Mcauley (1997) Ont. C.A Lexis 3[56]; R. v. Farinacci [59]; R v. Pabani [55]).

The theoretical assessment of the chances of appeal, in the framework of examining an application to stay execution, is not done by a "mechanical" probability test relative to the possible results of the appeal: such an examination is not possible in fact and it is not desirable for it to be undertaken by a single judge at such an early phase of the discussion.  The judge dealing with an application to stay execution of a sentence is to examine the quality of the arguments on appeal and their type, and assess their  inherent potential to influence the outcome of the appeal.  The theoretical strength of the arguments will be examined against the background of the accepted rules in our system relative to the exercise of review by the appeals court.  Thus, for example, claims by the applicants to change factual findings of the lower court which are based on its impression of witnesses, or reliable determinations of that court, will not generally be sufficient to base good theoretical chances for the appeal.  When the appeal is focused on legal questions, for which it can be determined on a theoretical level that they raise real difficulty, this will be sufficient, generally, to point to an appeal which justifies stay of execution of the sentence until these are clarified.  It is not unnecessary to note that it is not the outer legal dress which is given to the appeal argument which is determinative, but the substance of the argument and the degree of its relation and relevance to the concrete circumstances of said case, in a manner that is sufficient to influence the results of the appeal if the claim is upheld.  Thus,  it can be summarized that when it is a matter of serious arguments, that by their nature and character – if they are accepted – are sufficient to influence the results of the appeal this will contain a significant consideration for justifying stay of execution of the imprisonment until disposition of the appeal, all this taking into account the totality of circumstances of the matter.

(D.) The Criminal History of the Convicted Person and his Behavior During the Course of the Trial: as has already been noted above, these circumstances may point to the degree of dangerousness that is posed to the public from release of the convicted person and the existence of a fear of flight from the law.  This being the case, they may be relevant to applying the court's discretion when it examines whether to stay execution of a prison sentence until disposition of the appeal.  And note: this is not a matter of a consideration that stands on its own, and therefore it is not in every case that the convicted person without a criminal history or for whom it has been proven that he appeared properly during the course of his trial, will be sufficient to determine the matter of stay of execution of a prison sentence.  It may even be said that generally, at the phase after conviction, a clean record and careful adherence to the conditions of bail during the time of the trial proceedings, are not of themselves sufficient to tilt the scale to stay execution of the sentence, taking into account the impact of the conviction and sentence on the assessment of the dangerousness and on the fear of flight by the convicted person, and considerations of deterrence and effectiveness which we discussed above (see paragraph 13 supra).  But in the framework of the totality of the relevant considerations against the  examination of the severity of the offense, the degree of punishment that was imposed and the nature of the appeal, it is possible to also take into account data as to a clean criminal history of the convicted person and his good behavior during the course of the trial.

(E) The Personal Circumstances of the Convicted Person: in the framework of examining the application to stay execution of a prison sentence, it is possible to also examine, in appropriate cases, the personal circumstances of the convicted person.  A judicial decision, whose immediate significance is imprisonment of a person, whether it is a matter of the sentencing phase or whether it is the appeal phase, does not need to entirely ignore any claim as to personal circumstances of the person and as to the consequences he may expect as a result of his imprisonment.  Accordingly, personal circumstances constitute a consideration in the stay of execution of the prison sentence not only under the circumstances of the filing of an appeal.  Moreover, the existence of special personal circumstances, may also influence the weight of the public interest in immediate execution of the prison sentence.  The words of Justice Barak in MAppCr 37171/91 State of Israel v. Golden [46] which were said on the separate  topic of detention pending completion of the proceedings on the grounds of severity of the offense (prior to legislation of the Arrests Law), are appropriate here:

"The injury to the effectiveness of the criminal law and its enforcement, which is caused where someone who committed a severe offense, is "out and about" is tied, by its nature, to the theoretical circumstances of commission of the crime.  The efficiency of law enforcement will not be harmed, if someone who theoretically committed a serious offense is not detained because they are dying.  Everybody understands that the special circumstances of the case justify that even someone who theoretically committed a severe offense, will not be arrested under these circumstances.  Quite the opposite: arrest of the accused under these circumstances may create the impression that the state is taking revenge on the suspect and seeks him ill." (Ibid. at p.  814.  Emphasis added -- D.  B.)

It appears to me that the logic behind these words is appropriate, with the appropriate changes, also when we are talking of the difficult personal circumstances of the convicted person whose appeal is pending.  Indeed, taking into consideration the fact that we are now at the phase after conviction, it is possible that personal circumstances -- on their own -- will not generally have much weight in the decision of the court as to the stay of execution of a prison sentence, as the premise is that the court that imposed the sentence, also considered among the punitive considerations the existence of these circumstances.  However, there may be cases in which it appears on the face of it that this premise does not exist; thus for example, when the personal circumstances which are argued developed or changed significantly after the sentence was handed down.  So too, in other cases due to the special personal circumstances of the convicted person, such as his young age, his difficult mental condition or additional considerations for which the consequences of execution of the prison sentence may be particularly difficult.  In such cases, the personal circumstances will add additional weight to the decision to stay execution of the prison sentence until disposition of the appeal.  We will note that from examination of the decisions of this Court in applications to stay execution it appears that special personal circumstances indeed occasionally serve as a consideration among the considerations of the court when coming to determine applications to stay execution of prison sentences during the pendency of the appeal (see for example MAppCr 4092/94 Tioto v. State of Israel [47]; CrimA 6579/98 Friedan v. State of Israel [48]).

(F) Appeal as to Severity of the Punishment:  An additional consideration that is to be weighed in applications to stay execution of prison during the period of appeal, is whether the appeal is directed against the judgment and challenges the conviction itself, or whether it is a matter of an appeal that deals with the severity of the punishment that was imposed only?  As a rule, in appeals of the latter type, the tendency will be not to stay execution of the prison sentence.  When the appeal is on the severity of the punishment, the balance of the considerations and interests which is before the eyes of the court may change.  In such a case, the conviction itself -- which refutes the presumption of innocence -- is absolute, and  the same potential does not exist for it to be restored on appeal, which we discussed above.  Examining the quality of the appeal and its chances will be done while noting the rules as to the degree of intervention of the appeals court in punishment that was imposed by the trial court, and the question of the relationship between the time expected for hearing the appeal and the period of imprisonment that was imposed on the convicted person.  When on the face of it is not a matter of a punishment which deviates from the accepted punitive policy, and when the degree of punishment that is accepted in similar cases is greater than the amount of time expected for hearing the appeal, execution of the prison sentence will not be stayed except in exceptional circumstances and the burden for showing this is so will be on the applicant.  (Compare: CrimA 3602/99 Ploni (John Doe) v. State of Israel [49], Justice Ilan; 3976/99 Ephraimov v. State of Israel [50], Justice Strasberg-Cohen).

19.  As said, the list of circumstances detailed above does not purport to be exhaustive.  It exemplifies the type of circumstances and considerations that have in them to influence the application of discretion by the court when it comes to determine an application to stay execution of a prison sentence during the pendency of the appeal; these considerations relate to the public interest in immediate enforcement of the judgment on the one hand, and preservation of the rights of the convicted person on the other hand.  The court must determine each and every case according to its facts, while balancing between the different interests which we have discussed above relating to the topic.  It is important to emphasize that the considerations which we discussed are not static and do not stand on their own, but influence each other.  The work of balancing between them will be done after assessing the strength of the various interests and the weight that is to be given to each of them under the circumstances of the case.  Thus, for example, the more the convicted person can show that his theoretical chances of success on appeal are good and well founded, the lesser the weight of the public interest in immediate enforcement of imprisonment, and thus, depending on the matter, will be narrowed to those considerations of danger to the public or flight from the law, which also apply in the law of detention pending completion of the proceedings.  So too, the more it is a matter of conviction of a more severe criminal offense, the circumstances of whose commission are more severe, so too will the burden increase on the convicted person that seeks to stay execution of his prison term to show that there exist circumstances which justify stay of execution of the prison term despite the public interest in its immediate enforcement.

Conclusion

20.  In conclusion, the summary of our position as to stay of execution of a prison sentence during the pendency of appeal, is this:

A.  The filing of an appeal is not sufficient on its own to stay execution of a prison sentence.  Stay of execution of a prison sentence during the pendency of the appeal is a matter for the discretion of the court.

B.  The approach which was accepted in the case law of this Court, according to which stay of execution of a prison sentence during the period of appeal is a matter of an exception which applies only in extraordinary cases and under the existence of special circumstances, no longer holds.

C.  In applying its discretion as to stay of execution of a prison sentence during the period of appeal, the court will consider the public interest in immediate enforcement of the judgment, and considerations which relate to the convicted individual and his rights in light of the existence of a pending appeal proceeding; the court will make sure that protection of the public interest will not harm the convicted person and his rights in a manner that is not proportional.  The type of relevant circumstances and considerations which the court will take into account when applying said discretion, were detailed in our decision.

D.  The burden on the applicant for stay of execution of the prison sentence is to convince the court that under the circumstances of the case, the public interest in immediate execution of the prison sentence retreats in the face of the additional interests involved in the matter.

The approach we propose is not new to the case law of this Court; and it is integrated with a broadening trend taking shape in previous decisions of the court, such as for example in the judgments of Justice Strasberg-Cohen in the Mercado, Kochanski, and Sharabi cases above.  This approach operates to make the accepted approach for stay of execution of a prison term during  the pendency of the appeal more flexible in a manner that will reflect the totality of considerations and interests involved in the matter, while giving appropriate weight to the concern for violation of the rights of the convicted person.

From the General to the Specific

21.  Having drawn the basic framework, we turn to the application of the guidelines in exercising our discretion in the circumstances of the applicant’s case.  It should first be said that the case before us is not of the easier cases for determination, both because of the type of offense, and because of the reasons for the appeal and because of the "borderline nature" of the period of imprisonment.  Moreover, the date of determination of the appeal arrived after the applicant received, in fact, a significant stay of execution during the time that was required to formulate our approach to the fundamental issue.  However, the correct question is – if the matter of the applicant had come to us a priori -- whether based on the guidelines that we have delineated we would have upheld the application to stay execution of the prison sentence until the disposition of the appeal.  I have come to the conclusion  that were I to consider the application and make a decision as to it a priori, according to the criteria we proposed, while balancing among the relevant considerations, I would have tended in the direction of immediate execution of the prison sentence.

The offenses with which the appellant was convicted -- rape and sodomy -- are severe offenses, and seemingly by their nature are the type of offense which point to the dangerousness of the person convicted of committing them.  Generally we will rarely stay execution of the sentence for convictions of offenses of this type, for reasons of public interest, including the enforcement interest.  Moreover, the period of imprisonment that was imposed on the applicant -- 3 years of imprisonment in fact-- is not considered among the short time frames for which it is appropriate to give a stay of execution only to enable hearing of the appeal; at most, it would have been justified to move the hearing of the appeal forward, in consideration of the length of the prison term.  When we come to weigh the chances of the appeal we must give thought to the fact that the notice of appeal is directed primarily against findings of fact and findings of credibility, and does not raise serious legal questions.  Generally such an appeal, on its face and lacking reasons that would show otherwise, does not have a large theoretical chance, even if of course we cannot rule out the possibility that the claims or some of them will eventually be accepted.  To all this is to be added, that apparently it arises from the sentence that the court took into account the personal circumstances of the applicant, and the normative background, and gave them expression in the sentence that was handed down.  There are not in the personal circumstances of the applicant extraordinary considerations of the type that justify stay of execution of the prison sentence in order to prevent special harm that is expected from the fact of imprisonment.  Therefore, if the grounds for the application had been before us under regular circumstances they would not be sufficient to convince us to stay execution of the sentence.

However, when we come to determine the matter of the applicant today, we must also consider among our considerations the fact that the applicant has been free on bail for a long period of time since the sentence was handed down and his appeal may be heard soon.  For this reason, and in consideration of the date that has been set for hearing the appeal, it is not appropriate, at the present phase in the proceedings, to order the immediate imprisonment of the applicant. 

 

President A. Barak

I agree.

 

Vice-President S. Levin

I agree

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice M. Cheshin

I agree.

 

Justice T. Strasberg-Cohen

I agree.

 

Justice D. Dorner

I agree.

 

Justice Y. Kedmi

1. Stay of Execution of a Prison Sentence

My colleague, Justice Beinisch is worthy of accolades for the effort invested in preparing her thorough and comprehensive opinion.  Strength to him.

I join the result that my colleague has reached: and the framework of considerations proposed by her as a basis for consideration of an application to stay execution of the prison term against the background of filing an appeal is acceptable to me.  However, in light of the language of the summary presented in paragraph 20.b. to the judgment which states: “stay of execution of a prison term during the period of appeal,” is no longer “an exception which applies only in extraordinary cases and under the existence of special circumstances” – I find it necessary to add a qualifying comment.

The summarizing language in said paragraph may leave the impression, that stay of execution of a prison term under said circumstances is no longer an ‘exception’ to the rule which requires immediate execution of such a judgment.  In my approach, from the substantive-fundamental approach, this is not the stance which is necessitated by the clarification undertaken by my colleague in this matter in her judgment; and does not sit well with imposing the burden of persuasion – as to existence of circumstances which justify stay of execution on the applicant, as necessitated by the language of paragraph 20.d. of the summary.

Reading the judgment teaches me at least, that from the fundamental perspective the law and the case law in the following two areas have stayed as they are.  One – and this is the primary one – that based on the written law, the rule is that a prison term is to be executed immediately upon imposition, unless there exist grounds which justify staying its execution; when the individual seeking the stay, bears the burden of persuasion of the court as to the existence of the grounds.  And the second – whose practical significance does not fall below that of its predecessor – that the central consideration for justifying deviation from the said rule, is contained in the chances of the appeal’s success.  I have also learned from the judgment: that the specific secondary considerations which are grounded in the special circumstances of a said case – that were developed in this context in the case law, have also been left as is; and there is no basis for the argument heard lately in courts according to which: the provisions of the Basic Law: Human Dignity and Liberty, undermine the basis from the existing law in the matter of stay of execution and necessitate establishing an innovative approach, at the basis of which stands the constitutional right to personal liberty.

The change presented in the judgment, is, in my view, a change in the policy of the application of the existing rule; as opposed to a conceptual change which establishes a new rule.  To this character of the change – with which, as said above I agree – I found explicit expression in the words of my colleague according to which: the change “relates to the weight that is to be given to the quality of the arguments raised in the appeal and the chances of its success”; in a manner that “The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment.”  Therefore: we do not have a fundamental revolution here, rather – clarification of the proper application of the rule already existing for us according to which: from now on the threshold of requirements for stay of execution, is no longer as high as was to be understood from decisions given in the past in this matter, but lower and more flexible.

In summary, in my view – and in this I differ from the conclusion – there are two guidelines necessitated by the judgment: first – there is no room for the approach which says that “only blatant chances for success on appeal or a manifest distortion on the face of the conviction, justify stay of execution of the prison sentence during the pendency of the appeal”; and second – the judge considering the application must examine “the quality of the arguments on appeal and their type to assess the potential entailed in them to influence the results of the appeal.”

2. Joining a Party to the Proceeding as a “Friend of the Court”

Granting the Public Defender’s application to join the discussion as a “friend of the court” in the case before us, is not in line with my view in the matter.  Here are a number of comments which reflect, fundamentally, my view on the subject.

The inherent authority of the court to join a “friend” to the discussion is an exception to the character of the judicial proceeding which is customary here.  It is proper therefore to take care to make use of this authority in the rarest of cases, when the circumstances justify not only deviation from the rule, but necessitate it.  The fact that the “friend”  has the power to offer the court “assistance” in the solution of the legal problem before us, does not constitute, on its own, a sufficient basis for inviting a “friend” to join the discussion.  For it we say this, the “friend” will become the “legal helper “of the court; and in my view this is not the purpose of the existence of this institution.  In our system, the court copes with “legal issues” with the help of the “natural” parties who appear before it; when at the top of their priorities – and this is particularly so of defense attorneys – stand the accused and not consideration of the analytical-fundamental legal issue, which relates to the totality of accused or others involved in the criminal act which is the subject of the discussion.  The court does not need offers of professional legal help from the broad public; and particularly not from those who have an interest in promoting one solution or another to a problem that is to be determined in the discussion taking place before it.

As a rule, therefore, it is appropriate, in my view, to limit the invitation of a “friend,” to circumstances of “procedural necessity,” meaning: to circumstances in which the involvement of the “friend” is necessary to ensure the existence of a proper and fair discussion in the matter of the accused standing trial; as opposed to circumstances in which “friends” seek to present their own positions in the matter under discussion.  The friend is indeed the friend of the Court; however, from a practical standpoint, he is the friend of the accused who is in distress. In the case before us, the application of the Public Defender to be joined to the discussion as a “friend” of the court did not come against the background of coming to the aid of a defendant in distress in order to ensure a fair trial in his matter; but rather, against the background of its desire to advance its fundamental position in the legal issue that has been placed by the parties before the court.  In fact, the Public Defender seeks to join itself to the discussion as the “friend of all accused,” all of them; and this so that it will have the opportunity to convince the court of the justness of a judicial policy which appears to it to be consistent with “rights of the accused.”  This is not the end  to which the Public Defender was established; and in any event, this is not the purpose of the existence of the institution of the Court.

In summary: in my view, the institution of the Public Defender was established to ensure legal representation for the accused, when circumstances exist as established in the law; and is not assigned with the advancement of the interests of all defendants as such.  In any event, even if it was assigned the task of protecting the rights of accused in general, this is not sufficient to grant it the status of “friend of the court”; and to prefer it over any other organization that sets as its goal to advance the interests of others “involved” in the criminal proceeding, such as: the entities handling the protection of rights of the victims of the offenses.  It is appropriate that advancement of the rights of all accused be done elsewhere and not in the framework of the consideration of the matter of a given accused person.

Therefore, the application to stay execution of the prison sentence is granted as per the judgment of the Hon. Justice Beinisch.

 

4 Sivan 5760

June 7, 2000

Full opinion: 
PDF icon Schwartz v. State of Israel.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/99/110/001/N12/99001110.n12.pdf

Rassi v. Attorney General

Case/docket number: 
CrimA 7/53
Date Decided: 
Friday, July 31, 1953
Decision Type: 
Appellate
Topics: 
Criminal Law
Conviction
Sentencing
Abstract: 

The appellant, a nun and a supervisor of an orphanage, was convicted on a number of counts of assaulting children under her care in that she had inflicted corporal punishment upon them for bad behaviour; she was fined IL. 150 and directed to furnish security for good behaviour. It was contended on her behalf that she stood in loco parentis and as such was entitled to inflict such corporal punishment on the children as she considered necessary.

               

Held: dismissing the appeal:

               

(a) that the principles of English common law should be applied according to which parents are entitled to inflict corporal punishment upon their children in order to bring them up correctly and teach them discipline;

 

(b) when parents send their children to a school they delegate this right to the teachers;

 

(c) both parents and teachers are obliged to exercise the greatest care, and may only inflict punishments which are humane and reasonable and for the sole purpose of correcting the child. They may only use methods of punishment which are not likely to involve danger to life or health;

 

(d) in the circumstances of this case the punishments inflicted by the appellant in this case were excessive. In view of the previous devoted service of the appellant to children and to the poor, the fine should be remitted, Landau J. dissenting on this point.

 

Voting Justices: 
Cheshin, Shneor Zalman
Primary Author
majority opinion
Landau, Moshe
Author
concurrence
Assaf, SImha
Author
concurrence
Full text of the opinion: 

Crim.A.  7/53

 

           

DALAL RASSI

v.

THE ATTORNEY-GENERAL

 

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[July 31, 1953]

Before: Cheshin J., Assaf J., and Landau J.

 

 

 

Criminal Law - Assault - Principal of Orphanage - Principles of English Common Law - Jewish law - Right to inflict corporal punishment on inmates  - Punishment to be humane and reasonable and for sole purpose of correcting child.

 

                The appellant, a nun and a supervisor of an orphanage, was convicted on a number of counts of assaulting children under her care in that she had inflicted corporal punishment upon them for bad behaviour; she was fined IL. 150 and directed to furnish security for good behaviour. It was contended on her behalf that she stood in loco parentis and as such was entitled to inflict such corporal punishment on the children as she considered necessary.

               

                Held: dismissing the appeal:

               

(a) that the principles of English common law should be applied according to which parents are entitled to inflict corporal punishment upon their children in order to bring them up correctly and teach them discipline;

 

(b) when parents send their children to a school they delegate this right to the teachers;

 

(c) both parents and teachers are obliged to exercise the greatest care, and may only inflict punishments which are humane and reasonable and for the sole purpose of correcting the child. They may only use methods of punishment which are not likely to involve danger to life or health;

 

(d) in the circumstances of this case the punishments inflicted by the appellant in this case were excessive. In view of the previous devoted service of the appellant to children and to the poor, the fine should be remitted, Landau J. dissenting on this point.

 

Palestine cases referred to:

(1)   Cr. A. 31/41 Mohammad Saleh Abu Miriam v. The Attorney-General; (1941), S.C.J. 128.

(2)        Cr. A. 8/46 Imkheiber Hussein Kataf v. Attorney-General; (1946), 13 P.L.R. 39.

(3)        Cr. A. 116/47 Hasan Amhad Atiyeh v. the Attorney-General  (1947), 2 .L.R. 729.

 

English cases referred to :

(4)        Fitzgerald v. Northcote (1865), 4 F. & F. 656.

(5)        R. v. Hopley (1860), 2 F. & F. 202.

(6)        Cleary v. Booth (1893) 1 Q.B. 465.

(7)        Mansell  v. Griffin (1908) 1 K.B. 160.

(8)        R. v. Newport (Salop) Justices v. Ex parte Wright (1929) 2 K.B. 416.

 

Hawari for the appellant.

Miriam. Ben-Porat, Deputy State Attorney, for the respondent.

 

CHESHIN J. The appellant, a Greek Catholic nun, was an inspector and supervisor in the orphanage "Wassfiya" in Nazareth, of which Monsignor George Hakim is the head. In the middle of 1952 the appellant was charged in the District Court of Haifa on 27 counts, and on December 31, 1952, she was convicted on 6 counts and acquitted on the remaining counts. The offences of which the appellant was convicted are as follows: - two counts of assault under section 250 of the Criminal Code Ordinance, 1936; causing injury under section (241(a) of that Ordinance; failure to notify a death under sections 5(1)(a) and 10(1) of the Public Health Ordinance, 1940; the burial of an infant without the certificate of a licensed medical practitioner under sections 18(1) and 10(2) of that Ordinance; failure to offer foreign currency for sale to the Minister of Finance under regulation 6(1) and 1.0(3) of the Defence (Finance) Regulations, 1941. For the first three offences the appellant was sentenced to an inclusive fine of IL. 150.- or to three months imprisonment in default of payment, and for the three last mentioned offences she was sentenced to pay an inclusive fine of IL. 11.- Apart from these punishments the appellant was ordered to provide personal security in the sum of IL. 500.- to ensure her good behaviour for a period of two years. The appellant appeals before us both against the conviction and the severity of the sentence, while the respondent has filed a cross appeal against the leniency of the sentence.

 

2. In regard to the three charges of assault the learned Judge said :

 

            "I find it proved that in the year 1951, on a date unknown, after the child Samiah Jerees Saker had run away from the institution and had returned thereto, the accused punished her by smacking her face, kicking her in the back, pulling her by the hair, and causing her pain in the lower part of her back.:

           

            I also hold that on June 21, 1952, the accused, after she suspected that Afaf Jad'oun Khalil had torn a dress, smacked Afaf's face, knocked her head against a wall, threw her down to the ground, smacked her on the hands, kicked her on her legs, hit her with a stick and caused a swelling on her head.

           

            The third charge proved is that relating to the child Seleen (Hazna) Jereyis Ibrahim, a girl of eleven. The child stated in evidence that on one occasion in class she was playing with a blade of grass and emitted a sound through it. When the accused heard this she smacked her face twice and thereafter pierced her lower lip several times with a needle she had taken from one of the other children, as a result of which her lip bled.

           

            In argument before us counsel for the appellant did not challenge the findings of the learned Judge. He submitted, however, that the appellant had punished the children as parents punish their children and that she was therefore not liable for what she had done. The question therefore arises whether, and to what extent, a teacher, the director of a school, or an inspector and supervisor in a children's institution is entitled to inflict corporal punishment upon the pupils or children in his care.

           

3. Our Criminal Code provides that "Any person who unlawfully assaults another is guilty of a misdemeanour" (Section 249). That is the rule, and the only exception in regard to this specific offence derives from the definition of "assault". This definition, which is found in section 248, states: "A person who strikes, touches, or moves... the person of another... without his consent ...is said to assault that other person, and the act is called an assault." This language shows that an assault which is committed with the consent of the victim is not a criminal assault since it lacks the elements of the offence as laid down in the Criminal Code. Can it be said that a teacher who indicts corporal punishment upon his pupil is covered by the exception to the rule stated in section 249? And if so, when, how, and on whose behalf is the consent to commit the assault given? It is not easy to give a clear and direct answer to these questions. It may be said that a father, in handing over his child to others to be educated, authorises the teacher to train the child in the way he should go by all the means at the teachers disposal, including the whip and the strap. It may also be said that the father delegates to the teacher his own authority to punish the child by corporal punishment. The question then will be - what is the source of the father's own legal power and authority? Whence does he derive the legal right to strike his son ? It is not disputed that these matters are not dealt with expressly in the written law (save for what is said in regard to a civil claim in section 25(g) of the Civil Wrongs Ordinance). We must rely, therefore, on what has been handed down from generation to generation, on custom which has acquired the force of law. In the absence of a custom such as this we must rely upon the Common Law of England.

           

4. It must be said at once that we are not dealing with the question of a wrongful act and its punishment from an educational point of view, but from the legal point of view alone. In other words, we are not called upon to judge which educational system should be selected by the teacher-whether he will choose the road described by the ancient sage "He that spareth his rod hateth his son; but he that loveth him chasteneth him at times" (Proverbs 13, 94), or whether he will try to achieve his purposes in other ways which do not involve physical punishment and pain. We must ask ourselves which method is permitted and which forbidden by the Criminal Law; which actions are regarded as criminal offences and which actions are not of a criminal nature.

           

            There is no serious dispute between counsel for the parties that a father and a teacher are entitled to punish young children in their care, and even inflict corporal punishment. The only question is one of the degree of punishment and its relationship to the seriousness of the child's bad behaviour. We may refer for this purpose to the Common Law, not only because we are required to do so by Article 46 of the Palestine Order in Council and section 4 of the Criminal Code Ordinance, 1936, but also because these provisions are applicable to this branch of the Criminal Law which, after all, is not confined to our own country.

           

5. The rights and duties of a teacher in respect of pupils in his charge are clear and defined in the Common Law of England. In the judgment in the case of Fitzgerald v. Northcote (4), it was said by Cockburn, C.J. :

 

"A parent when he places his child with a schoolmaster,  delegates to him all his own authority, so far as it is necessary for the welfare of the child."

           

            In an earlier case dealing with the right of a teacher to punish his pupils, Cockburn, C.J. said :

           

"According to the law of England, a parent or a schoolmaster, who for this purpose represents the parent, and has the parental authority delegated to him, may, for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate or excessive in its nature and degree, ...or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life and limb; in all such cases the punishment is excessive, the violence is unlawful..." (R v. Hopley (5), and Russell on Crime, 10th Edition, p. 649).

 

            This judgment of Cockburn C.J. is regarded as the leading authority in English Criminal Law on the subject with which we are now dealing, and the opinion expressed therein has been accepted without reservation by English legal writers. (See Hailsham, Laws of England, vol. 12, p. 140.)

           

            In Cleary v. Booth (6), the Court of Queen's Bench was referred to Hopley's case: (5), and Collins J. said :

           

            ''It is clear law that a father has the right to inflict reasonable personal chastisement on his son. It is equally the law, and it is in accordance with very ancient practice, that he may delegate this right to the schoolmaster. Such a right has always commended itself to the common sense of mankind. It is clear that the relation of master and pupil carries with it the right of reasonable corporal chastisement."

           

            Judgments following those quoted above were given in Mansell v. Griffin (7), and R. v. Newport Justices (8), and also in other cases. These cases established the rule that parents are entitled to inflict corporal punishment upon their children in order to educate them in the correct paths, and to teach them discipline. When parents send their children to o school, they delegate this right to the teachers and principals. Both parents and teachers, however, are obliged to exercise the greatest care. They may only inflict punishments which are humane and reasonable, and they may punish only for the purpose of correcting the child and not to satisfy their own feelings. They may only use an instrument which is not liable to endanger the life of the child, or injure him. If they disregard these rules and exceed the limits which are allowed to them, they are liable to answer for their actions.

           

8. And now from the general to the particular. It is not disputed that for the purposes of the matter before us there is no distinction between a teacher who receives a child from a parent, and a teacher in an orphanage who receives children from the community into his care. The learned judge took proper cognisance of the principles laid down by Cockburn C.J. in Hopley's case (5). He analysed the evidence after paying particular regard to the fact that the prosecution witnesses were very young girls, and after sifting the evidence thoroughly he reached his conclusions. Where doubt existed in his mind whether the evidence was adequate for conviction, and whether a particular punishment inflicted on one of the children of the institution really did exceed the permitted limits, he decided in favour of the appellant. It was only in three cases of the many referred to in the indictment that he found that the punishments exceeded the limits laid down in Hopley's case (5), and in respect of these charges the learned judge convicted the appellant. In these circumstances, and seeing that the learned judge rendered his opinion upon the basis of correct legal considerations, this court will not disturb the conclusions at which he arrived. (See also R. v. Newport Justices (8).)

 

9. Mr. Hawari has argued before us on behalf of the appellant that Nazareth is not like Tel Aviv, and that the customs of the Arabs are not the same as those of the Jews. A young girl who runs away from her home and stays in a strange house - as did Samia Jerees Saker - is regarded by the Arabs, so Mr. Hawari contends, as having stayed from the straight path, and according to the customs of the Arabs it is right, so he argues, that she should be severely punished, even to the extent of being killed. How is it possible, asks Mr. Hawari, to try the parents or teachers of such a girl, who have inflicted upon her a punishment which appears to be too severe by the standards of another people who are less sensitive in matters involving morals and modesty? The reply to Mr. Hawari's complaint is simple and clear : no one seeks to change the ethical standards of the Arabs, or impose upon them ways of life which are contrary to the inheritance of their fathers. In a democratic State such as ours there is no religious compulsion, and each man may live according to his own faith. But a distinction must be drawn between ways of life and the manner in which such ways are imposed upon members of the community. The authorities of the State will not prevent Arab parents or teachers from instructing their daughters and pupils and impressing upon them that they are to remain in their own homes and not go to live in the houses of strangers, nor will it prevent them from giving other similar instructions to their daughters and pupils on how to conduct themselves in life. But the ways and forms of punishment for breach of such instructions, however, are not unlimited. Every one who exceeds the permitted limit, be he father or teacher, Arab or Jew, man or woman - is liable to the same punishment. The choosing of a punishment and the method of its infliction upon a wrongdoer are not matters affecting merely an individual or a number of individuals or a particular section of the community. They affect the State as a whole, the community as a whole. The granting to a parent or a teacher the right to punish a wayward son or an offending pupil for purposes of education must not be interpreted as handing the child into the hands of those responsible for him without any limitations whatsoever, or as an unconditional submission to the manners of a particular community or the customs of a particular race. These matters, moreover, are not new. The question of the extent to which the particular customs of the Arabs may be permitted to influence the criminal element in a particular act has arisen on a number of occasions in the courts of this country (particularly in cases of murder against a background of vendetta and "saving the family honour") and the reply in all such cases has been the same : a man may not take the law into his own hands.

 

            In Miriam v. The Attorney-General (1), for example, Trusted C.J. said : "This Court has never recognised "honour" as in any sense a defence", and in Kataf v. The Attortney-General (2), Fitzgerald C.J. said : "It is of course within the knowledge of this Court that the Arabs place a very high value on sexual morality, and the Court will always give full consideration to the effect of customs and traditions which have been accepted by the people as forming part of their way of life, provided that such customs and traditions are not repugnant to natural justice as conceived by British standards." And in Atiyeh v. The Attorney-General (3), which followed Kataf's case (2), it was said : "It cannot be suggested that the killing of a girl because of the offense which was attributed to this girl (namely, elopement with another man) would not be repugnant to natural justice as conceived by British standards." It is only necessary to substitute the word "Israel" for the word "British" in the two last mentioned judgments in order to apply the principle there laid down to the present case.

           

            To sum up, it is not disputed that the three girls of the orphanage "Wassfiya" deserved to be punished for what they did. This was imperative for the maintenance of discipline in the institution and ensuring compliance with its rules. In regard to the punishment which a teacher may inflict, however, the law draws no distinction between a child who is rich or poor, Jewish or Arab, from the village or from the city. One law applies to them all. Christian children, just as Jewish or Moslem children, are entitled to the protection of the law. It would indeed be a tragedy for the State and its inhabitants if acts of cruelty towards children or adults were to be permitted under the guise of religions or racial customs.

           

            As to the merits of the matter, the question whether the punishment inflicted on the children was too severe - that is to say, whether it exceeded what was permitted in accordance with the principles laid down above - is a question of fact to be decided by the court which tried the case (See R. n. Newport Justices (8).) The learned judge decided to convict the appellant and since it is quite impossible for us to say that the punishments which were inflicted upon the three girls - as they are described in the extract from the judgment of the court below which we have cited - were humane, reasonable, and not inconsistent with the principles of natural justice as prescribed by Israel standards - we do not propose to interfere with his discretion. We therefore reject the arguments relating to the conviction on the three counts of assault.

 

11. We also find no substance in the arguments addressed to us in connection with the three other convictions. We agree with the learned judge that even if the appellant was not a "director" but only a "manager" this is sufficient for the purpose of the two offences under the Public Health Ordinance, 1940, in respect of which she was charged and convicted. We also accept the findings of the learned judge in regard to the last count, namely that dealing with the possession by the appellant of one and a half dinars in contravention of regulation 6(1) of the Defence (Finance) Regulations, 1941. According to the evidence of the appellant this paltry sum remained in her possession as the balance of an amount of five dinars which had been given to her once when she crossed the border to the Old City of Jerusalem. The learned judge believed the appellant and even expressed his surprise that this charge had been included with the other serious charges. However, he convicted the appellant after holding that she was technically guilty since she was not exempt from the obligation of offering even this small amount for sale to the Minister of Finance when she returned from this excursion. We can find no flaw in this conclusion of the learned judge.

 

12. I now wish to add a few words on the question of sentence. As I have said, the appellant was sentenced to a fine in respect of each of the offences which she committed. The acts which she committed in contravention of the Public Health Ordinance and the Defence (Finance) Regulations have no direct connection with her educational work in the institution "Wassfiya" and we see no reason therefore to interfere with the sentence - an inclusive fine of IL. 11.- which was imposed upon her. In dealing, however, with the question of the punishment imposed upon the appellant for the offences which she committed as a teacher and a supervisor of children we cannot altogether disregard her past, her personality, and her deeds in the interests of poor children in general, and the children of "Wassfiya" in particular. The appellant is a nun who has devoted herself to acts of religion and charity since she was a girl of 15. She said in evidence that she did this out of love for the poor. For more than 30 years she has served her community, but not for the sake of reward. When she was still in Syria, the land of her birth, she went about in cities and villages and helped the poor, the sick, and the orphaned. She concerned herself particularly with orphaned children. She collected about her abandoned children who had nothing, she taught them, she gave them food and drink, and she attended to their spiritual needs. It was to this purpose that she devoted the 500 gold sovereigns which she received as an inheritance from her family. She continued her work in this country for the orphanage "Wassfiya" in Nazareth. It is true that her punishments grossly exceeded the permitted limits, but according to her conceptions and her ideas she was acting for the benefit of the children and in order to guide them in the correct path. The children in the institution itself regarded her as their mother, and they used to call her mother. According to the recommendation of the learned judge, the appellant should be removed from all educational contact with children, and we have no intention of interfering with this recommendation on his part. It seems to me, however, that the learned judge did not take into consideration the fact that the fines will not be paid from the pocket of the appellant because she - being a nun - has nothing. It is the orphanage that will pay the fine and the monies of the orphanage are monies devoted to charity. And where would be the justice in punishing the members of the community who support the institution, for the deeds of the appellant?

 

            For these reasons, and in view of the circumstances of the case, I do not think, of course, that the sentence imposed upon the appellant should be increased and that she should be sent to prison, as is asked in the cross appeal. On the contrary, it seems to me that in respect of the offences which were committed by the appellant in her work with the orphans and for their benefit it is sufficient for her to furnish security, as was decided by the learned judge.

           

            ASSAF J. I agree with the judgment of my colleague Cheshin J. and wish to add some points based upon our own sources. General instructions to a father in educating his children are already given in the Book of Proverbs : ''He that spareth his rod, hateth his son; but he that loveth him chasteneth him at times" (Proverbs 13, 24); "Correct thy son, and he shall give thee rest; yea, he shall give delight unto thy soul." (ibid. 99, 17); "Foolishness is bound up in the heart of a child; but the rod of correction shall drive it far from him." (ibid., 22, 15). In later sources, however, we find more specific instructions both to a father and to a teacher who educates his pupil. An instruction was already given by Rav, the first of the sages of the Talmud, to Rabbi Samuel the son of Shilat, one of the great educators of his generation : when you strike a child - strike him with a shoe lace (Bava Batra, page 22a), that is to say, with a light strap. And on the basis of these words of Rav, Maimonides laid down : "And the teacher strikes them in order to frighten them. He does not strike them with the blow of an enemy, with a cruel blow. He may not beat them therefore, with whips or canes, but only with a light strap" (Rules in "Talmud Torah" Ch. 2). The words of Maimonides were accepted as the rule and similar provisions are found in the Shulhan Aruh, Yorei Dea, Art. 245, and in other works of the authorities. So Rabbi Hai Gaon writes in his well-known poem "Morals and Intellect": "And if you have sons and daughters always punish them with mercy and compassion."

 

2. One of the prominent sages of Palestine has given us a clear picture of the custom that prevailed more than two centuries ago :

 

            "There is a very bad custom that when a young child complained to his parents that the teacher had and mother who warn the teacher in front of the child not to beat him, and when the child hears that his teacher has no right to beat him he pays no attention to his lessons and becomes more and more wilful. The custom in former times was otherwise, for when the child complained to his parents that the teacher had struck him they used to hand the child a present which he himself had to take to his teacher; and they themselves used to say to the teacher : We thank you ! You will receive a suitable present every time the child complains that he has been beaten." (Rabbi Moses Chagiz, "Tzoror Ha'Chayim", Wansbeck - 1728).

 

3. Although it is possible to find a great deal of sound comment and good advice on the relationship between a father and his child and between a teacher and his pupil in both the older and more modern works dealing with morals and matters of education, the questions which were asked on this subject in order to procure a legal decision are few indeed. There are therefore few precedents, unlike the position in England where there is a rich legal literature on the subject. It is nevertheless desirable to cite the few responsa that do exist in this field.

 

            I shall first quote a responsum of Rabbi Natronai Gaon Sura (858-858), written in a mixture of Hebrew and Aramaic but which I quote here in its Hebrew translation :

           

            "And as for the teachers of children to whom you have referred, who beat the children often - children certainly never learn unless they are beaten. The words of Rabbi Samuel, the son of Shilat lay down the rule. We are accustomed, therefore, to deal with small children, or with big children if they are weak, in accordance with the direction of Rabbi Samuel. As far as healthy children are concerned frequent punishment is quite permissible. To inflict frequent punishment upon small and weak children, however, is cruel. In such a case, we warn the teacher once, twice or even three times. If his conduct improves, well and good; and if not, we remove him from his post". (L. Ginsberg, Geonica, II, 119).

 

4. It is clear that the Gaon speaks of teachers who beat the children frequently, but who cause them no injury. There is no question here, therefore, of the payment under the five heads : damages, sorrow, medical expenses, loss of employment and insult. There are, however, two responsa of rabbis who lived in the first half of the 18th century which do deal with teachers who injured their pupils, and their attitude on the matter is very different.

 

            The first and the more important of them is Rabbi Jacob Reicher of Prague who served towards the end of his life in the Rabbinate of the community of Metz. In the collection of his responsa "Shevut Yaacov", part III, paragraph 140 we read :

           

            "Is a teacher who became angry with his pupil and, in order that he should become a better pupil, beat him until he injured him, liable or not under the five heads of damage? The answer is that he is five from liability for all damage as appears clearly from the book of "Makkot" in the section dealing with expulsion, page 8A : "As the chopping of wood is an act of free choice (the law of unwitting murder applies) to every act of free choice - this excludes the father that smites his son or the teacher that chastises his pupil or the agent of the Court..." And there is no room for the argument that this exemption applies only to expulsion and not to liability under the four heads of damage become the verse in the Torah speaks only of exemption from expulsion... and although we accept the rule that a child is to be beaten with a shoe lace and not with cruelty, the teacher is not to he fined in any event for an act committed by him in the past... more particularly as it is a source of great pain to teach a pupil who does not pay attention to his lessons... However, I held in my judgment that the teacher should pay the doctor the expenses of administering a good cure, in order to prevent the teacher from becoming accustomed to act as he did, for it is not desirable for a wise man to become angry and for a teacher to be too strict, for anger rests in the bosom of fools."

 

            As appears from the above responsum the case with which it deals is of a teacher who injured a grown-up pupil. Rabbi Gershon Coblenz, one of the Court Assessors of Metz, however, was of the following opinion :

           

            "What is the position of a teacher who beat a small pupil of six or seven years of age until he broke his leg and then wishes to seek exemption from his liability to pay damages under the five heads of damage thinking that a teacher who chastises his pupil is free from liability, and who runs to the passage in "Makkot": "As the chopping of wood is an action of free choice... this excludes the father that smites his son or the teacher that chastiseth his pupil" and that since he is not liable to be expelled he is therefore not liable under the five heads of damaged?  In my opinion that teacher has dived into deep waters and has brought up nothing, for that teacher should be shunned until he makes his peace with the injured pupil... There is no difference in such a case between the teacher and anyone else - and that teacher who beat his pupil excessively can in no way be compared with the teacher who chastises his pupil, and he is liable in damages" (Responsa, Kiryat Hana, Article 22).

 

5. And one of the most distinguished teachers of his generation, who published a special work on methods of teaching and instruction, writes :

 

            "And there is one valuable piece of advice which I give teachers and that is that they should take great care not to strike pupils on the head or on the face, and not to become angry... for this is very likely to be detrimental and unlikely to be beneficial". (Maarechet Avraham, Rabbi Avraham of Ettingen, who was a teacher in the community of the Hague, Fjorda, 1769).

 

            It would seem that this valuable advice never reached the appellant, and it is for this reason that she behaved as she did.

           

            LANDAU J.   I agree that the appeal against the conviction should be dismissed. In regard to the sentence relating to the three counts of assault I agree that the cross appeal should be dismissed, but I have grave doubts whether it is desirable to interfere in this instance with the discretion of the learned judge and reduce the fines (or the periods of imprisonment in default of payment of the fines) imposed upon the appellant. Piercing a lip with a needle until blood fines, kicking the back of a grown girl, knocking a child's head against the wall - these are not means of correction, even under the most severe educational system, but simply acts of cruelty. The learned judge was correct in saying that punishments of this kind did more to satisfy the base instincts of the appellant than to improve the ways of the child. It seems to me, moreover, from the evidence in this case, that Mr. Hawari's allegation that behaviour of this kind is customary among the Arabs of this country is grossly exaggerated.

 

            This is what was said by one of the witnesses for the defence, Qum Mary Khoury, who is also a "mother" and a teacher in a convent in Nazareth :

           

            "When I beat a girl I do so with a strap or piece of wood on her hands... no teacher in the world would pierce a girl's lip because she made a noise in class... I have never heard of a thing like this... I do not smack girls in the face."

           

            Even the appellant herself did not justify her actions in her evidence and argue that she had acted in accordance with ethical, educational methods. Her contention was that the acts alleged had never been committed, that she had not pierced a lip with a needle, that she had not kicked, but that she had administered only smacks and blows, as a mother who beats her daughter. The appellant's good deeds in the past were not disregarded by the learned judge when he came to assess the punishment. The appellant failed grievously and I would confirm the sentence imposed upon her.

           

                Appeal against conviction dismissed. Appeal against sentence upheld in part, and cross appeal of the Attorney-General dismissed.

Judgment given on July 31, 1953.

Full opinion: 
PDF icon Rassi v. Attorney General.pdf

Har-Shefi v. State of Israel

Case/docket number: 
CrimA 3417/99
Date Decided: 
Wednesday, February 21, 2001
Decision Type: 
Appellate
Topics: 
Criminal Law
Conviction
Abstract: 

Facts: The appellant Margalit Har-Shefi was tried before the Magistrate’s Court in Tel-Aviv-Jaffa and convicted of the offense of neglect to prevent a felony (and of another offense, of which she was acquitted).  It was held that although the appellant knew that a man named Yigal Amir was plotting to murder the Prime Minister of Israel, Yitzhak Rabin, she did not take reasonable means to prevent the commission of the felony.  The conviction was appealed to the District Court and the appeal was upheld by a majority of judges.  Leave was given to appeal the District’s Court’s decision.  The appellant appealed the conviction and alternatively the sentence.

 

Held: The appeal of the conviction was dismissed unanimously, and by a majority of opinions, against the dissenting opinion of Justice J. Turkel, the appeal as to the sentence was dismissed.  

Voting Justices: 
Cheshin, Mishael
Primary Author
majority opinion
Turkel, Jacob
Author
concurrence
Rivlin, Eliezer
Author
concurrence
Full text of the opinion: 

CrimA 3417/99

 

Margalit Har-Shefi

 

v.

 

State of Israel,

 

 

The Supreme Court sitting as the Court of Criminal Appeal

[21 February 2001]

Before Justice M. Cheshin, J. Turkel, E. Rivlin

 

Appeal on the judgment of the Tel-Aviv–Jaffa District Court (Justice S. Rotlevy) dated 3 June 1998 in CrimC 511/95.

Appeal by leave on the judgment of the District Court in Tel-Aviv-Jaffa (Justices D. Berliner, A. Bayzer, Z. Hammer) dated 25 April 1999 in CrimA 4253/98 in which the appeal on the judgment of the Magistrate’s Court in Tel-Aviv-Jaffa (Justice N. Lidski) from 14 June 1998 in CrimC 1135/97 was dismissed.

 

Facts: The appellant Margalit Har-Shefi was tried before the Magistrate’s Court in Tel-Aviv-Jaffa and convicted of the offense of neglect to prevent a felony (and of another offense, of which she was acquitted).  It was held that although the appellant knew that a man named Yigal Amir was plotting to murder the Prime Minister of Israel, Yitzhak Rabin, she did not take reasonable means to prevent the commission of the felony.  The conviction was appealed to the District Court and the appeal was upheld by a majority of judges.  Leave was given to appeal the District’s Court’s decision.  The appellant appealed the conviction and alternatively the sentence.

 

Held: The appeal of the conviction was dismissed unanimously, and by a majority of opinions, against the dissenting opinion of Justice J. Turkel, the appeal as to the sentence was dismissed. 

 

Basic laws cited:

Basic Law: Human Dignity and Liberty, ss. 3, 8, 10.

 

Legislation cited:

Penal Law 5737-1977 ss. 18, 19, 20, 20(a), 20(c), 20(c)(1), 24, 34V(a), 90A, 90A(3), 95, 95(a), 262, 300(a)(2), 322, 362, chapter 5, chapter B.

Penal Law Ordinance, 1936, s. 33.

Mandatory Education Law, 5719-1949, s. 4(b).

Though Shalt Not Stand Idly by the Blood of Another  Law 5758-1998, s. 1(a).

Penal Law (Amendment no. 39) (Introductory Part and General Part) 5754-1994.

Penal Law (Amendment no. 43) (Adapting the Penal Laws to the Introductory Part and General Part) 5755-1995.

Interpretation Law 5751-1981, s. 1.

Torts Ordinance [New Version]

Evidence Ordinance [New Version] 5731-1971, s. 10A.

Unjust Enrichment Law 5739-1979.

 

 

Draft Law cited:

Draft Penal Law (Amendment no. 47) (Though Shalt Not Stand Idly by the Blood of Another) 5755-1995.

 

Israeli Supreme Court cases cited:

[1]      CrimA 496/73 Ploni v. State of Israel, IsrSC 28(1) 714.

[2]      CrimA 517/66 Abu Kadra v. Attorney General, IsrSC 21(1) 246.

[3]      CrimA 312/73 Mazrava v. State of Israel, IsrSC 28(2) 805.

[4]      HCJ 164/97 Kontram Ltd. v. Treasury Ministry, Customs and V.A.T. Department, IsrSC 52(1) 289.

[5]      FHCrimA 2974/99 Ohana v. State of Israel, (unreported).

[6]      CrimA 450/86 Gila v. State of Israel, IsrSC 40(4) 826.

[7]      CrimA 136/51 Frankel v. Attorney General, IsrSC 5 1602.

[8]      CrimA 89/78 Affenger v. State of Israel, IsrSC 33(3) 141.

[9]      CrimA 2831/95 Elba v. State of Israel, IsrSC 50(5) 221.

[10]    CA 3666/90 Zukim Hotel Ltd. v. Municipality of Netanyah, IsrSC 46(4) 45.

[11]    CA 804/80 Sidaar Tanker Corporation v. Eilat Ashkelon Pipeline Company Ltd., IsrSC 39(1) 393.

[12]    CrimA 4675/97 Rehov v. State of Israel, IsrSC 53(4) 337.

[13]    CrimA 205/60 Moskowitz v. State of Israel, IsrSC 14 2455.

[14]    CrimA 307/75 Tvik v. State of Israel, IsrSC (unreported).

[15]    CrimA 461/92 Zakai v. State of Israel, IsrSC 47(2) 580.

[16]    CrimA 728/84 Hermon v. State of Israel, IsrSC 41(3) 617.

[17]    CrimA 437/82 Abu v. State of Israel, IsrSC 37(2) 85.

[18]    CrimA 277/81 Halevi v. State of Israel, IsrSC 38(2) 369.

[19]    CrimA 307/73 Sultan v. State of Israel, IsrSC 28(2) 794.

[20]    CrimA 307/73 Dasuki v. State of Israel, IsrSC 28(2) 802.

[21]    HCJ 243/62 Filming Studios in Israel Ltd. v. Gary, IsrSC 17 2407.

[22]    CrimA 347/88 Demajnuk v. State of Israel, IsrSC 47(4) 221.

 

Israeli Magistrate Court cases cited:

[23]    CrimMot (TA) 1135/97 State of Israel v. Har-Shefi PM 1997(4) 354.

 

English cases cited:

[24]    Sykes v. Director of Public Prosecutions [1961] 3 All E.R. 33 (H.L.).

[25]    Edgington v. Fitzmaurice (1885) 29 Ch. 459.

 

Israeli books cited:

[26]    S.Z. Feller, Foundations in Penal Laws (Vol. A 1984) (Vol. B 1992).

[27]    I. Levi, A. Lederman Fundamentals in Criminal Liability (1981).

[28]    M. Cheshin, ‘Sources for Tort Law in Israel’, Tort Laws—General Tort Jurisprudence (G. Tedeschi, ed. 2nd edition, 1977) 33.

[29]    A. Rubinstein, Enforcing Morality in a Permissive Society (1975).

[30]    H.H. Cohen, the Law (2nd Edition, 1997)

[31]    A. Parush, Legal Determinations and Moral Considerations (1986).

[32]    E. Harnon, Laws of Evidence (Vol. A. 1970).

[33]    J. Kedmi, On Evidence (Vol. B, 1991).

 

Israeli articles cited:

[34]    M. Gur-Aryeh, ‘The Legal Duty to Prevent a Felony—When is it Justified’ (to be published in Mehkarei Mishpat).

[35]    M. Kremnitzer, R. Segev, ‘Omission in Criminal Law’, Tamir Book (I. Tamir, A. Hirsch eds. 1960) 197.

[36]    I. Kugler, ‘As to the Requirement of Awareness as to the Circumstances in the new General Part of the Penal Law’ Plilim 5 (1996-1997) 149.

[37]    R. Kanai, ‘Is it Indeed one Law for those who Suspect and those who Know?’ Mehkarei Mishpat 12 (1995-1996) 274.

[38]    R. Gavison, ‘Enforcement of Morality and the Status of the Principle of Liberty’, Iyun 27 (1976-1977) 274.

[39]    A. Parush ‘The Law as a Tool for Enforcing Morality’ Iyun 26 (1975) 146.

[40]    A. Gross ‘In the Margins of the Case Law—the Demajnuk Judgment and the Pursuit of Truth’ Plilim 4 (1994) 299.

[41]    A. Gross, M. Orkavi, ‘Beyond a Reasonable Doubt’ Kiryat Hamishpat (1991) 229.

 

Foreign books cited:

[42]    G. Williams Criminal Law (London, 2nd ed., 1961).

 

Foreign articles cited:

[43]    S.J. Heyman ‘Foundations of the Duty to Rescue’ 47 Vand. L. Rev. (1994) 673.

 

Jewish law sources cited:

[44]    Kings II, 25, verses 22, 25.

[45]    Jeremiah, 41, 1-2; 18, 18.

[46]    Zachariah, 7, 5; 8, verses 14-15, 19

[47]    Shabbat, 31A.

[48]    Leviticus 19, 18.

[49]    Deuteronomy 19, 19.

[50]    Psalms, 31, 14; 37, 12; 105, 9.

[51]    Samuel I, 17, 7.

[52]    Mishlei, 19, 21.

[53]    Amos, 5, 19.

[54]    Sanhedrin, 66A.

[55]    Baba Kama, 55B; 56A.

[56]    M. Zilberg, So is the Way of the Talmud (2nd Edition, 1964).

 

For the appellant — Jacob Weinroth

For the respondent — Penina Guy Senior Appointee in the District Attorney’s Office Tel-Aviv District (Criminal); Gali Hazav, Assistant to the District Attorney Tel-Aviv District (Criminal).

 

 

JUDGMENT

 

 

Justice M. Cheshin

On the night between the 11th and the 12th of MarCheshvan 5756, 4 November 1995, on Saturday night, soon after sunset, Yitzhak Rabin, the Prime Minister of Israel was assassinated.

For two thousand years there has not been such a vile act among the People of Israel.  Over two thousand five hundred years ago, Gedaliah the son of Ahikam the son of Shafan, the man whom Nebuchadnezzar the King of Babel appointed to be governor of Judea after Jerusalem was conquered and the Temple was burnt, was murdered:

And the people who were left in the Land of Judah which Nebuchadnezzar, the King of Babel left and he put Gedaliah son of Ahikam son of Shafan over them. . .

And it was in the seventh month Ishmael son of Nethaniah son of Elishama from the lineage of kings came and ten men with him and they struck Gedaliah and he died as well as the Jews and the Kasdim who were with him in the Mitzpah.

So reports the book of Kings (Kings II, 25, verses 22, 25 [44]) and so reports Jeremiah (Jeremiah, 41, 1-2 [45]).  Israel’s Sages established the third day of the month of Tishrei—the first non-holy-day at the start of each year—as a day of fasting over the murder of Gedaliah.  ‘The fast of Gedaliah’ is the name today—in the past it was called ‘the Fast of the Seventh’ (Zachariah, 7, 5; 8, 19 [46])—observant Jews do not eat or drink on this day.  Gedaliah was murdered over two thousand five hundred years ago; the people of Israel remember him—and observant Jews fast in his memory—every year.  Gedaliah was merely appointed over the remnant of the nation on behalf of Nebuchadnezzar the King of Babel.  Yitzhak Rabin was chosen by the people.

2.  Our matter deals with the days before the rupture, in the days when the majority of the nation could not imagine that a Jew in the land of Israel would harbor a malicious thought—a deranged thought—to raise a hand on the Prime Minister to murder him just for leading a nation and country in a manner that does not appeal to the murderer.  The days of innocence and naiveté have passed, and we—all of us—think differently than we thought before that terrible night.  However, as to our matter, we must enter a time machine, and take ourselves back to the days before that night, as only in this way will we be able to assess and judge thoughts and actions correctly.

Work Plan

3.  And this will be the work plan in the following opinion: first we will describe as briefly as possible the proceedings which have taken place until now and the arguments which were raised before us in the appeal (both orally and in writing).  After that we will move on to a detailed analysis of the law.  Then we will discuss in (relative) detail the facts of the matter; we will apply the law to the facts, and we will address the claims that were brought before us.  We will therefore open with a short description of the proceeding up until this point.

Key elements of the proceedings that have taken place until now

4.  The appeal before us revolves around an offense called neglect to prevent a felony, which is an offense as defined in section 262 of the Penal Law, 5737-1977 (hereinafter we will call this law—’the Penal Law’ or ‘the Law’).  The offense deals with a person who knows that a certain person is plotting to commit a felony and does not take all reasonable means to prevent the commission or completion of that felony.  The punishment for such an offense is two years.

5.  The appellant before us, Margalit Har-Shefi (hereinafter we will call her—’the Appellant’), was tried before the Magistrate’s Court in Tel-Aviv-Jaffa for the offense of neglect to prevent a felony (and for another offense, of which she was acquitted).  In the words of the indictment, the appellant knew that a man named Yigal Amir (hereinafter we will call him: ‘Amir’ or ‘Yigal Amir’) was plotting to murder the Prime Minister of Israel, Yitzhak Rabin, and despite this did not take reasonable means to prevent the commission of the felony.  We all know that Amir carried out his plot, and we will never know if the heinous act would have been prevented had his vile intention been reported to the police.  But we will not occupy ourselves with that.  Our matter now is the events that occurred prior to the murder, and we will caution ourselves again and again not to confuse knowledge before the fact—that same knowledge that the prosecution sought and asks to attribute to the appellant—with wisdom after the fact.

6.  The Magistrate’s Court—by Justice N. Lidski—convicted the appellant and sentenced her to a prison term of twenty four months, of which nine months were to be served in fact and the remainder on probation.  See CrimMot (TA) 1135/97 State of Israel v. Har-Shefi [23].

An appeal was filed on the conviction and on the sentence, and the District Court—by a majority vote—dismissed it.  Justice A. Bayzer and Z. Hammer—for the majority – held that the conviction and the sentence are to be left standing, while Justice D. Berliner—in a minority view—was of the view that the Appellant should be acquitted based on the benefit of the doubt.  Leave to appeal was sought on this decision, and when leave was granted the appeal before us was filed: an appeal of the conviction and alternatively, appeal of the sentence.

Fundamentals of the decisions

7.  All agree that Yigal Amir plotted to murder the Prime Minister Yitzhak Rabin.  There is also no debate that the Appellant did not take any reasonable means to prevent Yigal Amir from committing the act of murder he plotted.  The primary debate between the parties revolved around the question whether the Appellant knew about Amir’s vile thought, or not; in other words, did she come within the framework of the provision of section 262 of the Penal Law which refers to ‘one who knows that a certain person is plotting to commit a felony...’ (Emphasis mine—M. C.).  Since if the Appellant knew of Amir’s malicious planning—she is to be convicted, and if she did not know—she is to be acquitted.

8.  Justice Lidski wrote in her judgment that knowledge is an internal matter, and knowledge – like intent—can be deduced from a person’s behavior.  The Appellant, added Justice Lidski, clearly knew of Amir’s plot to murder Yitzhak Rabin, and she based this determination on the cumulative weight of these twelve elements: (1) the Appellant knew about Amir’s extreme views; she knew that he viewed Yitzhak Rabin as a traitor for whom the law of Rodef applies and knew that in Amir’s view he should be killed; (2) the Appellant knew of Amir’s desire to establish an underground for defense of Jewish settlements for when the IDF pulls out of the territories, and his desire to accumulate weapons for this purpose; (3) the Appellant knew of the organizational skills which Amir was blessed with; (4) the Appellant knew of Amir’s determination; (5) the Appellant knew that Amir regularly carried a handgun on his person; (6) the Appellant knew from Amir that at a certain time he sought to kill Yitzhak Rabin at Yad Vashem; (7) the Appellant knew from Amir that he sought to kill Yitzhak Rabin at the Kfar Shamryahu intersection dedication ceremony; (8) Amir suggested the Appellant conduct surveillance in secular attire as preparation for assassinating Rabin; (9) the Appellant asked Rabbi Aviner if the law of Rodef applies to Yitzhak Rabin, and whether one who says that the law of Rodef applies to him should be turned in to the authorities; (10) the Appellant gave Amir—at his request—information on the location of the weapons depot in Bet-El, her place of residence, and before the identity of the murderer was publicized, the Appellant called Amir, Avishai Raviv and her friend, and said to her friend that she wants to hug Amir; (12) the Appellant was asked in her questioning if she would have called Amir if the murderer was a young man from Jerusalem, and she answered in the affirmative noting that she would have asked Amir how he felt after ‘his work had been done for him’.  As to these twelve elements, Justice Lidski, said (p. 418):

Based on what is said in the twelve paragraphs above, it is possible in my view to draw only one logical conclusion, which passes the test of common sense and is compatible with the facts that were raised and revealed during the course of the trial and it is—that the defendant knew that Yigal Amir was plotting to commit a felony, meaning to murder the Prime Minister Yitzhak Rabin may his memory be a blessing—and I so determine.

9.  The majority justices in the District Court were also of the view—as did the Magistrate’s Court judge—that the accumulation of the various facts and different signs adds up to proof of the knowledge of the Appellant—at a level sufficient for a criminal conviction—as to Amir’s vile plot.  Justice Hammer further added and determined, that the decision of the Magistrate’s Court was founded on findings of credibility, and once it was found that the Magistrate’s Court did not believe the Appellant’s version—who claimed that she did not take Amir’s words seriously—in any event the appeal is to be dismissed.

The minority judge, Justice Berliner, held, as said, that the Appellant is to be acquitted based on the benefit of the doubt.  Justice Berliner in fact accepted most of the determinations of the Magistrate’s Court, but in her view there was an error in the way they were processed; the Magistrate’s Court ignored (among other things) a piece of evidence of decisive significance, namely, the conversation of the Appellant with an individual named Avishai Raviv, a conversation which took place after the murder and at the time that the Appellant was in prison.  Moreover, Justice Berliner was of the view that the Appellant’s closeness to Amir—her closeness and her friendship—necessarily created a distortion in her thought; in the view of the judge, the words of the Appellant are to be accepted that she was of the view that Amir was a ‘braggart and fantasizer’ and that for this reason she did not take his words seriously and did not believe that indeed he was plotting to murder Yitzhak Rabin.  Justice Berliner further determined that those twelve signs on which Justice Lidski based the conclusion that the Appellant knew of the murder plot, are signs which are open to various interpretations, and in any event a conclusion is not to be based on them.  Justice Berliner constructed her conclusion from all this that the Appellant is to be acquitted based on the benefit of the doubt.

10.  The Appellant’s primary argument is that she did not know of Amir’s vile plot to murder the Prime Minister, as she did not take his words seriously; according to her version, she was of the view that Amir’s words as to his intention to murder the Prime Minister were said by way of banter, supposedly to taunt her and tease her.  She saw him as ‘Macho’ and a ‘fantasizer’, and did not believe that he seriously intended to carry out what he said.  So claimed the Appellant—consistently—since she was arrested, and this was expressed in her conversation with Avishai Raviv, a conversation which was taped without her knowledge while she was in prison.  The Appellant further claims that her ties of friendship with Amir distorted in her mind the reality and the manner in which she perceived and understood his words.  If she had only known that Amir is one of those that practice what they preach, then she would have turned him in to the authorities, and she told him as much.  The Appellant’s counsel also raised before us many additional arguments—for interpreting and explaining the episode—and we will address the fundamentals of these below.

On the other hand the State claims that the lower courts properly and justly convicted the Appellant in the manner that she was convicted.  The Appellant knew well Amir’s intention and plan to murder Yitzhak Rabin, and when he told her the things he said she took his words seriously.  If this is so in general, it was true all the more so when she heard from Amir as to his specific attempts to murder the Prime Minister, when she knew he carried a handgun.  These facts and additional facts that were proven, lead to the unambiguous conclusion —that the Appellant knew of Amir’s vile plot.  As to all this: the Magistrate’s Court—which is the court that saw and heard the Appellant – did not believe  her words that she interpreted Amir’s words as boasting, and the appeals court is not to substitute its discretion for the discretion of the court that conducted the hearing as to these findings of credibility.

11.  We must resolve these differences of opinion, and we will do what is required of us.  However, before we have laid out the facts and analyzed them, let us address the law and do our best to interpret it and understand it.

The offense of non-prevention of a felony—general discussion

12.  This opinion revolves around an offense called ‘neglect to prevent a felony’ and we are bound to conclude and decide whether the Appellant before us, Margalit Har-Shefi, has committed this crime or not.  Further in our decision we will discuss this offense in detail, but until we do so we will say that laid and spread out before us is an article written by Professor M. Gur Aryeh titled ‘The Legal Duty to Prevent a Felony—When is it Justified’ [34].  This article is soon to be published in the periodical Mehkarei Mishpat of Bar-Ilan University, and Professor Gur Aryeh has kindly agreed to our request and made it available to us to read (parts of the article were presented as a lecture in honor of Professor Aharon Anker, in a conference that was dedicated to criminal law).  In our opinion below we will rely more than once on things that Professor Gur Aryeh teaches us in this comprehensive and in-depth article, and in this way we can also be brief rather than lengthy.

13.  And this is the language of the provision of section 262 of the Penal Law, which deals with the offense of neglect to prevent a felony:

Neglect to prevent a felony

262

One who knowing that a person designs to commit a felony, fails to use all reasonable means to prevent the commission or completion thereof, will be sentenced to—two years imprisonment.

This provision is a (binding) translation of section 33 of the Penal Law Ordinance, 1936, which provided as follows:

Neglect to prevent certain offences

33

Every person who, knowing that a person designs to commit a felony, fails to use all reasonable means to prevent the commission or completion thereof, is guilty of a misdemeanour and is liable to imprisonment for two years.

This offense of neglect to prevent a felony is a unique and special offense.  Consistent with its uniqueness are the many discussions regarding it widen and not a small amount of criticism has accumulated around it; see the article of Professor Gur Aryeh [34].  Withal, we must remember, that a judge unlike an academic—is like the creature of the field tied at the navel to the ground of the law.  Unlike the academic who spreads his wings and soars high and to far distances, we judges have subordinated ourselves to the word of the law, which is what guides us on the path.  Even if the word of the legislator makes our job harder, still ‘... as long as the legislator has not erased this section [the section of the offense of neglect to prevent a felony—M.C.] from the law books it is our duty to interpret it in a straightforward manner and ensure the implementation of the law’: Justice I. Kahan in CrimA 496/73 Ploni v. State of Israel [1] at p. 721.

We will further mention that the offense of neglect to prevent a felony has one bad sister and that is the offense called ‘covering up an offense’, an offense as per the provision of section 95 of the Penal Law.  And as per the text of section 95(a):  ‘one who knows that a certain person plots to commit an offense or committed an offense according to this chapter for which the sentence is imprisonment of fifteen years or a more severe sentence, and did not act reasonably to prevent its commission, completion or outcomes, all according to the matter, his sentence is—seven years imprisonment’.  This offense is similar to the offense of neglect to prevent a felony and at the same time they are not similar, however, in our opinion we will deal neither with the similarity nor with the difference, which is not our issue now.  See further: CrimA 517/66 Abu Kadra v. Attorney General (the Abu Kadra case [2]); CrimA 312/73 Mazrava v. State of Israel [3]; Gur Aryeh in her article above [34], part III, section 1.

14.  The neglect to prevent a felony offense is unlike other offenses, and its uniqueness is in its being a crime of omission.   A person who knows that a certain person is plotting to commit a felony, the law imposes on him the burden to adopt all reasonable means to prevent the commission or completion of the act, and if he refrains and does not remove this burden of himself—does not take all reasonable means etc.—he will be criminally liable.  Let us give thought to the fact that the offense revolves around only prevention of a felony, meaning the prevention of severe offenses and not the prevention of lesser offenses.  We further learn that the subject of the offense is the prevention of the commission of a felony, and not in reporting the felony that was committed.  The law places a burden on a person to adopt all reasonable means to prevent the commission of a felony, and it is superfluous to say that the most common and reasonable means will be—generally—reporting to the security forces who are in charge of maintaining public law and order.  The central core of the offense is the element of knowledge (‘one who knowing that’), and that is the foundation on which the duty to act is built.  In our words below we will deal to no small degree with this element in the offense.

15.  Criminal offenses generally, are offenses which revolve around an action; the prohibition of criminal law is a prohibition of thou shalt not do—though shalt not murder, thought shalt not steal, thou shalt not provide false witness against another—and one who does what is prohibited for him is liable in criminal law.  Unlike offenses which revolve around an action, crimes of omission revolve around an omission to act – as their name implies – not fulfilling a duty imposed by law.  These crimes of omission are few and unique, and each one is different.  As to these offenses—these and crimes of commission – I stated in HCJ 164/97 Kontram  Ltd. v. Treasury Ministry, Customs and V.A.T. Department (the Kontram  case [4]) at p. 366:

The key element of duties imposed on the individual in law are duties of thou shalt not do–thou shalt not murder, thought shalt not steal—and this is the minimal level required for the existence of a civilized society.  At times the individual is obligated to legal duties of ‘thou shalt do’; however these duties are established explicitly in the law, and they are few, for example: the duty to serve in the army; the duty to pay taxes... the duty to prevent a felony (section 262 of the Penal Law-5737-1977) and more.

And thus in the continuation (at p. 371-371):

The criminal codex, for example is full and replete with negative duties, these are negative duties which are explicitly imposed in the law (be their text what it may be) and they are the minimum duties that make a society humane.  These duties can limit the freedom of the individual that same freedom with which we began our journey.  Alongside the negative duties lie the affirmative duties which the law imposes on the individual, an example of an affirmative duty is for example the duty to serve in the army and the duty to pay taxes.  An additional example is to be found in the duties of parents to their children and the duties imposed on certain individuals as to wards and helpless individuals.  It is unnecessary to state—and everyone knows this—that the affirmative duties are fewer in number than the negative duties.  And this is so for a reason.  If we give the matter thought, the negative duties encumber the individual—in principle—less than affirmative duties, meaning: the negative duties slide over into the area of individual freedom less than affirmative duties.  In other words; in the spirit of liberal democracy and individual rights—and even otherwise—it is easier to impose on the individual negative duties than affirmative duties.  We learn from here, that before we come to impose an affirmative duty on the individual we must weigh again and again in our minds whether we have gone too far in our decision, and whether we have deviated beyond the proper and permitted according to the basic views accepted in our society.

Negative duties—those whose violation brings on a criminal sanction—are meant to be the minimum duties for shared living in a civilized society.  And as the elder Hillel said ‘what you detest do not do to your friend’ (Shabbat, 31A [47])—what you detest do not do to your friend.  See further the Kontram case [4], ibid at pp. 359-360.  These are not like the affirmative duties—those duties whose violation brings on penal sanction—for the establishment of an affirmative duty in penal law there must be a special reason, a particularly powerful reason, which supports it and reinforces it; each duty and its reason.  Indeed, for the reason that a crime of omission —the same legal provision which directs and orders that a certain action be taken, that if the action is not taken that person upon whom the burden of doing has been imposed and he did not do will be punished—violates individual freedom more than the prohibition on taking action, for this very reason a substantive and particularly important reason is required for the imposition of a duty in penal law.  For the very same reason the law does its best to minimize crimes of omission.  See and compare: Professor M. Kremnitzer, R. Segev ‘Omission in Criminal Law’, [35]; S.Z. Feller, Foundations in Penal Laws (Vol. A) [26] at pp. 396-398; (Vol. C) [26] at p. 168; I. Levi, A. Lederman Fundamentals in Criminal Liability [27] at pp. 160-161.

At times we will have no difficulty in explaining and fortifying a specific crime of omission.  Thus for example is the crime of omission of a parent to supply food and vital life necessities to his small child, an offense as per the provision of section 362 of the Penal law (‘Neglect of Children and other Wards’).  Such is the crime of omission to provide the life necessities of a helpless individual in the hands of one who is responsible for that helpless individual (section 322 of the law).  Such is the omission of parent to care for the education of their son (section 4(b) of the Mandatory Education Law 5709-1949).

16.  The logic of an offense that deals with neglect to prevent a felony is self-derived.  The role of the police is to protect public safety and security, and this includes preventing the commission of crimes.  However, the police are not all-knowing—it is not present at every moment at each and every location—and naturally it does not have the power to prevent the commission of felonies that it does not know about in advance.  Instead the individual is asked to help the security forces prevent the commission of felonies, if he only knows of a certain person who is designing a plot to commit a felony.  What is required of the individual is not much, mostly providing information to the police, even if only in a phone call.  Indeed, with (ostensibly) minimal effort the individual can prevent harm—occasionally very severe harm—to the individual and to society, harm whose measure is far greater than the effort that he is being asked to expend.  Some see this duty of the individual—and similar duties—as derived of the social contract of shared life in society, however, we need not deal with this at length.  See S.J. Heyman ‘Foundations of the Duty to Rescue’ [43].

17.  Whereas crimes of omission generally raise difficulties, there are additional unique and special difficulties for offenses of non-prevention of crime.  And we are not now speaking of interpretive difficulties—these are difficulties which await anyone required to interpret  any penal offense—but to the general social circumstances which can justify the existence of the offense in the law books or the need to erase it from the law books.  Indeed, there are few offenses which raise difficulties and emotional resistance to their very existence as does this unique and special offense of neglect to prevent a felony.  It is no surprise therefore that the difficulty that the offense raises has brought about its non-recognition—in its Israeli formulation—in the United States and England.  See said article of Professor Gur-Aryeh [34].  See also Sykes v. Director of Public Prosecutions (1961) [24].  And indeed, it is difficult to ignore the uniqueness of the offense, a uniqueness which also makes it unique among its colleagues, the other crimes of omission.

18.  As we have said, the offense of neglect to prevent a felony imposes a burden on the individual to take all reasonable means to prevent the commission or completion of a felony that a certain person is plotting to commit.  A reasonable measure will generally be reporting to the police on things that the reporter knows about.  And if the person refrains and does not report—he will be accused of an offense.  This burden is not a light one.  Thus, for example, it may be that Reuven hears from his close friend—or family member—that this friend or this family member is planning to commit a felony.  It will not be easy for us to impose on Reuven a duty to report to the police—such that if he does not meet the burden he will be criminally indicted—as we all sense the tension that we are causing in his heart, a tension between personal loyalty and loyalty to the law.

Moreover, one who knows that a friend or family member is plotting to commit a felony will have difficulty digesting the knowledge, and against this backdrop it is possible that an emotional barrier will arise within him which will prevent the formation of such ‘knowledge’.  As though a defense mechanism will operate within a person—a mechanism of self deception—and this mechanism will push the ‘knowledge’ out of consciousness.  This is so within a person’s head.

So too, as well, in the relationship of the person to the outside world.  Provision of information to the police as to a certain person who plots to commit a felony may be accepted in certain circles or in certain circumstances as an act of informing, and the stigma of the informant—who strikes with his tongue, as in the words of Jeremiah (18, 18 [45])—may attach to one who reports to the police things that came to his knowledge.  It is not for no reason that observant Jews raise their eyes to G-d, and ask of him daily, three times a day, ‘and the informants shall have no hope’.  Justice H. Cohn said in the Ploni case [1] (Ibid, at p. 718):

The people of Israel has ever and always hated informers like no others; and if this hatred grew against the background of life in exile, then also the Israeli sovereignty which we have been granted with the establishment of the State does not detract much from the aversion to those who hand over and informants to which we have become accustomed while we were still scattered among the nations.  And as to this aversion we are not unique: It is the lot of all the nations of culture which believe in human dignity and liberty; only under totalitarian regimes, such as in Nazi Germany and Soviet Russia, was the duty of informing raised to the level of a civil and legal duty which is superior to all human relationships.

In addition, sometimes a person will hesitate to report to the police as to the planning of a felony, lest he be harmed when it becomes known, and in particular when the circle of those who know of the planning, is a very limited group.  And moreover, the natural tendency of an ordinary person is to pull back and distance himself from all that is related to criminal offenses, if only in order not to entangle himself in the affairs of others.  The imposing of a duty on the individual in circumstances such as these—the duty of reporting to the police—harms the liberty of man.  If all this is not enough, providing information to the authority is liable to create an atmosphere of suspicion and further to cause estrangement among relatives and friends.  Additional reasons have been raised which were intended to trim the wings of the offense, but we will not discuss this at length.  As to these factors—and additional factors, psychological factors and others—which are relevant to determining the proper scope of the offense, Professor Gur Aryeh has discussed at length, and one who wishes to read it should do so, open his mind, and become wiser.

The criticism that was expressed against the offense of neglect to prevent a felony was met with counter-criticism—criticism no less sharp than the original criticism itself—from those who support the existence of the offense and those who find justification for it in today’s society.  For example Justice I. Kahan has said in the Ploni case [1] in answering the criticism of H. Cohn (ibid, at p. 721):

My esteemed colleague, Justice H. Cohn, has expressed in vigorous terms his critical attitude as to the provisions of said section 33.  Even were I to share this approach, this would not be sufficient to change the result which should be reached in my view as to the appeal of the conviction, as long as the legislator did not erase this section from the law books, it is our duty to interpret it according to its plain meaning and to ensure the implementation of the statute… For myself I am not of the view that section 33 is an untouchable abomination.  The legislator did not obligate the citizen in this section to provide information on offenses that were already committed but narrowed the duty to offenses that have not been committed yet and only to felonies.  The prevention of severe offenses, that felons plot to commit, is a welcome purpose and intended to protect the public.  It is the public duty of every citizen to contribute in this way to prevention of felonies and establishing a criminal sanction for violating this duty should not be ruled out.  As Justice H. Cohn explained in his decision, this duty and informing have nothing in common, and therefore I see no need to examine whether the aversion toward the informant has a rational basis in a civilized country, which does not discriminate among its citizens.

And these were the words of Justice Asher (ibid, at p. 722):

It is known to all that we have been ‘blessed’ with a wave of severe crimes, even more severe than those described by Sir Allen, and organized crime is also discussed in our newspapers.  If we add to this the special security situation of our country and the activities of terrorist organizations that do not recoil from spectacular crimes whose like has yet to be seen in this world, then it will be clear that we cannot surrender any possible means of defense in the face of the dangers which lurk for the public living in this country, and the provisions of section 33 [section 262 of the Penal Law-M.C.] are included in this... The purpose of this section is the prevention of felonies, a purpose that the courts are not entitled to dismiss or ignore.  I do not believe that we would do well if we try to reduce its effectiveness by interpreting ‘by way of minimization and scrutiny’ as per the suggestion of my esteemed colleague the head of the panel.

And so said Professor Feller in said book (Vol. A) [26] at p. 398:  In this provision in section 262 of the Penal Law ‘the society imposed on the individual the duty to work toward the prevention of commission of felonies…’

We will further add that the trend to speak favorably about the existence of the offense of neglect to prevent a felony enjoyed a certain boost from the legislation of the Thou Shalt not Stand Idly by the Blood of Another1998.  This law turns the acts of ‘the good Samaritan’—acts of extending help to people in need—to acts which are required by law, acts which if not carried out under appropriate circumstances, a sanction is imposed on the one who refrains and does not act.  It may one day be established that the violation of the duty to save a person or offer him help in circumstances established by law will come within the tort of breach of statutory duty.  See further: the article of Gur-Aryeh supra [34]; the words of President Barak in FHCrimA 2974/99 Ohana v. State of Israel [5].

19.  After reading all we have read, we can say this in our matter:  be the objections which were raised against the existence of the offense of neglect to prevent a felony what they may be, and even if we accept those objections (and we have not said so one way or another), all of the things that were written and expressed, do not outweigh the proper and justified burden that the law imposes on the individual—if only he knows something—to report to the police that a certain person is plotting to murder a person.  Indeed, even Justice H. Cohn, who did not spare his words as to the offense of neglect to prevent a felony (see his words in the Ploni case [1], supra) also explained the duty of do not stand idly by the blood of another (Leviticus 19, 18 [48]), and he stated as follows in the Ploni case [1] (ibid, at p. 719):

… the Israeli legislator saw fit to leave section 33 [today: section 262 of the Penal Law-M.C.] in force… Perhaps he intended, unknowingly, to fulfill the commandment written in the Torah: ‘do not stand idly by the blood of another’ (Leviticus 19, 18 [48]).  Among the examples that the Sages of the Talmud gave for the applicability of this prohibition, we have found that when you see robbers approaching your friend, you must save him from their hands (Sanhedrin 63A; and see Maimonides, Law of a Murder and Protecting Life, A, 14).  So too according to the law of the Torah a person must take reasonable means to prevent the danger of  a crime—and the proof is that even when life is endangered you are not permitted to save the endangered person by killing his pursuer unless you cannot save him by another means (Maimonides, ibid , 13).

And further on (ibid):

When there is an immediate and real danger to national security, for example when contact is established between the agents of the enemy and a certain person who gives them secret information… or when there is real and present danger to the life of a person in that one who hates him with all his heart sets out to kill him, then no fastidiousness and delicacy can stand up against the need for an act of rescue.

20.  A word on modes of interpretation: Justice H. Cohn announced to us in the Ploni case [1] (ibid, at p. 719), that ‘section 33 [meaning the offense of neglect to prevent a felony—M.C.] is to interpreted by way of minimization and scrutiny, in order not to create an opening for a duty to inform from which the scent of totalitarian oppression wafts…’.  Justice I. Kahan and Asher objected to this interpretive rule and we have brought their words above (see paragraph 18).  In CrimA 450/86 Gila v. State of Israel the Gila case [6]) Justice D. Levin expressed something of an intermediate stance and in responding to the argument that the offense in our matter is to be interpreted in a narrow manner, wrote the following words (at p. 832): ‘… I will say, to the extent necessary for our matter, that this section [the offense section—M.C.] is valid and effective, and is to implemented in the proper case, and even when one seeks to give the section a narrow interpretation, and there is reason to do so, the interpretation does not and cannot be narrow, to the point where it is not possible for a logical and reasonable conclusion to pass through it.’  For myself I would say that it is proper for us to do our best to interpret the statutory provision in a reasonable and appropriate manner, giving thought to its general and particular purpose.  In this we have not said much, but it appears that we can make do with these words and we need not add more.

On the elements of the offense of neglect to prevent a felony

21.  There are several components to the definition of the offense of neglect to prevent a felony, and they are as follows:  one, a person who knows; two; that a person is plotting; three, to commit a felony; four, and does not undertake reasonable means to prevent the commission of the act or its completion (see further the Gila case supra [6] at p. 831).  If all four of these come together in one place, the offense of neglect to prevent a felony is completed.  For our matter, as we shall see in detail below, a debate surrounds the first two components.  Further on we will discuss the four components, but we will examine at length the first two of them.  We will open with the second component in the circle, which is the element of plotting: ‘one who knows that a certain person is plotting to commit a felony…’  (Emphasis mine—M.C).

The plotter must commit a felony

22.  The term plotter has its source in the Bible and carries within it at least two meanings: one meaning is—a meaning which has been abandoned in our day and apparently a meaning that also at its source was abandoned: to think and plan, whether to think and plan for good or think and plan for bad: ‘as I plotted to do you ill… so I sat and plotted during these days to benefit Jerusalem and the house of Judah…’ (Zechariah, 8, 14-15 [46]).  The other meaning is, and this is the meaning that has the upper hand: thinking and planning to do evil things, planning plots to commit bad acts, intending to conspire, planning a felony,  as it is written as to a false witness: ‘and do to him as he plotted to do to his brother…’ (Deuteronomy 19, 19 [49])  And further ‘They plotted to take my life’ (Psalms, 31, 14 [50]); ‘the evil person plots against the righteous person…’ (Psalms, 37, 12 [50]); ‘G-d do not give an evil person his desire do not satisfy his plot…’ (Psalms, 140, 9 [50]).

In the context of the provision of section 262 of the Penal Law—’A certain person plots to commit a felony’—there is not a shadow of a doubt that the meaning of ‘one who plots’ is to do ill.  The Magistrate’s Court interpreted the term, for our matter, as ‘conceiving of an evil idea, planning it and intending to implement it’, and the District Court adopted this interpretation.  Justice Berliner emphasized the three components in the definition: conceiving the idea, planning it and intent of implementation, and Justice Hammer emphasized that it is not a matter of just thought—however evil the thought—and in quoting from the dictionary of Ben-Yehudah he further established that it must be ‘… thought to do something… to do ill’.  In their arguments before us the counsel for the parties did not dispute the interpretation of ‘one who plots’, and we too follow those who went before us.  Below we will go on and relate to plotting to do ill in the provision of section 262 of the Penal Law, and break it down into its components.

One who knows (that a certain person plots to commit a felony)

23.  The heart of the offense of neglect to prevent a felony is in the element of knowledge; the knowledge that a certain person is plotting to commit a felony is the spark which creates a link between the person (the defendant) and the planned felony; it is what establishes a duty to act; that is the central element in it.  Reuven ‘knows’ that a certain person is plotting to commit a felony and this ‘knowledge’ is what creates – as though ex nihilo—the burden imposed on Reuven to take reasonable means to prevent the felony or prevent its completion.  Generally, a person will not be liable criminally for a failure to act.  It is as though they say to a person: sit and do nothing—and the criminal law won’t reach you.  Not so here.  Reuven, who receives information— even without paying attention and without realizing— that a certain person is plotting to commit a felony, is prohibited from simply sitting and not doing.  There is a burden imposed on him to act, for if he does not act he will be liable criminally. However, what is the meaning of the expression ‘one who knows’?

24.  In CrimA 136/51 Frankel v. Attorney General (the Frankel case [7]) the Court addressed the question whether the arrest of a citizen by another citizen was lawful, and on this matter the question was examined whether the arrest in the circumstances that were proven to the Court could be viewed as fulfillment of the duty to prevent a felony.  In this context the Court related to the interpretation of section 33 of the Criminal Law Ordinance—the very section 262 of today in its original English formulation—and this is what Justice Agranat told us as to the interpretation of the concept of ‘knowing’:

‘Knowing’ means knowing in its simple sense; meaning it is not about simply a conclusion, which a person deduces logically from the circumstances.  In the case before us the complainant had no clear or certain knowledge that the appellant was thinking of breaking into his yard and committing a theft there; at most—and we are not establishing this either—he had a reasonable suspicion as to such an intention on the part of the appellant and that is all.  This being so, there is absolutely no room even for the application of said section 33 [today section 262 of the Penal Law—M.C.]

(Ibid at p. 1607).  See further CrimA 89/78 Affenger v. State of Israel [8] at p. 149.

And thus ‘knowing’ means knowing ‘in its simple sense’.  If you will: ‘its sense is simple’.  Is it indeed so?

The knowing that the provision of section 262 of the law addresses is a unique and special knowledge.  It is knowledge revolving around the thoughts of another, his plans, the plots he harbors in his heart.  How can I know what goes on in a person’s heart, what plot he is hatching in his heart, what bad deed is he planning to do?  How will I see into the heart and mind of man?

… as not what man will see as man will see of the eyes and G-d will see of the heart (Samuel A 17, 7 [51])

And as the statement of the English Court in the fifteenth century in the words of Brian, C.J., on not knowing what man’s thoughts are:

The thought of man is not triable, for the devil himself knoweth not the thought of man (as brought in G. Williams Criminal Law [42], at p. 1).

If this is so generally, all the more so when we know that:

Many are the thoughts in man’s heart (Mishlei, 19; 21) [52].

Indeed as Bowen, L.J. said in the case of Edgington v. Fitzmaurice at p. 483 [25] (1885):

...the state of a man’s mind is as much a fact as the state of his digestion.

The state of man’s mind is as the state of his digestion, and yet, the question remains: how can I know the state of a man’s mind?

There is a difference between a person’s knowledge of his own thoughts and plans and his knowledge as to the thoughts and plans of another.  A person may know what his own thoughts and wishes are.  When I want to stroll down the avenue, I know I want to stroll down the avenue.  However, how can I know if you want to stroll down the avenue?  Even if you say: I could know this from external manifestations of your wishes; for example, if you tell me that you wish to stroll down the avenue.  Let us now presume that you told me that you wish to stroll down the avenue; then I would know that you told me that you wish to stroll down the avenue.  However, do I ‘know’ that you want to stroll down the avenue?  The question in our matter is therefore this: when are we entitled to say about a person that he ‘knew’ that a certain person is plotting to commit a felony?

25.  Until an inventor invents a machine which reads minds, we will not know the thoughts racing around a person’s mind—what schemes he hatches in his heart, what plans come pass through his head—unless those thoughts, plans, or schemes find external-objective expression (overt acts); for example: a person tells of their plans and thoughts; we observe the acts of preparation for implementing a certain plan; a certain person hears, willingly or not willingly, a conversation between the evil schemer and another etc.  And the veritable truth be told—whether a certain person plots to commit a felony—only that person himself will know.  Another person will not ‘know’ if a certain person is plotting to commit a felony other than as a deduction from external indications that were given in hatching the plot.  Out of the accumulation of external expression generally we can conclude, as a common sense conclusion—that a certain person is hatching evil plans in his heart, however, even then it would only be a deduction—a deduction and not absolute knowledge.  ‘Absolute’ knowledge can be as to past events or my own thoughts.  ‘Knowledge’ as to another’s thoughts—by nature—will never escape the realm of deduction.  This being so, when we say that Reuven ‘knows’ that a certain person plots to commit a felony, we are referring to knowledge which is not knowledge in its simple sense, but to a deduction which is based on external manifestations of the existence of the thought, the wish, the plan.  Deduction as to a negative phenomenon can also be termed ‘suspicion’—in seeing certain things I ‘suspect’ that a certain person is plotting to commit a felony—but we will be careful with the use of this term for reasons which we will discuss shortly.

Criminal Intent—’Cognizance’, ‘Suspicion’, ‘Knowledge’, ‘Knowingly’

26.  In the year 5754-1994—in Amendment no. 39 of the Penal Law (Penal Law (Amendment no. 39) (Introductory Part and General Part) 5755-1995)—as is known, the general part of the Penal Law was repealed and replaced with a new general part.  In the year 5755-1995—in Amendment no. 43 of the Penal Law (Penal Law (Amendment no. 43) (Adapting the Penal Laws to the Introductory Part and General Part) 5755-1995—the legislator provided us coordinating provisions between the penal law that preceded amendment no. 39 and the provisions of the new general part.  These amendments in the penal law have sown no small amount of confusion in our matter and we have been given the assignment to disperse the fog.  Even on this subject, as on other matters—chiefly the question of the conviction of the Appellant—differences of opinion between the judges in the lower court have arisen, and the time has come that we untie the knot and say our piece as to determination of the law.

27.  And this is the upshot of things.  Section 20 of the Penal Law (after the Amendment) concentrates on the intentional element of the crime—on criminal intent—and its core provision appears in the provision at the beginning of paragraph (a):

Criminal Intent

20 (a) Criminal Intent—cognizance of the nature of the action, to the existence of the circumstances… which are included among the elements of the offense…

The key phrase for our matter is ‘cognizance’.  This is so with respect to crimes of conduct, and the offense of neglect to prevent a felony is a crime of conduct.  The provision of section 20(c) of the statute broadens the concept of ‘cognizance’ beyond its core meaning:

Criminal Intent

20.  (a) …

        …

       (c) For purposes of this section—

               (1) A person who was     suspicious as to the nature of the behavior or the possible existence of the circumstances is viewed as one who was cognizant of them, if he failed to look into them.

Putting two and two together, we see that ‘cognizance’ of the nature of the act and the existence of the circumstances includes in its meaning suspicion regarding the nature of the act and the existence of the circumstances; that is, if a person fails to look into them.  A suspicion therefore—suspicion as to the quality of the act and the existence of the circumstances—is equated with ‘cognizance’, if you will it is cognizance de jure, unless the person looked into the matter and his inquiry revealed that the suspicion that arose was an empty suspicion.  It is as though the law imposed on the individual—by implication—the burden of inquiring about the behavior and circumstances, and if he refrained and did not look into it—suspicion will be equated with ‘cognizance’, and an act that is done will be seen as an act accompanied by ‘cognizance’.  In other words, ‘willful blindness’ is equated to and is a substitute for ‘cognizance’.  Professor Feller has discussed the logical-moral foundation of this provision, a provision which is cognizance-broadening, in his book supra (Vol. A [26] at p. 519:

Cognizance of the possibility of the existence of the circumstance, on which the offense depends, obligates the person to examine the situation, prior to committing the act, in all that relates to that circumstance, in order to refrain from the act, in case the existence of the circumstance is confirmed.  If despite the suspicion, the person did not do so, whether because under every circumstance he was determined to commit the act, or whether it was more convenient for him not to know or for any other consideration, this means that he has reconciled himself to the existence of the circumstance.

Therefore, disregard which is cognizant of the possibility of the existence of a set of circumstances is equated with cognizance of these circumstances; as this set of circumstances was before the person’s eyes, but he did not take the effort to examine the situation and check it out.  If it turns out in retrospect that the relevant circumstances indeed existed, the cognizance of the possibility of their existence out of suspicion is equated with cognizance of their very existence.

In applying this doctrine to our matter one could–ostensibly—say that the concept of ‘knowledge’ as provided in section 262 of the Penal Law (‘one who knew’) includes not only knowledge in its plain meaning but also suspicion, ‘suspicion’ as per the provision of section 20(c) of the Penal Law.

28.  Our journey is not yet over.  Amendment no. 43 of the Penal Law—which added section 90A of the Penal Law—establishes, as we noted above, coordinating provisions between the Penal Law that preceded the new general part of the law (as established in Amendment no. 39) and the new general part.  It establishes ‘Provisions for Adapting Penal Laws’ in the language of the title to the chapter in which section 90A is found.  Section 90A constitutes something a changing station for terms which deal with the intentional element of the offense, and it is dedicated to exchange of old terms with new terms.  One of those terms of the intentional elements in offense is the concept ‘knowingly’.  The penal law which preceded Amendment no. 39 makes frequent use of the concept ‘knowingly’, and now section 90A (3) shows us how this concept will transition to a new era.

Interpretation of the law as to the intentional element in the offense

90A  In any place in the statute which was legislated prior to the effective date of the Penal Law (Amendment no. 39) (Introductory Part and General Part) 5754-1994… and in which the intentional element of the offense finds expression in the term-

(1)…

…

(3) ‘Knowingly’or a term with a similar meaning—the term will be interpreted as criminal intent as said in section 20(a);

Meaning: in the (chronological) border station between the Penal Law prior to Amendment no. 39 and the Penal Law after Amendment no. 39 stands the concept-exchanging border guard, and on his shop there is a sign on which it says ‘interpretation of the law-section 90A’.  Prior definitions of the penal offenses stand in line for that exchanger; the exchanger exchanges old terms with new terms, and after the exchange it allows them to continue in their way toward the modern Penal Law.  And thus, prior offenses put in the hands of the exchanger the concept ‘knowingly’ which is part of their definition, and in exchange they receive the term criminal intent as said in section 20(a) of the Law; meaning, for our matter: the cognizance of the nature of the act and the existence of the circumstances which are counted among the components of the offense.  Compare CrimA 2831/95 Elba v. State of Israel [9] at p. 262 (in the words of Justice Mazza).  For critique of the exchanging provisions for our matter see I. Kugler, ‘As to the Requirement of Awareness as to the Circumstances in the new General Part of the Penal Law’ [36], at p. 175.  And see further R. Kanai, ‘Is it Indeed one Law for those who Suspect and those who Know?’  [37] at pp. 437-440.

Since the provision of section 262 of the Penal Law—which is the statutory provision we have been circling all this time—was legislated prior to Amendment no. 39, the adapting provision is meant to apply to it, in text and spirit, and it is incumbent upon us to incorporate the adapting provision into the rest of the statutory provisions in our matter.

29.  The blocks have piled up before us in a confused fashion and the time has come to arrange them in proper normative order.  We will therefore weigh the matter and say as follows: the concept of knowledge in section 262 of the Penal Law (one who ‘knew’) is—as per the provision of section 90A(3) of the law–… a term of similar meaning…’ to the term ‘knowingly’; that same knowledge is to be interpreted therefore as criminal intent according to the provision of section 20(a) of the Law, and for our matter as cognizance; section 20(c) of the Law establishes that ‘suspicion’  – meaning: willful blindness – is equated to cognizance; ergo: the phrase ‘one who knew that a certain person is plotting to commit a felony’ (emphasis mine—M.C.) in section 262 of the Penal Law, is to be interpreted as also applying to a situation according to which: one who suspects that a certain person is plotting to commit a felony and refrains from looking into his suspicion.  The knowledge in section 262 will not be interpreted in its simple meaning—not at all in its simple meaning—but will also apply to the mental state of willful blindness.  Note: the concept ‘suspicion’ and ‘willful blindness’ serve in Jewish law and in the words of our sages as interchangeable, and in our discussion below we will also not distinguish.

30.  This issue of interpretation also stood before the Magistrate’s Court even prior to the District Court, but the manner of treatment by the judges was not uniform.  Justice Lidski was of the view that ‘willful blindness’ is sufficient and the condition of knowledge in section 262 would be fulfilled; see the decision handed down in the Magistrate’s Court, ibid [23] at p. 371.  In the District Court the judges were all of the view that it is a condition of the offense that the defendant have actual ‘knowledge’, and that willful blindness is not sufficient.  The Appellant’s counsel argues that willful blindness is not sufficient while the State’s counsel argues that willful blindness is sufficient, but that under the circumstances actual knowledge was proven.

31.  Before we get to analysis of the matter itself, we will discuss briefly the reasoning of the District Court for its view that willful blindness is not sufficient, and we will express an opinion on what we have read.  The mechanical arrangement of the blocks poses a difficulty for the approach of the District Court.  Going heel to toe: from section 262 of the Penal Law to section 90A(3); from section 90A (3) to section 20(a); from section 20(a) to section 20(c); from section 20(c) back to section 262; this orderly and disciplined walk will lead us to the (mechanical) conclusion that the concept of ‘knowledge’ in section 262 of the Penal Law also includes willful blindness.  This conclusion seemed difficult to the District Court (as we shall see later), and it should have found a way out of the difficulty.  What is the way out?

The way out was found for the Court by classifying the knowledge in section 262 of the Penal Law as a circumstantial-factual element rather than an intentional element.  Which means as follows: the path of the chain that we pointed out from the provision of section 262 of the Penal Law to other provisions in the law and back to the provision of section 262—depends on the classification of the concept of knowing in section 262 (‘one who knew’) as an intentional element distinguished from other elements which make up the definition of the offense (this based on the beginning of section 90A, which explicitly refers us only to the intentional element).  And here, if we classify the knowledge component not as an intentional element but as another element of the offense, in any event we will not have to follow the full length of the chain, and we will not be obligated by the statutory text to interpret knowledge as also including willful blindness.  This is the approach of the Judges of the District Court.

The minority opinion judge, Justice Berliner, determined (if we have understood her correctly) that knowledge is—generally—an intentional element of the offense, but for purposes of the offense in section 262 of the Penal Law, and in a departure from the norm, it constitutes a circumstantial element.  Justice Hammer determined that it is a factual element of the offense, meaning one circumstance among many (Justice Bayzer did not address this classification).  When they found thus, the judges of the District Court saw themselves freed of the chain of progression and from the conclusion that arises from following the chain.  As to the matter itself the judges determined that the circumstantial element of ‘knowledge’ means its simple sense, meaning it does not include willful blindness.  We agree with the conclusion of the Court; but we do not follow its path to the conclusion.

32.  A criminal offense is divided into two primary elements: the factual element and the intentional element.  See section 19 of the Penal Law.  The factual element of the offense is addressed in the provision of section 18 of the Penal Law, and it tells us as follows:

The structure of the factual element

18

(a) ‘component’ as to offense—the action in accordance with its definition, and a circumstance or result that was caused by the act, where they are part of the definition of that offense.

(b) ‘an act’—including an omission, if not said otherwise.

(c) ‘omission’—refraining from doing that which is a duty according to any law or contract.

Section 20 of the Penal Law revolves around the intentional element in the offense, as to the criminal intent.  Application of this classification to the provision of section 262 of the Penal Law means, in my view, that Reuven’s cognizance that a certain person is plotting to commit a felony—alongside cognizance that he is not taking steps to prevent the commission of the act or its completion—is an intentional element of the crime, while the other elements (a certain person plots to commit a felony and failure to undertake the means to prevent the commission or completion of the act) are factual elements in the offense.  Definitions of the concepts ‘element’ ‘action’ and ‘omission’ in section 18 of the Law clarify this.  The knowledge (cognizance) that a certain person plots to commit a felony is not different in its classification—and it is not appropriate for it to be different—from cognizance in any other criminal offense.  We are talking about the state of mind and the consciousness of the one committing the offense, we are dealing with the intentional element; in contrast, when we are talking about a state of mind and consciousness of another—the individual plotting to commit the felony, it is a matter of a circumstance, a factual element.  Professor Gur-Aryeh addresses this question in chapter III, section 2.2 in her article above [34], and we agree with her words, including their fine manner of presentation.

Anecdotal evidence supporting our words is this: section 20(a) of the Penal Law instructs us that criminal intent includes awareness of the existence of the circumstances which are included in the elements of the offense.  And thus, if we classify the knowledge in section 262 (as to another’s plotting) as a circumstance, than we must say—joining these things together—that we require the cognizance of a person of his own knowledge of the plotting of another.  This is a statement lacking meaning and devoid of logic, as it is obvious that a person is aware of his own knowledge.

33.  We return to the high road and address the core of things.  The departure-point for the interpretive journey is, as we have seen, that the concept of knowledge in section 262 of the Penal Law (‘one who knew’) deals with the intentional element of the offense, criminal intent.  The chain of progression dictates this (ostensibly), and I do not suggest that we deviate from this path.  In taking this path, we reach the conclusion, a conclusion necessitated by law, as it were–that the concept of knowledge in section 262 of the Law also encompasses willful  blindness, meaning: one who acts with willful  blindness may be liable for the offense of neglect to prevent a felony, as willful blindness is equated with cognizance.  This conclusion is difficult for us; we will go further: it is unacceptable, in our view, and the law also does not necessitate it.  We will explain.

34.  We will start from our conclusion and say: in our view, the offense of neglect to prevent a felony—by its very nature and character—excludes the possibility of interpreting the concept of ‘knowledge’ as including mere suspicion.  The necessary conclusion of this is that the provision of section 20(c) of the Penal Law—which is a general statutory provision equating suspicion and cognizance—will be stopped on the threshold of the entrance of the provision of section 262—which is a special statutory provision—and will not enter that house.  The general statutory provision will retreat before the special statutory provision.

35.  This special crime of omission—the offense of neglect to prevent a felony—by its nature obligates us to act with extra caution in interpreting the concept of knowledge.  The element of knowledge in the offense (‘one who knew’) is the foundation on which the offense is based, the formative element, it is the element that establishes a duty to take action and to take all reasonable means to prevent the commission or completion of a felony.  This special status of the knowledge element, requires us, in our opinion, to limit it to knowledge only, simply and literally, as the legal rule that applied prior to Amendment no. 39 (see the Frankel case [7] supra).  The knowledge of a certain person who is plotting to commit a felony, as we saw above, can never leave the realm of deduction which is based on external manifestations and expressions of evil thoughts and plots in an individual’s heart.  Only if a person seriously has the impression—on the basis of real evidence—that an individual is plotting to commit a felony, only then can we say that that person ‘knows’ of the other person’s plot.  If given this background we reduce the ‘knowledge’ requirement—simply and literally–and we make do with mere suspicion as to the plans and plotting of a certain person to commit a felony, it appears that we would be going very far, farther than is proper and desirable as to the inter-relationships of individuals in society, whether in relationships with strangers or relationships among those who are close to each other.  As to broadening the areas of the knowledge in section 262—to also apply to willful blindness—we say that the sages do not approve; the broadening of the areas of knowledge imposes a burden on man to look into a suspicion that arises in his heart, and this burden is like a decree that most of the public cannot observe; it is a regulation that leads to mishap.

36.  Knowledge as provided in section 262 of the Law means that facts accumulated in a person’s head concerning external manifestations of what goes on in an individual’s heart and mind, to the point where their cumulative weight reaches a ‘critical mass’, meaning to the point of ‘knowledge’ that a certain person is plotting to commit a felony.  This knowledge we should properly require that it be clean and clear.  It is proper that it be far from mere suspicion (as per the provision) of section 20(c) of the Law).

Behold Reuven who suspects that a certain person plots to commit a felony; suspects but is not sure that his suspicion is a justified suspicion.  Will we obligate him to look into the circumstances while taking on the risk that if he does not look into it—and later it turns out that his suspicion was justified—we will charge him with actual cognizance of the act and with the omission of failure to take reasonable means etc.?   This result appears difficult to me.

37.  The provision of section 20(c) of the Penal Law—a provision which deals with willful blindness—permits the defendant to escape the jaws of the doctrine of willful blindness, only if he properly looks into that which needs looking into, if he goes deeply into researching the suspicion he suspects; as if he does so and finds that the suspicion is an empty one, the willful blindness will disappear on its own.  This is the word of the provision of section 20(c) of the Law, that suspicion as to the nature of activity or the possibility of the existence of circumstances is weighed against cognizance of these ‘… if [the defendant–M.C.] refrains from looking into them’.  Applying these words to a crime of omission such as ours would mean that we are imposing on a person the burden to look into a suspicion that lurks in his heart; that if he does not look into it he will be seen as one who was cognizant of the circumstances while in fact he was not cognizant of them.  The necessary conclusion from this is that the law imposes a burden on a person to look into a suspicion that arose in his heart, and if he did not look into it—or if he did not come up with anything from his inquiry—he must bear the burden imposed on him, meaning to take action, to take all reasonable means, etc.  In other words we are imposing on a person the burden of action (for example to report to the police)—to prevent the commission or completion of a felony—even if he only suspects that a certain person is plotting to commit a felony and even if he has no actual knowledge of the plot.  See and compare: Feller in his book supra (Vol. A) [26], at p. 519; Gur Aryeh in her article supra [34], Part II, section 1.2 H.  Such a burden is a heavy and unreasonable one.

Professor Gur Aryeh says in her article supra [34] (in part II, section 9.2H) as to the crime of omission (including the offense of neglect to prevent a felony):

… the concept of willful blindness enables attribution of knowledge also to one who suspects the existence of a state of things which may give his behavior a criminal character.  The assumption is that before one looks into his suspicion, or as long as the suspicion has not been removed, he does not have to act.  For one who does not want to invest the necessary resources for the inquiry, there is the option not to do the act.  Making do with willful blindness in cases of omission is not self evident.  If indeed willful blindness is also applied to omissions, the omitter is left with no choice but to look into his suspicion.  The concept of willful blindness imposes on the omitter an additional burden—to determine whether the factual situation is such that obligates him to act.  At least when the duty imposed on the omitter is a general duty, which does not stem from his special connection to the situation, it is not clear if indeed there is justification for the additional burden of inquiry as a precondition to the duty to act.  This is true in general, and all the more so when it is an omission that is based on knowledge of the plots of another.  It is not clear how one who suspects that another is plotting to commit a serious felony such as murder can look into his suspicions.  And more importantly, it is doubtful if we would want one to try and look into the suspicion; an inquiry which may spur one to stalk the one who is plotting to commit a felony.  Society has no interest in encouraging individuals to stalk one other with the goal of collecting information as to the plans of others, even if these are malevolent plots, just the opposite.

See further Gur Aryeh’s detailed and convincing analysis, ibid .  In the same vein Kanai wrote in her article supra [37] as follows:

Section 262 of the law is the well-known section of neglect to prevent a felony.  The section refers to one who knows that a certain person is plotting to commit a felony.  Will we indeed obligate a person to go to the police and notify it in every case in which he harbors even a slight though real suspicion that his neighbor is plotting to commit a felony?  There are considerations of legal policy that would limit this duty to cases of knowledge or suspicion at a very high level.

And in footnote 33, ibid , Dr. Kanai brings examples of such  policy considerations:

Such as maintaining good neighborly relations, concern of retribution to neighbors, concerns of flooding the police with complaints and more.

38.  Regarding offenses which revolve around taking action, one can understand and justify the application of the concept of knowledge to willful blindness as well; we say to one who wants to take action: don’t take action—until you look into a suspicion that you have; stop—hold back—until you are sure and know that the action which you are about to take is not a criminal action.  Not so with crimes of omission, where it is as though we are ordering the person: act: investigate and inquire; for if you do not act, if you do not investigate, do not inquire—you will be viewed in our eyes as one who was aware of the circumstances that in truth you were not aware of.  There is no need for a wild imagination to understand and know that from an intentional standpoint—in fact from any standpoint—it is more difficult to take action to inquire as to the truth of a suspicion than to refrain and not take action with an -offense of  commission.  The duty of reporting to the police as instructed in the provision of section 262, is a difficult duty in and of itself, a duty which is not free of problems; all the more so when we say that this duty is imposed on a person—in criminal law no less—where he suspects that another person is planning to commit a felony.  What will such a person do? Will he stalk and follow the person?  Ask him about his plans?  See further Gur Aryeh in her article supra [34] Part II, section 1.2 H.

39.  As an interim conclusion in this chapter, we will say as follows:  we are gripped by the following question—does the concept of knowledge in section 262 of the Penal Law limit itself to knowledge—in its simple sense—or does it spread out to include willful blindness as well.  We have examined the question from its various aspects and have concluded as follows: if we classify this knowledge as criminal intent—meaning, we will follow the chain—we will be forced to apply the knowledge in section 262 to willful blindness as well.  This conclusion is difficult for us.  We will go further and say: this conclusion is not acceptable to us at all.   At the same time, if we classify the knowledge in section 262 as a circumstance—as distinguished from criminal intent—then we will betray basic tenets of the law.

We are caught therefore—ostensibly—between the Scylla and Charybdis, and we are in distress. Woe is me from my creator and woe is me from my heart.  And as the Prophet Amos said: ‘just as a man flees from the lion and the bear attacks him and he reaches the house and leans his hand on the wall and the snake bites him’.  What can we do therefore to extract ourselves from this distress into which we have fallen?  What password can we utter to gain us our freedom?

40.  In our view, as we already noted above, the proper path is to narrow the effect of the chain of progression, meaning: to narrow the application of the provision of section 20(c) of the Penal Law on the offense of neglect to prevent a felony.  Following the chain of progression—mechanically—indeed leads us to the conclusion that the concept of knowledge in the provision of section 262 of the Law also includes willful blindness. However, having reached the substantive conclusion—after examining the innards of the offense of neglect to prevent a felony—that it utterly excludes—in interpreting of the concept of knowledge—criminal intent that involves only willful blindness, we are obligated to stop in our tracks; to stop and reflect.  These reflections will teach us that there is no escape from the conclusion that narrowing the application of the offense—according to its definition—obligates us not to apply to it the directive of the general statutory provision which establishes that the concept of cognizance spreads over willful blindness as well.  And in our words, in the language of legal theory we would say: defining the offense of neglect to prevent a felony is a special law (lex specialis), while the provision in section 20(c) of the law is a general law (lex generalis), and it is a well-known principle that a special law overrides a general law: lex specialis derogat generalis.  The provision of section 20(c) will stay as is, but in setting out to modify various offenses, when reaching the provision of section 262 it will retreat and will not apply to this offense of neglect to prevent a felony.  As to this matter we can do no more than repeat the words of Professor Gur Aryeh in her important article [34] (in Part III, section 2.2D)—to review these words and adopt them as they are written:

If we want to deny the application of willful  blindness in the framework of the offense of neglect to prevent a felony, it is proper to do so by establishing a limitation to the provisions of section 90A(3) and 20(c) of the Penal Law.  The interpretive argument will be that these provisions are general provisions which belong to the general part of the Penal Law.  General provisions may be disregarded when it is a matter of a special offense, in cases in which the uniqueness of the offense justifies disregarding the general provisions.  And the uniqueness which justifies disregarding the general provision which establishes that willful blindness is a substitute for knowing the circumstances is rooted in the reasons brought by the judges of the District Court themselves [in the Har Shefi case—M.C.]:  the offense in section 262 is a crime of omission which imposes a duty to act based on the plots of another.  The plots themselves by nature are dynamic and changing, it is doubtful if one can determine the seriousness of the plots, and there is no public interest in encouraging him to try and inquire as to these plots by stalking the plotter.

And indeed, this is—in general–the relationship between the general definitions and doctrines which cut across the law lengthwise and widthwise, and specific statutory provisions.  General definitions and doctrines will attach themselves to all statutory provisions and laws they wish to apply to. But where a certain specific statutory provision seeks to expel from within its bounds the general definition or doctrine—and this expulsion is derived by way of ‘interpretation’, in the broad sense of the concept of interpretation, including from the basic tenets of the system: logic, justice, first principles, social doctrines, etc.— the specific statutory provision prevails, while the general definition and doctrine will retreat. The general definition and doctrine will apply, as per the language of the Interpretation Law 5741-1981 in section 1, ‘… if there is no other provision as to the said matter, and if there is nothing in the said matter or its context which cannot be reconciled with…’ the general definition or doctrine.

41.  Elsewhere I raised the theory that the term ‘tort’ in the Torts Ordinance [New Version] is not limited only to those torts listed in the Ordinance.  I opined that the concept ‘tort’ is a conceptual term, and from this I concluded that there are ‘torts’ outside of the Torts Ordinance [New Version].  Against this background I further asked myself, what is the relationship between the doctrines that were established in the Torts Ordinance [New Version] and those unspecified torts.  I answered the question by saying that an unspecified tort will not ‘be controlled mechanically by the doctrines established by the Ordinance.’  And that the doctrines in the Ordinance will apply to unspecified torts only ‘… if the application of a certain doctrine from the Ordinance is consistent with the foundations, essence, and structure of the tort at issue, and with the framework in which it is found’: M. Cheshin, ‘Sources for Tort Law in Israel’, Tort Laws—General Tort Jurisprudence [28] at p. 81 s. 60.  See further CA 3666/90 Zukim Hotel Ltd. v. Municipality of Netanyah [10] at p. 73   ; CA 804/80 Sidaar Tanker Corporation v. Eilat Ashkelon Pipeline Company Ltd.; [11] at p. 440.

Doctrines, classifications, and definitions, we have created these for our own use; they were intended to serve us; we will control them and not allow them to control us; the power is in our hands, and we will now allow our own creations to rise up against us.  Indeed, we will find it difficult to develop thoughts and law without doctrines, definitions and classifications.  The classification of offenses according to their elements—carries great analytical and practical importance; determination of characteristics common to different offenses makes it easier to analyze them precisely according to a general and predetermined formula, and can advance modes of thought and development of ideas.   See Feller in his book supra (Vol. A) [26], at p. 130):

…  defining the offense according to a general structure is a necessary tool for methodical and precise examination of the requirements for the formulation of each specific type of criminal offense and for determining for each concrete event the corresponding type of offense.  Definition is a tool which serves the theory, and is also essential for legal practice.  Definition is also the link connecting between the law which defines the types of specific offenses, and the concrete events which have the hallmarks of a criminal offense in order to examine the correspondence between the event and the law.  This is the model to be examined.

Definition is also the model for studying the offense and its substantive content.

All these are appropriate things, as long as we don’t find ourselves bowing to the doctrines, definitions and classifications; praying to them, bowing to them and paying tribute to them.  I discussed this in CrimA 4675/97 Rehov v. State of Israel [12] at p. 377:

Classification in the law… we know is not done purely as an intellectual exercise.  Classification is intended at its core to serve as a  tool in our hands, it is meant to serve us, to make order of hylic principles, to advance understanding of topics which we deal with, assist in advancing those topics.  Aesthetics is also a factor in legal thinking, but the key is functionality and efficiency…

… it is incumbent upon us to take care lest we turn the classification into our mistress, a mistress who will dictate to us what to do and what not do to.  On the contrary.  We are the mistress and the classification serve us.

See also the citations ibid.

42.  In our view when we seek to find a way to reconcile the provision of section 262 with the provision of section 20(c) of the Penal Law, it is proper that section 20(c) retreat before section 262.  In other words, the concept of cognizance in the provision of section 262 of the Penal Law (‘one who knew’) will not include willful blindness and suspicion.  Cognizance is cognizance—to the degree that cognizance of the state of mind of another can be called cognizance—and in the provision of section 262 there is no ‘cognizance’ which is less than actual cognizance.

43.  In chasing willful blindness out of our house, we have established what  is not in the house; the time has come to look around us and learn what is in it.

Cognizance and actual cognizance—when does suspiciontTurn to cognizance?

On the content of cognizance; ‘one who knew’—what did he know?

44.  As we have seen, the concept of cognizance in section 262 of the Penal Law (‘one who knew’) is a somewhat complex concept.  It revolves around the thoughts and plans of another (‘one who knew that a certain person is plotting to commit a felony’), and we know that one does not ‘know’ of the thoughts and plans of another other than by external manifestations which are detected by the five senses and by the processing of these manifestations in one’s mind.  ‘Cognizance’ as to the thoughts and plans of another is—in theory and in fact—a deduction deduced from external manifestations and expressions of those thoughts and plans.

This raises the question: how many external manifestations and expressions are required, and what quality should they have, such that we can say that a person ‘knows’ that a certain person is plotting to commit a felony?  We will not find a single answer to this question; the circumstances of each case and incident will decisive, and provide us the answer.  The test of evidence will be the test of the reasonable man—meaning, the Court—and it is the test of reasonableness and common sense.  The question that the Court will ask itself will be if the information that was gathered by the accused—the quantity of the information and the quality of the information—if this information reached such a level that it is possible to categorize it—by the rules of logic and common sense—as ‘knowledge’; if the information reached the ‘critical mass’, if the cup is full to the brim.  The court will apply this evidence test to the accused standing before it, and it is superfluous to say that the accused can try to convince the Court that for one reason or another the reasonable person standard will not be satisfied by the specific circumstances of the matter.

45.  However, this is not enough.  The answer to the question whether cognizance has been achieved or not, is analytically derived not only from the quantity and quality of information that accumulated in a person’s mind (the reasonable person).  In addition—and perhaps first and foremost—it is derived from the purpose of the law and from the balance two counter-forces; the balance between the force pulling toward the creation of the offense and the force that is repelled from its creation, and once it has been created seeks to narrow its boundaries as much as possible.  These are, for example, the same factors which seek to narrow the range of applicability of the offense: the revulsion from informing; the fear of disputes within the family, among friends or relatives; the fear of revenge if a person is in contact with the police; the inclination of a person not to get himself tangled up in things that are not his business.  These factors—and others— tell us that a fairly high degree of confidence in the correctness of the information is needed before it reaches the level of ‘knowledge’.  On the other side are those factors which tend to broaden the bounds of the offense—chiefly the pressing need to prevent felonies, particularly severe felonies—and those factors whisper in our ears that we should make do with information which is not at such a high level and agree to see it coalescing to the point of being ‘knowledge’.  These forces pull one way, those forces pull the other way, and standing in between we will determine the proper quantity of information required to create knowledge.

46.  Where it is a matter of a process which takes place over time; where pieces of information accumulate one on top of the other over a certain period; the decisive moment is the time of transition from information which creates only a ‘suspicion’ to information and suspicion which develop and coalesce into ‘knowledge’, and from that point on a person bears the burden that section 262 of the law imposes on him.  ‘Suspicion’ is like a fetus in its mother’s womb, a creature that is unable to sustain itself independently.  Compare to the words of Justice Agranat in Frankel case [7], paragraph 24 above.  And see CrimA 205/60 Moskowitz v. State of Israel [13], at p. 2456.  Thus, for example, it is possible that certain information will come to a person and will create no more than a suspicion (meaning, a suspicion that a certain person is about to commit a felony), and it is possible that later further information will fall into the hands of that person and the suspicion will turn into knowledge.  As to this process we can say, that the suspicion developed until it became a creature that could sustain itself, and it is like a fetus whose navel was disconnected from its mother.  It is even possible that ‘knowledge’ will be created at once, without going through the early suspicion phase.  Each case will depend on its circumstances, and the question in each case will be a question of deduction from the accumulation of information that in the hands of that person.  The primary thing is that the knowledge be ‘real’ knowledge and not just knowledge which relies on bits of rumors and speculations.  Information must be real information for us to agree to view it as ‘knowledge’ in the framework of section 262 of the Law, and this interpretation of the Law strikes a balance between the social need to prevent actions which disturb the peace and harm man—at times harm human life—and the important need—and we have discussed above some of the reasons for this need—not to broaden beyond the proper degree the bounds of the offense.  Compare, for example: the Ploni case supra [1] at p. 719 in the words of Justice H. Cohn (‘the duty to take action to prevent a felony exists only when the danger of the felony is immediate and real’); Gur Aryeh in her article supra [34], part II, Conclusion, see further below:

The knowledge that a certain person is plotting to commit a felony

47.  The provision of section 262 of the Penal Law only applies to a case where a certain person plots to commit a felony.  Justice Berinson asked and answered: ‘... what does the accused need to know in order to fulfil this requirement?  Does he need to know the substance of the offense that was committed, its various legal elements, and the sentence the one committing it is to expect?  I think not’: the Abu Kadra case [2] at p. 250.  But what yes?

... what requires proving in this case is that the accused knew the facts, from which one can legally deduce the offense that was plotted or committed, but he himself is not required to know in fact the exact substance of the offense.

...

... the accused must know the facts which constitute the offense and not necessarily the exact nature of the offense from a legal standpoint, but as a reasonable law-abiding person he should have understood that he needs to take action in order to prevent its commission or its consequences, if it has already been committed. (ibid, pp. 251-252).

The law’s presumption is, as reason suggests, that a felony, any felony, is considered a malum in se, and it is a presumption as to every person here that he knows what a felony is—if not its exact legal definition, then its nature as an action which is opposed to an extreme degree to the good of the public and the individual.  In our matter, where we are speaking of plans to murder a person, this question does not come up at all.

‘A certain person plots to commit a felony’—the realness of the danger and the immediacy of the danger

48.  The knowledge that a certain person plots to commit a felony sometime in the future, without setting a specific date for this—does this constitute knowledge for the purpose of section 262 of the Law?  The knowledge that a certain person is plotting to commit a felony in three months, four months, eight months—is this ‘knowledge’ as the offense is defined in section 262?  Justice H. Cohn has shown us that ‘the duty to take action to prevent a felony exists only when the danger of the felony is immediate and real’ (the Ploni case [1] at p. 719; emphasis mine—M.C.)  This guidance that Justice H. Cohn has provided us is derived from his overall perspective that the offense of neglect to prevent a felony is to be interpreted ‘by way of narrowing and strictness, in order not to create an opening for the duty of informing from which the scent of totalitarian oppression wafts… or when there is immediate and real danger to the life of a person in that one who hates him with all his heart sets out to kill him, then the fastidious and delicate ones oppose the need for an act of rescue.’  (ibid).

We will agree to the requirement that the knowledge that is referenced must revolve around the ‘real’ danger of the commission of a felony, as in this way a proper balance would be achieved between the counter-forces.  This, it appears, is also the view of Professor Gur Aryeh (see in her article supra [34], part III section 2.2D).  In our survey above, (see paragraph 37) we spoke of the need that ‘knowledge’ must be real knowledge—we were of the view that knowledge that is not real will not be treated as knowledge—and what we have said there as to ‘realness’ will apply here as well (with the necessary changes).  A danger that is not ‘real’ is not a danger within the bounds of the offense, and knowledge about that danger-that-is-not-real is not knowledge as per the provision of section 262 of the Penal Law.  We emphasize that it is sufficient in our view, that the danger be ‘real’ and it would not be wrong or inappropriate if we characterize the required danger in neglect to prevent a felony as a danger that is ‘near certain’ to occur or a likely danger.  Realness is sufficient and it is not proper to resort to a more stringent standard.  This is the balance that fits the offense and is appropriate to it.  Just as it would not be right to expand the bounds of the offense, so too it would not be right to narrow its bounds excessively.

All this–as to the realness of the danger.

49.  As to the ‘immediacy’ of the danger: we have difficulty knowing what is ‘immediate’ and what is not ‘immediate’.  Some felonies require a long time to plan.  Could it be that, just due to the delay required for planning, the knowledge as to the felony will not come within the bounds of the necessary immediacy?  In CrimA 307/75 Tvik v. State of Israel [14] a certain person asked the defendant (according to the defendant’s statement to police) ‘how to burn down the club... because the club owner reported him to the police.’  The defendant did not report this to the police, and when he was convicted of the offense of neglect to prevent a felony and appealed to the Supreme Court, his appeal was unanimously dismissed (according to Justice H. Cohn).  As arises from the description of the facts, the danger of burning down the club was not immediate (although it was a felony which in the view of the Court ‘the planning of its implementation was already at the time of the discussion... ripe for action’), and the appellant was convicted although he did not know the date and the means by which that person intended to burn down the club.

50.  The Magistrate’s Court in our matter adopted the ‘immediacy’ rule of Justice H. Cohn (ibid [23] at pp. 362-363), while in the District Court the views were split.  Justice Berliner determined that the immediacy and realness are ‘additional measures of the ‘strength’ of the knowledge that is referred to’.  Justice Hammer had reservations about the immediacy and realness requirement—determining that this is not the legal rule—while Justice Bayzer mentions the words of Justice H. Cohn and states that ‘positive, difficult, ‘immediate and real’ knowledge was proven as per the words of the hon. Justice Haim Cohn’.

51.  My view is that the ‘immediacy’ of the danger—as such—is not a constitutive element in the knowledge that the provision of section 262 of the Law is built on.  Indeed, until information becomes knowledge, the information must revolve around a ‘real’ danger, as only then will the knowledge be knowledge as per the provision of section 262.  ‘Realness’ of the danger is a constitutive element in ‘knowledge’, and danger that is not ‘real’ will not create knowledge as per its meaning in section 262.  However, the ‘immediacy’ of the danger is not like the ‘realness’ of the danger, though it can push into one of the corners of ‘realness’.   Therefore if a man who hears one person speaking with another as to a bank robbery which the two are planning to commit that night – a robbery the danger of which is ‘immediate’ – the very closeness in time contributes to strengthening the realness of the danger.  Suppose now, for example, that a person hears another person talking with a stranger about a bank robbery.  He hears the entire planning of the robbery—in all of its details—but the robbery is planned to take place three months later.  Does the absence of immediacy itself—if that is considered absence of immediacy—detract from the realness of the danger?  I am of the view that the answer to this is in the negative.  Indeed, when we examine the substance of the interest that the offense was intended to protect, we will have no trouble understanding that the question of ‘immediacy’ is none other than secondary to and supportive of the element of ‘realness’.

This is so as to the immediacy of the danger, and the same applies to the suspected site of the intended felony, as it too is not a constitutive element in the offense.

52.  An analogy to our matter can be learned from the offense of conspiracy.  Conspiring does not require the same specificity required for the forming of a contract.  As to this it was said (CrimA 461/92 Zakai v. State of Israel [15], at p. 588):

... these matters will be learned from themselves, that for the existence of criminal conspiracy we will not require the same fastidiousness that civil law instructs us as to the specificity of a contract: the risk of committing the offense of conspiracy will exist even if the conspirators did not agree amongst themselves as to those details required in a civil contract, and it is not the custom of conspirators to be scrupulous with details like the attorneys who draft contracts for their clients.  Thus, for example, if the conspirators agreed between them that on a certain night they will go out to break into a store, the two would be charged with conspiracy even if they did not decide which store to break into, even if the civil law holds—due to lack of specificity—that a binding contact was not formed between them.

Indeed so: the need to prevent the commission of a felony is a pressing need, even if the commission of the felony is not planned for the near future or if it was planned for some future date—a date which will arrive only after the removal of a hindrance to the commission or after completion of plans for its commission.  The same is true if the person with the knowledge does not know the date of commission, the place of commission or the manner of commission.

‘Who knew’—knew and believed

53.  The concept of knowledge that a certain person is plotting to commit a felony includes within it the element of recognition that the person actually intends to do what he is plotting.  In other words it is not sufficient that the level of information reached a ‘critical mass’, meaning that the information reached a point of ‘knowledge’ in an objective manner; the person with whom the information collected is also supposed to believe that the person indeed is plotting to commit a felony.  If Reuven was touched by the ‘knowledge’ that indeed a certain person is plotting to commit a felony but at the same time does not believe —in good faith—that the person is indeed serious in his intentions to carry out the plan, it cannot be said of him that he ‘knew’ of the intentions of that person in the sense of the concept ‘knew’ in section 262 of the Law.  Consider a boy who peeps through the keyhole and sees four people sitting around a table; on the table there are maps and drawings and on the wall a board with a drawing as well; on one side of the table are masks and weapons, and those around the table are discussing a bank robbery.  Ostensibly in this scene the condition established in section 262 according to which ‘one who knew that a certain person is plotting to commit a felony...’ has been met.  But this is not necessarily so.  It is possible, for example, that the boy will confuse what he saw with pictures he has seen on television, and in his mind—the mind of a child—he will translate the scene into entertainment.  The child will not believe that the intention of the four is a serious intention to rob a bank.  In these circumstances we cannot say—and indeed we will not say—that the condition established in section 262 was met by that child.  This is only an illustration but the lesson is self-understood.

Moreover, this requirement, that the person with knowledge also believes, is consistent with the social necessity not to multiply false complaints about the danger of the commission of the felony, and with the nature of the offense as an offense which depends on actions that were not yet committed and may never be committed at all.  See further Gur-Aryeh, in her article supra [34] part II, section 1.2 A to E and more.  The author even directs our attention to the psychological phenomenon of ‘self-deception’, a phenomenon of self-convincing or suppression, according to which we are not willing to accept, from a psychological standpoint, that people close to us will commit an offense, all the more so a severe felony.  And we recall that at times—too often for my taste—we hear after the commission of a felony, from family members, friends, and acquaintances: so and so committed the felony?  I do not believe it, he is such a quiet man, quiet and nice, quiet and keeps to himself.  Thus we know that, the statement that Reuven ‘knows’ that a certain person is plotting to commit a felony, does not deal only with the information that Reuven holds; for the commission of the offense of neglect to commit a felony it is also necessary that Reuven believe that that certain person indeed intends to commit a felony.

The general way of things

54.  We have so far discussed the legal principles, and we know that one essential question requires an answer.  The question is: did the Appellant Margalit Har Shefi know about Yigal Amir’s plot to murder Prime Minister Yitzhak Rabin.  ‘Knew’—as per the legal meaning of the concept in the provision of section 262 of the Penal Law.  We will now move to the factual framework, and we will try to learn from the evidence that was laid before the Court whether the Appellant came within the bounds of the offense of neglect to commit a felony or not.  In sum; we have discussed the law.  We now go to the facts.

Did Margalit Har Shefi know that Yigal Amir was plotting to murder Yitzhak Rabin?

55.  Having drawn the boundaries within which we are meant to move, and having discussed the foundations of the offense of neglect to prevent a felony, it is incumbent upon us to examine and determine whether in our matter the elements have been established for the commission of the offense.  The burden is imposed upon us to resolve the differences in opinion between the parties, namely: whether the Appellant ‘knew’—’knew’: as per the meaning of the concept of knowledge in section 262 of the Penal Law—that Yigal Amir was plotting to murder the Prime Minister—knew and did not take all reasonable means to prevent commission of this felony?

56.  We preface our discussion as follows: the decisions of the lower courts spread over many printed pages.  The decision of the Magistrate’s Court runs (the official publication) sixty five pages, while the decision of the District Court runs (in the original Judgment) one hundred and five pages.  Since those who preceded us wrote at length—and justifiably so, we will try to be briefer, even if we have—unfortunately—only been partially successful.

57.  An additional opening comment: the judge of the Magistrate’s Court thought that ‘wilful blindness’ is sufficient—a suspicion that was not investigated—to establish the element of knowledge (‘one who knew’) in the offense of neglect to prevent a felony.  This interpretation of the law is not acceptable to us, like the District Court, and our reasons for our theory we explained above.  Nevertheless it seems that despite this interpretation of the law, the judge of the Magistrate’s Court established as a factual finding, that the Appellant knew of Amir’s plot—’knowledge’: in its simple sense, knowledge as distinct from wilful  blindness—and she based her conviction of the Appellant on this knowledge.  See for example, ibid  [23], at p. 410 near the margin letter B and E, at p. 414 near the margin letters A and E and more.  However, we will examine the factual framework in an independent manner, while assuming that a person does not commit an offense of neglect to commit a felony unless he knows of the plotting of another to commit a felony; ‘knows’—to the exclusion of one who is wilfully blind to seeing.  This is what the judges of the District Court did and this is what we will do.  Indeed, if the credible evidence that came before the Court is sufficient to support the knowledge argument—in the limited meaning of the concept of knowledge—there will be nothing to prevent the drawing of necessary conclusions from the body of evidence.  As to conclusions from the body of evidence that is not disputed, the power of an appellate court is the same as the power of the court of first instance, and we will act as per our strength and wisdom.

58.  We thus return to the question before us for determination: did the Appellant at any time prior to the fourth of November 1995 know—know and believe—that Amir was plotting to murder the Prime Minister?  Did Appellant think that the words that Amir was saying to her as to his intention to murder the Prime Minister, were serious words, or did she think—as she claims before us—that his words were bragging and bluster, words expressed by a ‘fantasizer’.  We will recall yet again: ‘knowledge’ for our matter here must be knowledge in its simple sense (in the sense we discussed above)—knowledge as distinct from ‘wilful blindness’; knowledge must be real knowledge; the defendant (the Appellant before us) must believe that the plotter was intending to accomplish his plot; that the projected danger on the part of the plotter was a real danger, although not necessarily an immediate danger.  At the same time there is no need for the defendant to know of the details of the plot: not in terms of timing, not in terms of place and not in terms of the details of commission.

59.  The parties are not in dispute as to the majority of the facts of the case.  The primary debate between them is as to the significance to be given to those facts, the significance of the facts and the conclusions that arise from them.  Thus for example, the parties are divided as to the level of familiarity between the Appellant and Amir; as to the significance of Amir’s reports to the Appellant about his attempts to murder Yitzhak Rabin; the significance of the Appellant’s consultation with Rabbi Aviner (as we shall see later) and more.  We need only discuss the key elements of what happened and try to draw conclusions from them as much as possible and as much as necessary.

60.  And further as to the matter of the evidence brought before the Court: in the Magistrate’s Court a mini-trial was held as to the memos prepared in the general security service and as to the statements taken by police, at the end the judge decided to accept all this evidence as admissible.  However, the judge also decided that some of the memos that were prepared by the security service will have full weight, while other memos—due to their excessive brevity—will only have weight inasmuch as they are supported by the words of the Appellant herself.  As to the one statement taken by police (Q/41)—and which the Appellant was not permitted to revise—the Magistrate’s Court judge decided to give full weight to that portion of the statement (the first two pages) which the Appellant signed; as to the other pages of the statement—which were corroborated in other places—these too would be given full weight.  As to what was said in the pages which Appellant did not sign and which contradict statements she made in other statements or in her court testimony—their weight will be according to the matter.  So decided the Magistrate’s Court judge; the District Court followed in her footsteps, and we will follow them both.

61.  In describing the facts at hand and in their analysis we will proceed in the following order: after a brief introduction our words will divide into two parts which are meant to blend together: first we will discuss the core of the evidence, that evidence which should directly answer the question whether or not the Appellant knew, what murder plots Amir was plotting in his heart.  After that we will move on and address the evidence which surrounds the core evidence, that atmospheric evidence in which the core evidence moves, evidence which can reflect on the interpretation and significance of the core evidence.

The Connection between the Appellant and Amir—the law of Rodef

62.  The Appellant met Amir at Bar-Ilan University.  The two were students in the faculty of law.  After they got to know each other, they became friends and met often.  Together they went to ‘support Sabbaths’ that were organized in various settlements in the territories, and they participated together in protest demonstrations against the government and its policy.  In their meetings and conversations Amir shared with the Appellant his views, experiences, and even his personal life, he told her about his past, his family and his future plans.  The two discussed many and varied topics, including Psychology, Mysticism, Philosophy, Science and more.  The Appellant describes Amir as possessing great knowledge and original thought.  However the primary matter for our purposes is found in the law of Rodef, a topic that came up again and again in the discussions of the Appellant and Amir.

63.  The concept of ‘the law of Rodef’ carries special significance, and it is something of a code word for difficult and serious content.  When one says that the law of Rodef applies to a person, you know that the speaker seeks to let us know and inform us: such and such a person deserves to die.  And in the words of Rabbi Aviner during his examination in Court: ‘she [the Appellant—M.C.] said to me... that is it spoken about, people are speaking about it, that the law of Rodef applies to the Prime Minister, meaning he deserves to die’ (at p. 755 of the transcript).  It saddens me, saddens and pains, that it was such.  Our sages spoke of one who saw an act and was reminded of the rule in Jewish law (Sanhedrin, 66, A [53]) and here in our matter it has been turned upside down: he saw the rule in Jewish law (ostensibly) and the action followed the rule in Jewish law (ostensibly).

64.  From the evidence that was brought before the Court it clearly arises that the Appellant and Amir involved themselves with the law of Rodef, and primarily with the question whether the law of Rodef applied to Yitzhak Rabin.  Indeed, the question whether the law of Rodef applied to Yitzhak Rabin was discussed in many conversations between the Appellant and Amir, and the impression that is created is that Amir did not miss any opportunity to explain to the Appellant why the law of Rodef applied to Yitzhak Rabin.  The Appellant indeed tried to minimize those conversations, but the Magistrate’s Court judge rejected this attempt, in her words:

Despite the fact that the Appellant attempted to minimize the number of conversations whose topic was the law of Rodef, something different can be seen from her testimony. I deduce from her testimony that there were many conversations between her and Yigal Amir, that there were many arguments that she desperately tried to change the views he was preaching to her... (Ibid [23], at p. 412).

We agree with this determination.

The Appellant knew well that in Amir’s opinion Yitzhak Rabin was to be killed as one to whom the law of Rodef applies.  Amir expressed this many times, in the presence of others and alone with the Appellant, even though the Appellant disagreed with him and tried to convince him to back down from this view.  Thus, for example, on the bus on the way back from ‘Yad Vashem’, a place where they wished to demonstrate but were prevented from doing so—Amir said to those present that the law of Rodef applied to Yitzhak Rabin that he is dangerous to the State and is to be killed.  Those present conducted a noisy argument on this topic until they became discouraged and withdrew.  Not so the Appellant, who alone continued to argue with Amir until the end of the ride.

Moreover, in her examination the Appellant said, several times, that Amir told her that not only does the law of Rodef apply to Yitzhak Rabin and he is to be killed, but that he himself—Amir—wants to implement the law.  For example:

... she repeatedly notes that Yigal expressed several times before her his intention to murder Rabin and according to her she did not take this seriously... (Q/39)

The subject related that she indeed had several discussions with Yigal Amir and he expressed in front of her his desire and intentions to murder Yitzhak Rabin... (Q/32)

She repeatedly noted that Yigal wants to murder Rabin in a great many conversations and she was very angry with him and told him that she would turn him in to the authorities if he continued to speak about it. (V/31)

And further (at p. 636 of the transcript):

Q: He did not speak about whom? You never heard from him that he was saying: I want to kill him?

A: In those connotations of Yad Vashem and Kfar Shmaryahu I heard that if and if and if and if—he would want, this...

Q: Not that he would want, he would kill him, not want, let’s be precise.

A: He would want; I don’t know if he would kill.

Q: Not want, would kill, let’s make the distinction first of all.

A: To me he would say he would want to kill him.

Q: What does that mean, want?

A: Want.

Q: If he would get there he would kill him is that what he said to you.

A: If he would get there—I don’t know what would happen, he has security people, he has things, he wants.  It’s like if a person says to you—I want to meet...

And later (at p. 669):

Q: Whether outside—the law of Rodef does not interest me.  Did he tell you that he wants to murder Rabin? Once, three times, many, a few, never.

A:  Could be.

Q: What does it mean could be?

A: Could be, but not often, certainly.

The Appellant also said in her examination, that in the settlement of Ma’aleh Yisrael near Barkan—one day in June or July of 1995—she spoke with Yigal Amir and his brother Hagai Amir, as to the intention of Yigal Amir to murder Rabin (V/33).  Hagai Amir confirmed these things in his statement to the police.  In answering the question whether the Appellant knew of Amir’s and his intention to do harm to Yitzhak Rabin, Hagai Amir said: ‘Yes, she knew about my and Yigal’s ideas to harm Rabin’ (Statement of Hagai Amir was accepted into evidence as admissible according to the provision of section 10A of the Evidence Ordinance [New Version] 5731-1971).  There is no doubt therefore that Yigal Amir told the Appellant—not once or twice—as to his intentions to murder Yitzhak Rabin with his own hands.  The necessary conclusion of all this is that the Appellant knew well that in the opinion of Yigal Amir the law of Rodef applied to Rabin—meaning: that Yitzhak Rabin in Yigal Amir’s opinion, deserved to die– and moreover, that Yigal Amir intended to murder Rabin himself.

65.  In her testimony in Court the Appellant tried to diminish the severe significance of these words, describing Amir’s expressions as to his desire to murder Rabin as few, vague and qualified.  Thus, for example, the Appellant denied in her testimony in court that Amir said to her that he intends to kill the Prime Minister, claiming that he only said to her that he needs to be killed—in the abstract—or that he, Amir, wants him to be killed.  At the same time she admits elsewhere in her testimony that Amir told her that he himself wants to murder Rabin, although she tries to minimize the number of such expressions.  Thus, for example, the Appellant said in her testimony (at p. 668 of the transcript):

A: ... I said that he said, said, many times, that the law of Rodef applies to Rabin.  It could be that sometimes he also said that he wants.

Q: Wants to murder him?  What is wants?  Wants what?

A: Yes.

And elsewhere (at p. 677):

... [ ] there were between us many discussions as to the law of Rodef, and it could be that he would mention that he would at times say the wanting, I don’t remember the day...

And in another place (at p. 671):

Q: ... if he ever says to you, not only that the law of Rodef applies to Rabin but that he wants to murder him, yes or no?

A: I did say.

Q: You said.

A: It could be—that yes, but definitely not often.

And again, (at p. 671):

Q: ... you said to him that you would turn him in, to Yigal Amir?

A:  Yes, if I knew that he was serious.

Q: That... he intends to do it?

A: Yes.

Q: That he spoke of the fact that he intends, otherwise you didn’t need to think that he is serious or not, and to explain.

A: No, also because, not also because he spoke of it often, but no, I did not know then... one second.

Despite the attempts of the Appellant to detract from and to minimize the things that Amir said to her, a clear picture emerges from her own testimony, that Amir said to her many times that the law of Rodef applies to Prime Minister Yitzhak Rabin; and that he is to be killed and he himself, Amir, intends to do the act.

66.  From our end we will add the following: it is not a daily event—and it is not the custom in the world—that friends meet frequently, and in those meetings one of the two will say to the other that such and such a person deserves to die and that he is to be murdered.  And not only that such and such a person is to die, but that he himself the friend, seeks to do the act.  It is difficult to fathom that a person will say as much to a friend, and the friend, although he rebukes the inciter–will continue to be this person’s friend as though nothing has happened.  Moreover, we are not dealing with a group of felons, where one felon tries to convince another felon that a third felon is to be murdered, a rival from the underworld.  We are talking about a person from the community—intelligent people, educated people.  Such people, it is not their way to speak among themselves about murder as though it is a routine daily matter.  And if despite this they acted so, the Appellant and Amir, we know for ourselves that it will not be proper if we characterize those conversations—as the Appellant claims—as the routine conversation of a ‘fantasizer’, of a ‘macho’, of a braggart.

From theory to action

67.  The evidence brought before the Court has shown us that Amir  twice tried to accomplish what he said he would—to carry out his plan to murder Rabin and the Appellant knew about this after the fact.  Once was at ‘Yad Vashem’ and the second time at the dedication ceremony for the Kfar Shamryahu intersection.

68.  As for the ‘Yad Vashem’ event: in January 1995 Amir, the Appellant and other students drove to a protest in ‘Yad VaShem’.  Yitzhak Rabin who was supposed to take part in the ceremony dedicating a train car–did not make it because of a terrorist attack that occurred that day at the Bet Lid intersection.  The students were chased away and the protest did not take place.  On their return in the bus Amir said to those present that Rabin is dangerous to the nation, and that the law of Rodef applies to him and that he is to be killed.  Following these words, the people on the bus argued among themselves.

About four months later, in May 1995, Amir told the Appellant that he had meant to kill Rabin at ‘Yad VaShem’.  And in her words:

... in the month of Iyar or near then, Yigal Amir told me that when we were in Yad Vashem at the protest he wanted to kill Rabin...  probably he told me he had a gun but I cannot say specifically that I remember.

So too in her examination in Court (at pp. 584-585):

...  then he said to me—then, you know, when we were at Yad Va’Shem—if Rabin would have gotten there, you remember that protest?  If Rabin would have gotten there—I would have wanted to kill him.

The Appellant in her testimony describes these words of Amir as ‘some mixed up fantasy of making an impression of someone Macho or something like that’.

In another place (V/33) the Appellant said that she knew that Amir had a handgun in his possession and that he wanted to kill Rabin.  The Appellant knew—perhaps we should say: understood—that Amir planned to carry out the murder by shooting a gun.  And in the language of V/33:

She relates that around the month of Iyar when she spoke with Yigal Amir the latter told her that when they went on the day of the terrorist attack in Bet Lid to the protest at Yad Vashem he had a handgun in his possession and he wanted to kill Rabin who was meant to be at the place but due to the attack the planning failed as Rabin never arrived there.

As to Amir’s expressions in the matter of ‘Yad Vashem’ Justice Berliner said (at pp. 65-66) of her judgment):

... Yigal’s statements as to the law of Rodef, and as to the necessity to kill Rabin, were said repeatedly but the very repetition was nothing special.  The fact that four month later Yigal refers to the protest that they were both at and says he would have wanted to kill Rabin at that protest has no more substance, than his other statements as to the law of Rodef and the necessity to kill Rabin...  I agree on this point with the hon. Judge from the lower court that there did not need to be knowledge of the specific planning of the manner of execution of the felony, and that is not the test for the Appellant’s knowledge.  However, the knowledge, as said, must be real knowledge and a statement four months after the fact that at the time he had meant to do this, does not create real knowledge regarding the future.

I am sorry, but I have difficulty accepting these things.  My opinion is, that this specific and concrete expression of Amir as to the fact that he indeed intended to murder Rabin at a specific time and specific place—in particular against the background of his expressions that the law of Rodef applies to Rabin—is a real and specific expression as to his decision to act to carry out his plan and implement it in fact.  The future grows out of the past and the present, and a person does not change in one day.  The knowledge of an event from the past has decisive impact on the future, all the more so where the report that Amir made to the Appellant is to be seen and understood against the general background of his viewpoint that the law of Rodef applied to Rabin.  Amir’s statement to the Appellant as to what he planned to do at ‘Yad Vashem’—planned even if he was not able to accomplish it—clarifies that the Appellant knew about Amir’s concrete and substantive desire—a decision that had ripened in his heart—to murder the Prime Minister.

69.  As to the incident at the K’far Shmaryahu intersection: one  day in September 1995 Amir told the Appellant that the day before he had gone to the dedication ceremony of the K’far Shmaryahu intersection with the goal of killing Rabin, but when he arrived he didn’t find anyone there (V/42, V/33).  This report of Amir’s to the Appellant as to his specific intention to kill the Prime Minister at a specific place and at a specific event constitutes a very strong indication that the Appellant knew—and from close up—as to Amir’s plan and as to the realness of his intentions to murder the Prime Minister.  Thus, Amir is not just saying empty words, and his words are not just like the whistling wind which is soon gone.  He seriously means to carry out his plot, the intentions are real intentions.

Justice Berliner thought otherwise.  In her view, the information that was given to the Appellant by Amir is to be compared to the real information as to the planning of the murder in that location, and once we make this comparison we learn, in her view, that Amir’s report does not teach us of her knowledge as to his intention to murder Yitzhak Rabin.  In this matter Justice Berliner references the indictment filed against the conspirators—Amir and his brother, Hagai Amir—in which the details of the plan to murder Rabin at the K’far Shmaryahu intersection are described.  Justice Berliner summarizes the comparison, as follows (at p. 68 of the decision):

Thus: compared to the specific planning and conspiracy between the two defendants, which included references to the flyer concerning the visit that the Prime Minister was about to make to that location, early departure that morning to that location, drawing a diagram of the place and surveying access points, all that was claimed as to the Appellant was a statement after the fact by Yigal that he had intended to murder the Prime Minister, but that he arrived too late.

Why is there in these words, which on their surface reflect incompetence (as one would not think that one who is planning to carry out a murder would not ascertain in advance, what time the ceremony was to end) something to grant a dimension of realism to Yigal’s repeated statements as to the need to kill the Prime Minister, when the things are said after the fact?  If this statement is detached from the diagram, the plan, the gathering of information in advance, it does not even have a kernel of ‘hard’ knowledge, not even ‘hard’ knowledge that is created by willful blindness.

I am taking the liberty of disagreeing with the words of Justice Berliner.  As for our matter we are assuming that Amir planned to murder Yitzhak Rabin at the Kfar Shmaryahu intersection dedication ceremony.  From this we know that Amir’s report to the Appellant as to the event of the prior day—that he sought to murder Rabin then—was a true report.  If that was Amir’s report what reason is there to accept that the Appellant understood it differently than it was said?  And why wouldn’t we see in this knowledge a ‘hard’ knowledge (in the words of Justice Berliner)?  Moreover, against the background of the planning that occurred, what does incompetence have to do with anything?  The fact that the Appellant did not know the small details of the murder plan—unlike Hagai Amir, Amir’s brother—does not detract from the necessary conclusion, that the Appellant ‘knew’—in a real and specific manner—that Amir was plotting to murder the Prime Minister.  Indeed, as we said in the chapter on law and justice, in order to complete the offense of neglect to prevent a felony there is no need for knowledge of the details of the execution of the felony.  It is also no wonder that Amir did not report to the Appellant the details of the plan for the murder, as she was not as close to him as his brother.

Moreover, the indictment Justice Berliner quotes from speaks of early planning that conspirators planned among themselves to implement the act of murder.  This early planning is described in detail in the indictment, as required. In our matter, on the other hand, Amir reported to the Appellant that he intended to murder Yitzhak Rabin the day before.  What point would there be to report to her the details of the advance planning?  Indeed, my view is that if the report that Amir made to the Appellant is not ‘knowledge’ as per its meaning in section 262 of the Penal Law, than I don’t know what ‘knowledge’ is.

Let us not forget, that the event of the Kfar Shmaryahu intersection was about four months after Amir reported to the Appellant about the non-incident at ‘Yad VaShem’.  It is presumed that the Appellant, as an intelligent person—although young—knew how to and indeed did tie the one to the other, and concluded from them the one and only conclusion that can be drawn from them, that Amir intended to murder the Prime Minister and that he was very serious in his intentions.  Against this background we cannot, of course, accept the theory of the Appellant that she thought in good faith that Amir’s expressions were ‘rubbish’ and ‘tall tales’.

70.  Indeed, Amir’s report to the Appellant as to the events of the Kfar Shmaryahu incident, when added to the report as to ‘Yad Vashem’ endowed the Appellant with the knowledge—clearly—that Amir had deeply penetrated into the world of action, and that he intended to join action to thought.  The Appellant knew earlier that Amir was plotting to murder the Prime Minister; and now he assisted her and showed her that his words were not just meaningless words, floating words, in the world of theory; that his desire was real and concrete; that his plans were real plans.  We cannot accept the Appellant’s explanation that she thought that Amir’s statements were all figments belonging to a world of fantasy and imagination.  Twice Amir intended to murder the Prime Minister and for technical reasons he was unable to.  Amir reported this to the Appellant—on two separate occasions and over a span of several months—and we find it difficult to accept that these reports did not sink in to her heart and did not bring her to ‘knowledge’.  Is it an everyday event that Reuven tells his friend Shimon, that he intended to murder Levi at a certain time and certain place (the day before)?  All the more so that Reuven’s report to Shimon came against the background of prior conversations that took place between the two, conversations in which Reuven said to Shimon—over and over—that Levi is deserving of the death penalty.  Even if we were to say that until the reports of ‘Yad Vashem’ and Kfar Shmaryahu it was all theoretical and uncertain—and we have not said so—then these specific reports changed the theoretical and uncertain to concrete, clear and known: Amir is about to murder the Prime Minister; he wants to; he intends to carry out his intention; here he is going to actually carry out the murder.

71.  To complete what we have said to this point we will further add that Amir held a (Baretta) handgun in his possession.  The Appellant knew of this, and at a certain opportunity she even held it and cocked it.  As to the event at ‘Yad Vashem’ the Appellant said (in her questioning at the Security Services) that Amir said to her that he had a handgun with him at that place, and that he sought to kill Rabin (V/33).  In her questioning at the police (V/42) the Appellant said as follows:

When we were then at Yad Vashem at the protest he wanted to kill Rabin...  Yigal probably said to me that he had a handgun but I cannot say specifically that I remember.

And at Court she commented as to ‘Yad VaShem’:

... this person would always carry a handgun, so it could be that he also went there with a handgun.

We thus know: Amir had a handgun; the Appellant knew about it, and at a minimum she connected between Amir’s expressions as to his desire to kill Rabin and the handgun that he held in his possession.

The Approach to Rav Aviner

72.  About a month before the murder—and after she spoke with Amir on the topic of the law of Rodef—the Appellant approached Rav Aviner, the Rabbi of the settlement of Beit-El, a settlement in which she lives, and asked him about the law of Rodef in general, and in particular whether the law of Rodef applies to Yitzhak Rabin.  The Appellant further asked Rav Aviner, if ‘in this case’ she must report to the authorities as to a person who claims that the law of Rodef applies to Yitzhak Rabin, as ‘he wants to carry something out and thereby becomes a Rodef himself’.  The rabbi responded negatively to the two questions, meaning: the law of Rodef does not apply to Yitzhak Rabin, and there is no need to report to the authorities as to a person who claims that the law of Rodef applies to Yitzhak Rabin. (V/16).

The fact that Appellant approached Rav Aviner and the specific questions that the Appellant presented before the Rabbi, prove that the Appellant was seriously apprehensive that Amir might carry out his plot and murder the Prime Minister.  Let us remember that this approach to the Rabbi took place after the many discussions that took place between the Appellant and Amir: as to the application of the law of Rodef to Yitzhak Rabin; as to the desire of Amir to murder Rabin and after Amir reported to the Appellant on the non-events of ‘Yad Vashem’ and the Kfar Shmaryahu intersection dedication ceremony—places where he intended to murder Yitzhak Rabin.  When questioned as to her approaching Rav Aviner, the Appellant understood well that her going to the Rabbi put her in a difficult situation, and therefore she tried to extricate herself from the corner she was trapped in.

Thus, for example, the Appellant claimed that her approaching the Rabbi was intended to provide her with theoretical arguments for debates with Amir, and in any event that the approach does not teach us that she thought that Amir was serious in his intentions.  When asked why she asked the Rabbi whether she had to report to the authorities someone who claims that the law of Rodef applies to Rabin, she responded ‘so that they will know that there are people who are speaking this way’.  This answer is an empty vessel and should be dismissed; on the contrary, the approach to the Rabbi not only refutes the Appellant’s version, but it testifies that the Appellant knew of the Appellant’s plot; that she believed that he might carry out his plot, and she was apprehensive, to the point that she asked the Rabbi if she should report to the authorities as to that person who ‘wants to carry something out and thus becomes a Rodef himself.’  There is no debate that in asking the Rabbi what she asked the Appellant was referring to Amir—even though she did not give away his name—and hence we know what her suspicion was and what she knew about Amir’s plots.

Understanding how incriminating this discussion of hers with Rav Aviner was, the Appellant tried to distance the date of the conversation from the date of the murder.  And so, when questioned she claimed that she spoke with the Rabbi about a year before the murder, but at the end of her examination she recanted and sought to note that the conversation took place ‘recently’.  In her testimony in Court the Appellant claimed that she did not remember the date of the conversation, and later in her testimony she said that the conversation took place after the month of Iyar but before the months of June-July.  In his cross examination Rav Aviner responded to the question and answered that the conversation between him and the Appellant took place about a month before the murder.

Rav Aviner testified before the Court as a witness for the defense, and according to him (in the primary examination) he understood that it was none other than an academic-ideological discussion.  In cross-examination the Rabbi admitted that he did not remember the details of the specific conversation with the Appellant and that his words constituted mere speculation.  Be the Rabbi’s theory what it may be, we know the real background for the Appellant’s discussion with him—even if the Rabbi did not know—and the necessary conclusion from that conversation is clear to us: the Appellant knew that Amir was serious in his intentions and in his plans to murder Yitzhak Rabin, and in distress she approached a clergyman and asked for his help.

And More

73.  One day in the month of June or the month of July 1995, Yigal Amir, his brother Hagai Amir and the Appellant were at the settlement of Ma’aleh Yisrael, and at that time Yigal Amir suggested to his brother Hagai—in the presence of the Appellant—that the Appellant ‘keep watch’ on Yitzhak Rabin, and in order not to arouse suspicion she should dress in ‘non-religious clothing’.  In her testimony in Court the Appellant added that the suggestion came after Yigal Amir said that the law of Rodef applies to Rabin and that he should be killed.  Hagai Amir responded to his brother Yigal Amir ‘c’mon c’mon forget your stupidities already.... it is not practical’.  The Appellant said she laughed at Yigal Amir’s suggestion and that ‘even Yigal said it half kiddingly’ (V/42).  According to her ‘everyone there laughed after that, I was not the only one who laughed, he said it as a dig at me, it was not...’ and in explaining the reason for the laughter she added ‘I always argue with him about it, so that I would get up and keep watch, and in non-religious clothing no less?’

I am willing to agree that the suggestion of keeping watch in ‘non-religious clothing’ was said partly in jest; not so the statement of Yigal Amir—a statement which joined many more statements—that Rabin should be killed, and that ways need to be found to get to him.

74.  In the end, immediately after she heard about the murder on the radio, the Appellant called the home of Amir and as to this phone call she says (V/19):

… I called to discuss this with Yigal and I did have a small concern because they said it was a short young man from Herzeliyah and Yigal did say in the past that Rabin should be killed...

This phone conversation—against the background of the events until that point—reinforces the conclusion that the Appellant knew as to the serious intention of Amir to murder Rabin.  In her testimony in Court the Appellant tried to minimize the significance of this conversation, and in so doing sought to give various explanations—including explanations which contradict each other—for the reason for the conversation.  I do not intend to go through these explanations, as against the background of the events that took place up to the day of the murder this conversation makes sense: when she heard about the murder the thought went through her mind that Amir is the murderer—as he himself told her that he wants to kill Rabin—and therefore she called him to check into this.  Moreover, when the Appellant was asked whether she would have called Amir if he knew the murderer was from Jerusalem, she responded on the spot (V/41):

Yes, I would have asked him ‘so how do you feel that your work was done for you’?  Cynical questions like that.

The Appellant confirmed this statement in her examination in Court (at p. 712 of the transcript) and here we have an additional aspect of her knowledge of Amir’s malicious thoughts.  Indeed, the Appellant would have asked Amir a question in her words—a rhetorical question—knowing that others ‘[]did [his] work for him’.  There is no need to expand on the meaning of that ‘work’.

The Appellant’s version—the shock version

75.  The Appellant stuck to one version from the day she was arrested until the conclusion of the proceedings in her trial: she did not believe Amir’s words; she did not take what he said seriously; she considered him a ‘fantasizer’ and braggart; it did not occur to her even for a minute that Amir intended what he said seriously, that one day he would get up and murder the Prime Minister.  In the words of the Appellant:

...  I did not for a moment think that this person would really do something, that he really wants to do something.  If he said wants or wanted it is like, as though—yes, he wants to meet President Clinton, I never once thought that he really, that he really would do it, it is not, like, he really intended, he even did not... never spoke to me of any plan, any planning, nothing, like it was always an argument... (At p. 576 of the transcript).

The Appellant’s counsel further provides the psychological background to these words of the Appellant: the friendship that was formed between her and Amir blinded her from seeing the reality as it was; she experienced self deception, repression and self-convincing, that the person close to her—Yigal Amir—does not seriously intend to carry out the felony he is constantly talking about.

Justice Lidski dismissed the version that the Appellant did not believe Amir, that she saw him as a ‘fantasizer’ and that his expressions were in her opinion only boasting.

76.  Against the background of the chain of events that we described above, our opinion is the same as the opinion of Justice Lidski.  Indeed the accumulation of events one upon the other does not leave a reasonable possibility other than this version, that the Appellant knew that Amir was planning to commit a felony; meaning, to murder the Prime Minister Yitzhak Rabin.  We dismiss the Appellant’s version as unreasonable, a version that has no real basis in the evidentiary material.  All of the indications—the many conversations as to the law of Rodef and the need to kill the Prime Minister; explicit declarations by Amir that he will murder the Prime Minister; Amir’s report as to his intentions to murder the Prime Minister on two specific occasions; the approach to Rav Aviner about a month before the murder—all these indications—these and more—leave no room for reasonable doubt as to the Appellant’s knowledge as to Amir’s plot.  The Appellant believed Amir, she was not dismissive of him, she did not see his words as boasting.  Justice Lidski establishes in the decision that she did not believe the explanations, or should we say excuses—of the Appellant as to why she did not ‘know’ as to Amir’s malicious intention.  After analyzing the facts of the case—detached from Justice Lidski’s determination that she did not believe the Appellant’s words—we accept what she said.

Indeed, closeness to a person can blur reality and at the same time build an imaginary reality, however, all this in proportion, in accordance with the evidentiary material brought before the Court.  The indications as to Amir’s intention to murder the Prime Minister were so numerous and so weighty, that even the close friendship the Appellant claims, does not have the power to blind a person’s eyes, make him deaf and close his heart.

Interim comment

77.  As we said in the beginning of the analysis of the facts, we will first address the core facts—the facts which prove that the Appellant knew of Amir’s evil plot.  This we have done.  We will now discuss some peripheral subjects, which are subjects that do not touch directly on Amir’s plot to murder the Prime Minister, but they help portray Amir’s extreme personality and strengthen the necessary conclusion from the core evidence that the Appellant knew of Amir’s plot, took his words seriously—just as she related seriously to the words we will relate below—and did not see him either as a ‘fantasizer’ or a mere braggart.  The Appellant saw Amir as one who seriously intends the things he says and as a man of action.

The Appellant knew of Amir’s extreme views; she knew up close his plans and his plots, and even confronted him during many arguments they had between them.  The Appellant knew of all this and was concerned about his extremism and the actions that he was capable of.

The underground

78.  Amir proposed to the Appellant to join an underground he sought to set up—an underground whose purpose would be to provide means of defense to Jewish settlements in the territories in the event of an IDF pullback—but the Appellant refused.  The reason for the refusal, in her words: ‘[she] hesitated to join him, as he was far more extreme than her and her views were not violent and she would not agree to activity of the type he wanted to carry out’ (V/33).  And elsewhere (V/42):

I said to Yigal that I am willing to join the underground on the condition that the underground would undertake non-violent activity only and I said that I don’t rely on him (Yigal) and I told him that I would not set up an underground with him in any case as his views are much more extreme than mine and I told him that I wouldn’t want that if we belong to the same group and I do my non-violent things and he without my knowledge does much more violent things then even if I do non-violent things I will not agree that my name be attached to extreme activity...

And the Appellant said further (ibid) ‘I don’t rely on him because Yigal can do things I don’t agree with’.

Let us think: the Appellant does not agree to join Amir in setting up an underground not because he is not serious in his plan and not because she does not believe him: quite the opposite, she is concerned about the activity Amir will undertake in this framework.  Amir is not a ‘fantasizer’ or a braggart; Amir is a dangerous man, and the Appellant is concerned that he will do things that should not be done.  That is how the Appellant relates to Amir as to the underground, and there is no good reason to think that she saw his plan to murder Prime Minister Rabin otherwise.

The Appellant thus knew of Amir’s extreme views, and because she attributed to them realness and seriousness she was concerned lest he give these opinions concrete expression.

The armory

79.  Amir told the Appellant about the plan to steal weapons from armories; to exchange weapons among various settlements and all in order to impair the ability of the authorities to locate weapons that residents of the settlements could use when the need arose, in response to attack by Arabs.  The Appellant understood that Amir intended to store weapons in his possession.  To create that stash Amir asked the Appellant where the armory was in Beit-El—where she lived—and according to her testimony in court she purposely told him the wrong location for the armory.  She also lied to him as to the manner of guarding of the armory.  In her testimony she explained that she lied to Amir:

So he wouldn’t bug me, simply in order to get him away from me I told him the repository was near the gate... I told him this just in order to get him away from me, to get him to leave me alone with his craziness, it was clear he had no intention.

Indeed so?  The Appellant’s explanation does not hold up.  If indeed Amir was weaving dreams and fantasies; if indeed he was being carried on wings of imagination; if indeed he did not intend what he says; why deceive him, he is at any rate not a person whose actions will cause danger? Rather one must say: the Appellant well knew that Amir seriously intended to carry out his plans, that he was a person who knew how to join action to thought.  This lie that she lied to him constitutes strong evidence that the Appellant related seriously to Amir’s intentions.  Providing false information—intentionally—makes perfectly clear that the Appellant believed that Amir was indeed about to carry out his plans, and out of concern lest he join action to thought, she misled him as to the location of the armory in Beit-El.  It is superfluous to explain how this factor impacts our matter—and directly.

Preparation of bombs

80.  In the framework of the organizational activity we discussed, in May 1995, Amir approached the Appellant with the question if she knows anyone who specializes in the sciences; when the Appellant responded that she knows Dr. Bachrach, Amir asked that she approach Dr. Bachrach with the request that he assist in preparation of bombs.  The Appellant refused, told Amir to approach him himself, if he wants to, and added that she wants no ‘connection to his dealings’ (V/33; V/42).  In her testimony in court (at p. 605 of the protocol) the Appellant said that she was angry with Amir:

That he set me up like this...  in this matter of like you come and ask me something, something like that, like, do I know any scientists, and suddenly he tells me—I want, I want you to approach him to prepare bombs.  To help me make bombs.  Suddenly I understood what he was thinking about when he said underground, and I told him—like...  me, leave me alone, leave me alone with this nonsense, I am not...  what are you even talking about?

Even if in the beginning the Appellant did not know why Amir wanted to contact a man of science, soon thereafter she knew why he needed one, meaning to prepare bombs:  ‘suddenly I understood what he was thinking about when he said underground...’  This was in May 1995, and then the Appellant already knew where Amir was headed.

This knowledge as to his desire to prepare bombs plus the knowledge of his desire to set up an underground and her refusal to help him due to her apprehension as to his actions; her misleading of Amir as to the location of the armory in Beit-El—all these run counter to the Appellant’s version that she saw Amir as a braggart and that she was supposedly dismissive of his plans.

81.  Justice Berliner writes that these three—the matter of setting up the underground, the episode of the armory, and the approach of Dr. Bachrach—do not have reflect on the issue of the murder.  And she says as follows in her judgment:

... the matter of the underground and the desire to collect weapons has no direct ramification on the matter of the murder.  At most, it can perhaps be deduced from this as to the seriousness of Yigal’s intentions in general but not necessarily the specific plan to murder the Prime Minister.

And these are the words of the Appellant’s counsel (at p. 78 of the summations):

Even if it were possible to learn from these as to Margalit’s knowledge of the seriousness of Yigal Amir’s intentions, this was seriousness as to the establishment of an underground whose purpose was defense against Arab hooligans.  It is clear that there is no connection between this plan of an underground whose purpose was protection of settlements and the plan to murder in cold bold the elected Prime Minister.  Meaning that even if Margalit had attributed to the weapon stealing plan of Yigal Amir a dimension of seriousness, it could not be learned from this as to her attitude to his views as to Prime Minister Rabin, may his memory be a blessing.

From a narrow perspective on the matter—in examining the plan to murder the Prime Minister—there is no doubt that Justice Berliner was correct and the Appellant’s counsel is correct in his arguments.  However, our matter now is not Amir’s plans—as such—but the personal attitude of the Appellant to him and the question how she thought of him.  Her response to these three plans of Amir, clearly teaches that the Appellant did not see Amir as a ‘fantasizer’ and braggart; she believed his plans; she related seriously to the ideas he brought before her.  Why would we say that she related seriously to one plan—for example: the bombs plan—but not to another plan—the murder plan?  Indeed, these plans were indeed different from one another, however, not to the point that she would believe one without reservation and without doubt and the other she would see as the boasting of a braggart.  We have no difficulty noticing that the other plans are also extreme plans—setting up an underground, stealing weapons, preparing bombs—plans that entail violence and breaking the law.  Indeed, the Appellant herself admits that she saw Amir as a man extreme in his views, an extreme person working to advance his plans, and for this reason she even tried to dissuade him—again and again—from thoughts of killing the Prime Minister.  Against this background, it is difficult to accept her explanations that as to the malicious plan to murder the Prime Minister, here suddenly she saw it as empty words.  In any case, we are not speaking now of anything other than general background to the plan to kill Rabin, and this background fits together well with the plan, in drawing a picture of a man extreme in his views, a man who is not deterred from conceiving law breaking thoughts and from taking real steps to achieve his goals.

The discussion with Avishai Raviv

82.  On 7 November 1995, three days after the murder and the day after she was arrested, Avishai Raviv was put–as someone supposedly under arrest—into the room where the Appellant was held with the goal of encouraging her to speak.  The conversation between the two was taped and transcribed (V/24; N/8).  This conversation is not mentioned at all in the judgment of the Magistrate’s Court, and Justices Berliner and Hammer commented on this in the District Court—and they rightfully commented—that this absence is to be regarded as a serious defect in the judgment.  The Appellant’s counsel also discusses this at length in his arguments before us, and it is therefore our duty to relate to this conversation and explain it.

83.  Reading the transcript of the conversation between the Appellant and Raviv—so claims the Appellant’s counsel—clearly proves that the Appellant knew nothing of Amir’s plot to murder Rabin, and that the act of murder shocked her.  That same claim was made in the court of first instance, and the argument was accepted by Justice Berliner.  According to Justice Berliner, the Appellant’s words in that conversation are words that are characteristic of a person who hears that someone whom they know committed murder.

Justice Berliner writes: ‘the matter of the shock can still be reconciled in that, knowledge of planning is not the same as knowledge of the action’ (p. 47).  However other statements of the Appellant point clearly, in the opinion of Justice Berliner, to surprise as to the carrying out of the murder.  Thus, for example, the Appellant’s statement that the Amir of before Saturday night is not the same Amir after Saturday night shows that the Appellant did not take Amir’s words seriously, and is not consistent with statements that we would expect to hear from someone who clearly knew that her friend is planning to commit a murder.

Justice Hammer and Bayzer thought otherwise.  Justice Bayzer establishes that the shock expressed by the Appellant in her words is not the shock of one who did not know; the shock is of one who knew, but now must deal with the act of murder as an established fact.  ‘...knowledge itself does not preclude surprise’ in the judge’s words.  And later (at pp. 83-84):

What was in the realm of a plan, plot, conspiracy, and wish... suddenly becomes a flesh and blood victim, a wave of arrests in her immediate surroundings, a murderer and a murdered and tangible death.  Just as at times, in cases of severe illnesses, the knowledge of the impending death does not detract from the shock which strikes upon its arrival, so too the knowledge as to an expected taking of life, does not reduce the surprise that comes with the commission.

Justice Hammer was also of the view that the Appellant’s shock is to be understood against the background of her objection to his opinions and her difficulty in digesting the reality.  In the opinion of the judge, the commission of the plot triggered within the Appellant—after the fact—an emotional mechanism of repression and self-persuasion, and this mechanism caused her to think that she did not believe Amir, from the very beginning, when he told her of his desire to kill Rabin. In the words of Justice Hammer (at pp. 102-103 of the judgment):

... as I understand her statements, she activated an emotional mechanism of repression, when the awful action that devastated the country was carried out.

...

... her desire to defend herself is understandable, even by retroactive self-persuasion, that indeed she heard but did not believe; heard but thought he was a fantasizer and not serious.

84.  During the course of the discussion between Raviv and the Appellant, the Appellant said, inter alia, the following:

... we are in shock, his friends is in shock...

... that we would argue like why would I need to think he would go and do such a thing we sat like even many times, it is true, like it is not Yigal it is not one who I always took all these incidents with limited trust… not just cynicism but like moments of how should I say this like exaggerations all the words were like just to make you think like an actor.

I didn’t recognize him like suddenly there is a disconnect Yigal until Saturday night Yigal Saturday Night not like it still isn’t absorbed by the mind… it’s not Yigal like it’s not…  I don’t want to speak because there are enough people who know him and such.

But what there is to break me like what… they say like Yigal said that I knew of his attempt and the like, do me a favor.

That is it you know if it was somebody else then it would all be so clear for me and all but it is like your friend is the one who did it, it is a shock it is not… not you understand then because if we say that it was my friend I don’t know if like I don’t know what I would say about it like because it is my friend that means that truly…  You understand but like this I know that I would relate to the whole incident completely differently if it was somebody else, then it is simple.

The Appellant’s counsel relied on these words with the full weight of his arguments.  According to him these statements are evidence of the shock that overtook the Appellant and these statements contain resounding proof that she did not know that Amir was plotting to murder the Prime Minister.  The Appellant—so argues attorney Weinroth—spoke freely with Raviv and honestly revealed what was in her heart.  Her words are to be accepted at face value, and the necessary conclusion is that she did not know of Amir’s plot.

85.  Reading the transcript on its own—detached from rest of the body of evidence—indeed may lead the reader to the general conclusion that the Appellant was in shock.  However, the question in our matter is, how should we interpret this shock, and whether we accept the argument of the Appellant’s counsel that the shock points—if only by way of doubt—to the fact that the Appellant did not believe that Amir seriously intended to carry out his malevolent plot.  My view is that that conversation between Raviv and the Appellant is not sufficient to erode the large amount of evidence—very large—immense, heavy and solid which demonstrates clearly that the Appellant knew well of Amir’s plot and believed that he intended to carry out his evil plot.

The Appellant’s counsel is correct in his argument that where the body of evidence is subject to one interpretation—an incriminating and inculpatory interpretation—and is also subject to other interpretations—alleviative and exculpatory—one does not convict a person criminally on the basis of the one interpretation.  However, in our matter, the interpretation of the shock as evidence that the Appellant did not at all imagine that a terrible and horrible incident such as this incident would occur is a clearly unreasonable interpretation when it is held up against the evidence—very weighty evidence—which we discussed above.  We agree with Justice Bayzer—and in our view that is the reasonable interpretation of the Appellant statements in her conversation with Raviv—that the Appellant was in shock when in front of her eyes  words became reality and an evil plot that a person plotted in his heart became a horrible reality.  The Appellant knew of the evil plot, but went into shock when she discovered how words lost control and empty words became harsh reality.  As Justice Bayzer wrote: even the death of someone close to us after a severe illness, a death that is expected and known in advance—when it arrives we are shocked and numbed.  Here too, the hope that Amir would not carry out his evil plot ran through the Appellant’s mind, and when the rupture came—the frustrating her expectation—the Appellant went into shock.  However, that hope—if it existed—was not sufficient to minimize the knowledge that the Appellant was touched with.

86.  There is an additional possibility—a possibility reasonable on its own—for interpreting the Appellant’s statements in her conversation with Raviv.  Review of the evidence raises the possibility that the Appellant suspected that Raviv was cooperating with the Security Services and in thinking so she presented him with a picture different than the truth.  Interpreting things in this way is not unrealistic.

In her interrogation at the Security Services the Appellant mentioned the rumor that she heard that Raviv was cooperating with the Security Service.  And in the language of the memo that was prepared after the conversation with her (V/39):

During the course of the interrogation the person being interrogated noted that she suspects Avishai Raviv that he is connected with the Security Services.  In her words she said she does not believe this but Yigal thinks so and that is being whispered in Kiryat Arba.

In her examination in court (at p. 746) the Appellant repeated that someone from Kiryat Arba told her that Raviv is an agent of the Security Services.  She did not remember when it was said to her, but she did not believe this.  The Appellant repeated this suspicion that Raviv was an agent of the Security Services in her examination in court, and in her words:

I did not believe it… when they brought him into the room I did not think about it, and the conversation went on and on, and then I said in the last stages of the conversation, maybe, and I still did not believe it… (At p. 745 of the transcript).

The Appellant further stated as to her conversation with Raviv:  ‘while I was sitting [under arrest], only then did the shadow of suspicion arise in me, but even then I did not believe it at all’.  The Appellant was asked in her examination in court whether she suspected Raviv, and to this she answered (at p. 747 of the transcript):

Not at the beginning of the conversation.  I am saying toward the end they did not arrive and did not arrive, and I said, oh brother, again, but it doesn’t matter, I didn’t believe it at all.  I started to suspect but I didn’t believe it.  It seemed so illogical e, and it really isn’t logical and I believed her, and suddenly after the conversation, straight after the conversation, they brought him to me crying, that really is suspicious.

When asked again about her suspicion of Raviv, she answered as follows:

In the last months yes, but again, it did not reach the level of belief that I really believed it.  I believed it only when they suddenly brought him to me crying…

From all this we can conclude that the Appellant knew that some suspected that Raviv was an agent of the Security Services and it seems that this thought did not leave her.  Indeed, according to her, she did not believe the rumors she heard, however, it is reasonable to presume that somewhere in her mind there was some suspicion.  This suspicion was sufficient to put her on her guard not to reveal to Raviv the true feelings in her heart.  And indeed, reading the transcript of the conversation that took place between her and Raviv will clearly teach us that the Appellant did not reveal to her interlocutor all of the knowledge she had collected in her heart; thus, for example, she did not tell him about the non-incident of ‘Yad Vashem’ nor about the non-incident of the Kfar Shmaryahu intersection.  Not about these non-incidents and not about the many times that Amir told her he intended to murder Rabin with his own hands.

87.  Either way: the evidence that was brought as to the ties between the Appellant and Amir—particularly in their cumulative weight—are unequivocal in their direction and meaning.  They point clearly to the fact that the Appellant knew—knew well—about Amir’s plot to murder Yitzhak Rabin, and the Appellant shock upon hearing about the murder does not diminish the value and weight of that incriminating evidence.

Additional arguments raised by the appellant

88.  Alongside the Appellant’s version that she did not believe that Amir indeed intended to carry out his plot, her counsel attorney Weinroth raised additional claims on her behalf, and we will discuss these briefly.

The Appellant did not Report to the Authorities as to Amir because she did not Know

89.  The Appellant claimed in her questioning–at the Security Services, in the Police and in Court—that were she to seriously think that Amir intended to carry out his plot, then she would have reported this to the authorities.  Moreover, she even said this to Amir on several occasions.  Thus, for example, in response to Amir’s proposal that she join the underground organization:

… and I told him that it should be clear to him that I will turn him in if he does something extreme.  I am going to fix it if I know that he is about to do something extreme (V/42).

This is also how she reacted to Amir’s proposal to keep watch in non-religious clothing:

… I always objected to his view and I brought him all the possible reasons and I told him that if I would know that he is going to kill Rabin I would turn him in… (V/42).

The Appellant said similar things in court (for example at p. 574 of the transcript).  The necessary conclusion is, according to the claim of attorney Weinroth: if she believed the words of Amir the Appellant would have reported Amir to the authorities, a sign and proof that she did not believe his words.

This argument turns things a bit on their heads.  The evidence, as we have seen, points clearly to the fact that the Appellant knew of Amir’s plot, and hence her words—that she would report him to the police— are to be interpreted as words from a friend to a friend or father to son.  In other words, that same threat—that turned out to be an empty threat—can be reasonably assumed to have always been an empty threat, and the supposed threat was not made other than in order to dissuade Amir from carrying out his plot.  There is nothing therefore in that threat to point to the fact that the Appellant did not know of Amir’s plot; it is even possible that the opposite is true.  How so?  The very threat that she would turn him in to the authorities testifies better than one hundred witnesses that the Appellant took seriously Amir’s words as to his malicious plot.  As if he was just a ‘fantasizer’ why would she threaten him?  Moreover: the Appellant claims—and we accept what she says—that she warned Amir repeatedly about his malicious plot.  And, according to her statement to the police (V/41):

I always told him it was prohibited, prohibited to do such a thing…  a thousand people heard him speak this way, who thought that that is what he was going to do…  I told him not to do this.

As we have shown in our words above, it is not correct to say that ‘a thousand people heard [Amir] speak this way’, meaning: it is not correct that a thousand people heard Amir speak as he spoke personally to the Appellant.  However, the very fact that the Appellant saw fit to warn Amir in the way that she warned him, teaches that she feared him; that she saw him as expressing serious thoughts; that she ‘knew’ that he means the things he says.  Since if she did not fear him, if she did not see him as a serious person—why did she warn him?  Moreover, non-reporting is not evidence of lack of knowledge.  A person has to overcome difficult emotional barriers before he turns a person close to him in to the authorities.  And also, if the Appellant seriously meant her words as to turning him in, then her legs did not take her to that place to which she needed to go.

The public aspect

90.  The Appellant’s counsel goes on to argue: Amir revealed his extreme views in public and did not keep them concealed, and as it is not normal for a person to inform the general public of a murder plot he is plotting—it is presumed that one who plans a murder will take care to do so secretly and quietly—it is no wonder that the Appellant interpreted his words as expressing, indeed, his extreme views but not a true planning of murder.  Moreover, so attorney Weinroth adds, it is incumbent upon us to remember that in those days the atmosphere was saturated with statements similar to the statements that Amir expressed, and therefore it is reasonable to presume that his words were not absorbed in the consciousness of the Appellant as words of substance.

This argument is dismissed, if only because it ignores the large gap between what the Appellant heard and knew and what others heard and knew.  Indeed, Amir did not hide from the general public that the law of Rodef applies to Rabin and he is to be killed, however, the Appellant knew much more than this: she knew—and the greater public did not know—that Amir, he himself, sought to murder Rabin, and she knew—and the greater public did not know—of the incidents of ‘Yad Vashem’ and the Kfar Shmaryahu intersection.  To the contrary, because he trusted her—her and not all those who surrounded him—Amir revealed his deepest secrets to the Appellant, and for that reason specifically the Appellant could have concluded that his statements were serious and they reflected his real intention.  Attorney Weinroth’s argument is correct, as Amir’s partners to the malicious plot—his brother Hagai Amir and Dror Adani—knew minute details about the murder plan while the Appellant did not know of the plot except in a general way. However, the fact that the other conspirators knew more—this fact per se—does not detract from what the Appellant knew of the plot, and she well knew of the plot to murder the Prime Minister.

The statement that after the ‘Oslo II Agreement’ Rabin’s death will not help

91.  In the month of October 1995 a demonstration was held against the ‘Oslo II Agreement’ and according to Appellant Amir said to her then:

That is it, now even if Rabin dies, it’s already not…  this will already not help, meaning—the things were determined, and there is no longer, in terms of…  is not, this, it terms of this, there is nothing that will help (at p. 579 of the transcript).

And elsewhere (at p. 722 of the transcript):

…  in June he told me I am fed up of arguing with you, and we stopped arguing on the topic, and even in this demonstration against the Oslo II Agreement, I don’t know from what, it could be from despair that he said to me like, this is it now, even if he dies it won’t help.  He told me this unequivocally.

Amir therefore abandoned his plot, so argued attorney Weinroth; what therefore was the Appellant to report to the authorities?

This argument does not persuade us.  Even if we believe these words, meaning: that since the demonstration that took place in the month of October the Appellant was of the view that Amir abandoned the murder idea—and we have not said so—even so this does not rescue her.  The Appellant knew of the murder plan before that date; she heard Amir tell her that he was planning to murder Rabin; she knew of the incidents of ‘Yad Vashem’ and Kfar Shmaryahu, and in her great confusion—apparently in the month of October 1995—turned to ask the advice of Rav Aviner.  From all this we know that at that time the Appellant believed what Amir whispered in her ears as to the plot to murder Yitzhak Rabin; she knew and believed and nonetheless did not report to the authorities.

We will further comment in this context, that we take issue with Justice Berliner’s theory that it is incumbent upon us to determine precisely the date in which the ‘knowledge’ took shape in the mind of the Appellant.  Not so.  The Appellant’s ‘knowledge’ as to Amir’s plot—the ‘knowledge’ and the fact that she believed that he is plotting to murder the Prime Minister—developed gradually as a result of her acquaintance with Amir, and there is no doubt that somewhere in the period beginning in July of 1995, the Appellant was aware of the intention of murder that nested in Amir’s heart.

The appellant’s young age

92.  At the time these events took place the Appellant was approximately nineteen years old.  Attorney Weinroth argues, that her young age—together with her lack of experience—reflect on the ability of the Appellant to know and understand the true situation and deduce from that situation what an adult person might have concluded. This argument is true, in principle: age and experience affect understanding, knowledge and the ability to draw conclusions.  However, in our matter, the Appellant’s young age did not prevent her from understanding what needed to be understood.  Justice Lidski, who saw the Appellant and received a direct impression of her, noted the qualities of maturity which the Appellant had, and wrote about her as follows (ibid [23], at p. 409):

A picture is forming of a young woman, with firm ideas, smart and intelligent—and aware of these qualities of hers, who knows how to stand up for her rights, does not lose her wits…

Indeed, the young age of the Appellant may be a proper consideration, but that is for the determination of the sentence.  And indeed as Justice Lidski noted in the sentence, she incorporated in her considerations the young age of the Appellant, as otherwise she would have sentenced her to a more severe sentence than the one she sentenced her too.

Amir’s non-testimony

93.  Yigal Amir was not called to testify by any of the parties.  Attorney Weinroth argues that Amir’s not testifying on behalf of the prosecution strengthens the defense’s version.  On the other hand the prosecution argues the opposite: Amir’s not testifying on behalf of the defense strengthens the prosecution’s version.  I say: neither is true.  Indeed, it is possible that the non-testimony of a witness may speak—at times cry out—against the version of that party that could have brought a certain person to testify, could have—and refrained from doing so.  See for example CrimA 728/84 Hermon v. State of Israel [16] at p. 625; CrimA 437/82 Abu v. State of Israel [17] at pp. 97-98.  Not so in our matter, where each of the parties could have thought in good faith that Amir’s testimony could not contribute to clarifying the questions that are in dispute.

The words of the Court in CrimA 277/81 Halevi v. State of Israel [18] on which the counsel for the Appellant relies do not affect our matter, in my view.  In that matter the Court, in the words of Justice D. Levin, said the following (at pp. 386-387):

… the core approach is that the accused, who seeks to save himself from criminal prosecution, may, within proper boundaries, choose a tactic for himself in conducting the trial, which will not assist in his incrimination and will not advance his conviction.  Not so, in my view, when speaking of the prosecution; the latter asks the court to determine that a certain person violated the law… this being so, the court expects the prosecution which represents the State, not to trip him up in hiding evidence that is important to the matter, and not hold back from revealing to the court all the relevant body of evidence, which came into its hands following the investigation, whether it supports its version or whether it weakens it.

… in this matter, Talit’s evidence not only was important but could have been determinative.  The prosecution’s refraining from calling Talit to testimony raises questions, and it weakens the prosecution’s version… it is not an answer to say, that the defense could invite Talit to testify, if it appeared to her that she could be assisted by his testimony, as… there is a fundamental difference between what is imposed on the prosecution in presenting evidence before the court and what is imposed on the accused.

The court hints—possibly more than hints—that the prosecution unlawfully refrained from bringing an important piece of evidence to the Court, and it relies on this in saying what he says.  Not so in our matter.  As said, we are not of the view that the non-testimony of Amir points in favor of either one of the parties.

As to friendship and trust

94.  In his oral summations before us, but mainly in the written summations that he submitted to the Court, attorney Weinroth discusses in great detail—and depth—the qualities of a person—as a person—about man and the relationship of one person to another person: on friendship and trust, morality and friendship, integrity naiveté and deception, love and values, on the scales of liability and scales of credit, about informers and informants, and about good and virtuous people.  Attorney Weinroth discusses all these and plants stakes in the writings of learned and wise men—from the Western world and the Jewish world over the generations.  I agree with everything that attorney Weinroth told us; I agree—and could add more to them.  But after all this I rise and ask: if Margalit Har Shefi knew—knew in the simple and essential meaning of the concept—that Yigal Amir sought to murder; if she knew this and refrained—indeed do all of those wise words justify her failure to act or her refraining from speaking?  To act, to speak, if only the slightest amount—in order to save a life, to save the life of Yitzhak Rabin?  The question is a question and the answer is there.  So we say: once we have reached the conclusion—despite the sharp arguments of attorney Weinroth—that Margalit Har Shefi knew and failed to act, it is but law and justice that she be convicted.

In general

95.  The accumulation of evidence that collected in the Court case, the amount and nature of the evidence, all these dictate the conclusion—beyond a reasonable doubt—that the Appellant knew that Yigal Amir was the theorist-planner, planning and intending to carry out an evil-thought to murder the Prime Minister; she knew—and did nothing; she did not report to the authorities what she knew and did not take any other reasonable means to prevent the carrying out of the act.  The Appellant knew that Yigal Amir was serious in his intentions; her knowledge was real knowledge, clear knowledge; she believed that Yigal Amir indeed intended to carry out the evil thought that he thought up.  That is the conclusion that arises from the evidence brought before the Court, and all that is needed to complete the offense of neglect to prevent a felony.  Not just one piece of information penetrated the Appellant’s consciousness as to Amir’s malicious thought.  The pieces of information—some of them big pieces and some of them huge pieces—came frequently, one after the other; one following behind the other.  The hammer struck and struck.  More information and more information and more information—until the creation of the ‘critical mass’ until the creation of ‘knowledge’.  Moreover, the accumulation of pieces of information, one upon the other, not only was enough to rule out coincidence and possible alternative interpretations for each one of those pieces of information on its own—innocent possible interpretations —but that accumulation of information also created a synergetic effect.  All the signs point to one place and all paths lead to that same place, and when we arrive at that place, we know that there is no escape from one conclusion, one and only conclusion: the Appellant knew, explicitly knew, as to Amir’s intention and evil plan to murder Yitzhak Rabin.

96.  We are deciding therefore to dismiss the Appellant’s appeal of her conviction for the offense of neglect to prevent a felony.

97.  As to the sentence to which the Appellant was sentenced—nine months imprisonment and fifteen months suspended sentence: we have not found that the Magistrate’s Court —or the District Court—have been strict with the Appellant in a disproportionate manner.  The Magistrate’s Court– and the District Court —have properly weighed all the considerations related to the matter, and we have not found that the Appellant has been able to point to abuse of discretion which would entitle her to a reduction of the sentence.  We have not found good reasons to reduce the sentence, and we also dismiss the Appellant’s appeal as to the severity of the sentence.

Conclusion

98.  We will never ever know how the matter would have turned out if the Appellant had done what she was required to do—report to the authorities Yigal Amir’s malicious plot to murder Prime Minister Yitzhak Rabin.  If she had only done the little she could have done, it is possible Yitzhak Rabin would be with us today.  One phone call, even anonymously, and Yitzhak Rabin’s life may have been saved.  However, the Appellant did not do the little that it could have been expected and hoped she would do.  It appears she preferred the friendship that formed between her and Amir over the danger that loomed for Yitzhak Rabin and therefore she refrained and did not report.  In this omission she transgressed the commandment of ‘do not stand idly by the blood of your fellow’ and one who fails in this way is to receive a punishment.

We dismiss the Appellant’s appeal both as to her conviction and as to the sentence which she received.

 

 

Justice J. Türkel

1.    On 4 November 1995 the Prime Minister of Israel Yitzhak Rabin was shot to death.  Yigal Amir (hereinafter: ‘Amir’) was convicted of murder according to section 300(a)(2) of the Penal Law (hereinafter: ‘the law’).  An indictment was handed down against Margalit Har-Shefi (hereinafter: ‘the Appellant’) that attributed the offense of neglect to prevent a felony to her according to section 262 of the law (hereinafter: ‘the section’).  So too an additional offense was attributed to her from which she was acquitted and is not our concern.  According to what was claimed in the indictment, the appellant knew that Amir was plotting the act of murder and did not take all reasonable means to prevent its carrying out.  The Magistrates Court in Tel-Aviv-Jaffa (Justice Lidski) convicted the appellant of the offense of Neglect to prevent a felony.  The District Court – by the opinion of the majority of judges, Justices Bayzer and Hammer – dismissed the appellant’s appeal of her conviction.  Justice Berliner – in a minority opinion – was of the view that she is to be acquitted by way of doubt.  After being granted leave, the appellant appealed before us the District Court’s decision.  In the first part of my discussion I will discuss some of my doubts whether the moral duty at the basis of the section is to be enforced with a criminal sanction.  I will also discuss the question as to what the proper scope of the section is.  In the second part of the discussion we will check whether the foundations of the offense according to the section have been fulfilled by the appellant.

The offense of neglect to prevent a felony – the doubts

2.    According to the directive of the section, which in its former incarnation was section 33 of the Penal Law Ordinance: ‘one who knew that a certain person is plotting to commit a felony and did not take all reasonable means to prevent its commission and completion – is subject – to two years imprisonment.’

There are very few people that have stood trial in Israel for the offense of Neglect to prevent a felony according to the section, or the similar offense of covering up an offense according to section 95 of the law.  Therefore, there are also very few judgments in which the Courts have turned to the section and its interpretation (review Gur Aryeh’s article [34] in part III, section 2.1).  Not only that, but the case law of this Court speaks in various voices: some detest the section and some see it favorably.

According to the approach of Justice H. Cohn, the section is to be interpreted ‘by way of minimization and scrutiny’, and this in order ‘… not to create an opening for a duty of informing from which stems the scent of totalitarian oppression’.  From hence that the duty of a person to act to prevent a felony arises only when it is a matter of a ‘specific’ and ‘one-time’ felony, as opposed to a ‘continuing offense’, and only ‘when the danger of the felony is immediate and real’ (CrimAp 496/73 (hereinafter: ‘the Ploni  case’ [1]), pp. 719-720.  As to this view he also discussed in CrimA 307/73 Sultan v. State of Israel [19] CrimA 312/73 Mazrava v. State of Israel [3] and CrimA 307/73 Dasuki v. State of Israel [20]).  Justice I. Cohen did not hold the same and said that: ‘as long as the legislator did not erase this section from the law books, it is our duty to interpret it simply and take care to carry out the law.’  In his view this section is not ‘untouchable due to being an abomination’.  So too, ‘prevention of serious offenses, which felons plot to commit, is a blessed goal directed to protect the public.  It is the public duty of every citizen to assist in this way to prevent felonies, and establishing a criminal sanction for violating this duty is not to be ruled out’ (the Ploni  case [1] at p. 721).  From the words of Justice Asher, who also sat at the trial in the Ploni case [1], there appears to be inferred an approach which views the section as an unavoidable necessity.  According to his approach, in light of the security situation and the wave of serious crime one is not ‘to give up on any means of possible defense from the dangers that lurk for the public…’ and therefore one is not ‘to detract from the utility [of the section – Y.T.] by interpretation ‘by way of minimization’…’ (the Ploni case [1], at p. 722).  About twelve years after these judgments were handed down the Court went back and dealt with this issue.  In his judgment in the case before him Justice D. Levin saw the reasoning in the approach of Justice H. Cohn and said:  ‘… this section is alive and well, and is to be used in the appropriate case, even when one seeks to give a section a limited meaning, and there is reason to do so, the interpretation does not and cannot be narrow, to the point where it is not possible for a logical and reasonable conclusion to pass through it’ (CrimA 450/86 Gila v. State of Israel [6] at p. 832); emphasis mine – Y.T.).

3.    My path to the interpretation of the section is different than my predecessors’.  According to my view, one is to distinguish, and distinguish well, between the moral duty of a person to undertake reasonable means in order to prevent the commission of a felony, and his legal duty.  In my view, there is not the slightest doubt that from the moral aspect the dust of doubt in a person’s heart that a person is about to commit a felony – and all the more so to take a life – is sufficient to obligate him to be concerned and to save.  However it is a big and difficult question, and thinkers and jurists have struggled with it over the generations, whether a moral norm is to be enforced by dressing it in the garb of a legal norm.  In other words, it is proper for a moral norm to stay within its own four corners and not leave its realm, such that one who violates it will be ‘exempt from the laws of man and liable’ – only – ’by laws of the heaven’ (Baba Kama, 55, B; 56, A [L] and in other places).  The discussion of the question does not require determination in the appeal before us and therefore I will make do with the key elements.

Some have seen in the overlap of realms of morality and law a coveted ideal.  Justice Zilberg revealed his longing for this in his known words:

‘The realms of the morality and the law are two concentric circles, they cover one another only partially – the more the line distinguishing between them retreats, so the territory and the moral content of the law will grow.  The coveted ideal, would be that the two circles overlap each other in their entire scope – as water covers the ocean’ (M. Zilberg So is the Way of the Talmud at p. 67).

I am concerned that this longing is not the property of all; its realization is also not suited to all the moral norms.  Professor A.  Rubinstein discussed this in saying:

‘the reciprocity between the religious directives, moral rules and legal prohibitions has been dealt with and is dealt with by jurists, philosophers, and sociologists.  The discussion is broad and included a row of interesting matter and sharp debates.  The development of this reciprocity can be described in the gradual distancing of three circles from each other.  At first there was one circle that included within it the directives of religion, morality and law ...  the more human society advanced, so the three circles moved away from the center and created separate frameworks although, in part at least they touch and even overlap...

The question is in other words: is society entitled to use its power – meaning, the power of the law and the mechanism of the enforcement of the law – to impose its views on the minds of those that don’t act like it.  The discussion of this question is not new and in fact there was no escape from it from the moment that a secular-democratic society arose.  From the moment that the supreme power arose as the source of power, and the regime was no longer based on ‘divine right’, the question arose and came up: ‘from where does the duty of the individual stem to surrender to the will of others like him?’

This old debate as to the connection between morality and law has renewed in our day in greater force, against the background of legal reforms that occurred lately in the Western States and against the public debate, in these questions in Israel (E. Rubinstein, Enforcing Morality in a Permissive Society [29] at pp. 7-8).

Another difficulty in enforcing moral norms by force of law – a difficulty which is also connected to the questions which are discussed in the appeal before us – was discussed by Justice H. Cohen:

‘And if the moral edicts in the Torah became legal norms, then in non-religious legal systems the moral norms cannot be legal norms, and that is because the mechanisms of the law cannot – and therefore are not interested in – reaching the secrets of a person’s heart and what occurs within himself.  Not so divine law: it adds to the moral directives the warning ‘fear your g-d’ (Leviticus 19, 14 and more), that he ‘who knows your thoughts and everything that is given to the heart of man who makes him, and the other creatures do not recognize him (Rashi, ibid) will already know how to collect from you.’ (H.H. Cohn the Law [30] at p. 95.

(As to the enforcement of moral norms by force of the law see the known debate between Devlin and Hart the key elements of which were brought in Rubinstein’s book supra [29] at pp. 43-62.  The various aspects of the question were reflected in discussions which preceded the legislation of the Though Shalt Not Stand Idly by the Blood of Another Law 5758-1998; among other things see the explanatory notes to the Draft Penal Law (Amendment no. 47) (Though Shalt Not Stand Idly by the Blood of Another) 5755-1995, at p. 456.  So too see, out of many sources: A. Parush, Legal Determinations and Moral Considerations [31], the chapter which deals with ‘law, morality and the duty to help the other’ at pp. 11-38; R. Gavison, ‘Enforcement of Morality and the Status of the Principle of Liberty [38];            A. Parush ‘The Law as a Tool for Enforcing Morality’ [39]).

I will not respond here to the big and difficult question that I presented above, whether it is proper to enforce moral norms by force of the law.   Nor the question which moral norms are to enforced in this way.  It is sufficient for me to say that according to my approach there are moral norms that are proper to be enforced by the law and I will not identify them here.  The principles at the basis of the Unjust Enrichment Law 5739-1979 are a clear example for such proper enforcement.  Even the principles at the basis of the law Do Not Stand Idly by the Blood of Another are an example of this.  As we shall see supra, the provision of the section is not such.

4.    The echo of the aspiration to clothe a moral norm in the garb of a legal norm, also arises, it appears, from the section itself, and perhaps without its legislators meaning to do this.  However there is also another facet to this noble aspiration, which is not so noble.  I fear that the significance of the realization of the moral idea embodied in the section, may be, in certain cases, attribution – by way of conjecture and guesswork – of ‘knowledge’ to a person as to the intentions of another person, and in this the danger is hidden.  I will clarify my words.  It is not a matter here, as in a ‘regular’ offense, of exposing the knowledge and the intentions of a person as to his actions himself, but in exposing the knowledge of a person as to the intentions of another person.  If the exposing of the first type, is, frequently, by way of drawing conclusions built on conjecture, then the exposing of the second type will be – probably, in most cases – by way of drawing conclusions built on conjecture upon conjecture.  There is here, supposedly, ‘a voice’ of an idea that Justice Landau expressed in his known words:

‘A regime which takes upon itself the permission to determine what is good for a citizen to know, in the end will also determine what is good for a citizen to think; and there is no greater contradiction than this to real democracy, which is not ‘directed’ from above.’ HCJ 243/62 Filming Studios in Israel Ltd. v. Gary [21] at p. 2416).

To paraphrase things: in my view, the danger that lurks to our liberty from between the crevices of the section is in that the section does not limit itself to a directive to the citizen as to what he must do, but it places upon the court to also determine what he thought – and also what in the opinion of the court is reasonable that he thought – as to a certain person’s thoughts.  Supposedly, revealing hidden thoughts as to hidden thoughts.  For this the words of H. Cohen are suitable in his book supra [30], which were quoted above ‘… that the mechanisms of the law cannot – and therefore are not interested in – reaching the secrets of a person’s heart and what occurs within himself’ (at p. 95).

The apprehension of ‘the duty to inform’, which Justice H. Cohn discussed in the Ploni  case [1], does not make the section ‘untouchable due to being an abomination’ in my view, as the moral duty to feel and save overcomes the moral defect that attaches in certain cases to informing.  However, I would say – even if this is somewhat paradoxical – that the need to look into thoughts in order to realize the section is problematic such that it justifies removing the moral norm at its foundation from those that are appropriate for enforcement by the law.  I will comment that the duty according to the section is distinct from the one according to the law of Thou Shalt Not Stand Idly by the Blood of Another 5758-1998, according to which a person must offer help ‘to a person before him’ (section 1(a) in particular).  According to my view, it would be proper that the legal duty that the section imposes be erased from our law books; without this detracting in any way from the moral obligation.  Despite this, as long as the section stands, we are forced by the language to fulfill it, however it is proper that its application be done with extra care and ‘by way of minimization and meticulousness’. (The Ploni case [1] at p. 719).

A comment on the doubt

5.    Here is the place for another general comment.  In the discussion of the offense according to the section thought is to be given, and with greater intensity, as to the question whether the prosecution was able to convince the Court ‘beyond a reasonable doubt’ that the elements of the offense were fulfilled in the accused.  In other words, it is to be thoroughly examined whether there is in the body of evidence anything that can raise reasonable doubt as to their guilt, as per the directive of section 34V(a) of the law: ‘a person will not bear criminal liability for an offense unless it was proven beyond a reasonable doubt’ (see, E. Harnon, Laws of Evidence (Volume A) [32] at p. 212;  J. Kedmi, On Evidence (Vol. B) [33] at pp. 828-834).

The courts and the legal scholars have tired themselves in their attempts to define the substance of reasonable doubt and to translate it to a real standard, concrete and clear which can guide the Court (see, inter alia: the discussion in CrimA 347/88 Demajnuk v. State of Israel [22], at pp. 644-653; A. Gross ‘In the Margins of the Case Law—the Demajnuk Judgment and the Pursuit of Truth’ [40]; A. Gross, M. Orkavi, ‘Beyond a Reasonable Doubt’ Kiryat Hamishpat (1991) 229 [41] at pp. 233-238).  I am of the view that due to the special character of the section, which obligates the Court as we have seen, to investigate and research the hidden – the thoughts and assessments in a person’s heart as to the intentions in a specific person’s heart – a degree of extra care is to be taken and scrutinized well whether there is hidden in the body of evidence a kernel of such doubt.

From the norms in the law to the person on trial

6.    At the heart of the discussion before us stands the question whether the appellant knew that Amir is plotting to commit the murder.  I will precede and state that I accept the analysis by my esteemed colleague Justice M. Cheshin of the elements of the crime according to the section.  Like him, I too am of the view that the knowledge that is required according to the section is part of the mental element of the crime.  So too, I accept his conclusion – inter alia, for the reasons that were detailed supra – that for a conviction of the offense knowledge ‘in its simple meaning’ is required and willful blindness is not sufficient, meaning simple suspicion that was not looked into.

My road to a decision was a difficult and lengthy road of obstacles.  Because of the difficulty built into the section, which I discussed above I examined and studied the evidence well, and in particular I went back and looked at the memos that were written from the words of the appellant soon after the murder as well as her testimony in Court.  I also went back and watched the video tape in which her meeting with Avishai Raviv was recorded when they were in the arrest cell – in which Justice Berliner found a central element for her doubts – and I looked through the rest of the evidence.  During the course of the hearing I found myself, more than once, deliberating the question whether it is a matter of an innocent young woman lacking experience who honestly and truly thought that Amir is a ‘braggart and fantasizer’, as per her version, and therefore she does not come within the bounds of ‘one who knew that a certain person is plotting to commit a felony’, or whether things were not so and therefore she does come within those bounds.

Indeed, the appellant’s many conversations with Amir – despite the fact that they revolved around the issue of ‘the law of Rodef’ – could be seen, under duress – as consistent with her innocent version.  Thus it could also be said – also under duress – that his words in her ears as to his intention to carry out the murder, and maybe also his words that on two occasions he was not successful in doing so, did not seem serious to her.  And despite this, after I examined and weighed the totality of evidence, I have reached the conclusion that at a certain point in time the appellant came within the bounds of ‘one who knew’ that Amir is plotting to commit the felony.  I was convinced of this primarily by the fact that about a month before the murder (p. 760 of the transcript) the appellant approached the Rav Shlomo Aviner, the Rabbi of the settlement of Beit El, and asked him as to ‘the law of Rodef’ and ‘whether in such a case [she – J.T] must turn in one who claims that the law of Rodef exists as he wants to do something and thus becomes a Rodef himself’ [V/16].  Even if we accept her version that during the course of her conversations with Amir she regarded him as a ‘braggart and fantasizer’, and did not take his words seriously, then her decision to approach the Rav Aviner with the question, whether she should turn Amir in, is a signal which points to a turning point.  She testifies as to this that at that time the recognition formed in her heart that Amir’s words was not meaningless talk and that he is plotting to commit the murder.  Thus, the appellant, at that stage came within the bounds of ‘one who knew’ according to the section.

Indeed, there is room for the theory that following the appellant’s conversation with the Rav Aviner, her concerns were lessened (her testimony at p. 573, 658 of the transcript).  However this is not sufficient in order to remove her from the realm of ‘one who knew’, according to the section.  With her decision to approach the Rav Aviner with the question – and perhaps even at some point before then – she came out of the realm of one ‘who perhaps knew’ and came within the realm of ‘one who knew’.  In the period of time that passed from the date of the decision until the date of the conversation with the Rav Aviner – even if her concerns were weakened – she was bound by the directive of the section to undertake ‘all reasonable means to prevent the commission’ of the felony.

7.    The minority opinion holder in the District Court  Justice Berliner was of the view that the appellant’s words in her conversation with Avishai Raviv in the arrest cell on 7 November 1995 which were recorded with a video recorder and written in a transcript (V/24, N/8) raise reasonable doubt as to her guilt.  In that conversation the appellant states, inter alia:

... we are in shock his social group is in shock...

... why would I need to think he would go and do such a thing we sat like even many times, it is true, like it is not Yigal it is not one who I always took all these incidents with limited trust… not just cynicism but like moments of how should I say this exaggerations…

I didn’t recognize him as though suddenly there is a disconnect Yigal until Saturday night Yigal Saturday Night no as though it still isn’t absorbed by the mind…’

I was taken up with the question whether what the appellant said as to the ‘shock’ that came over her and her impression that Amir’s words are ‘moments of …  exaggeration’ support her version and raise reasonable doubt as to her knowledge.  However, after thinking about the matter I was convinced that they are not sufficient to raise a doubt.  It is to be remembered that the appellant’s words were said three days after the murder, and probably reflected the shock, her surprise and her distress at the same time.  It is reasonable that the appellant had difficulty facing herself and admitting to herself that indeed she knew in advance as to Amir’s plot and did not do anything to prevent it.  There is in these things, it appears, an attempt to justify retroactively – first and foremost to herself – her omission.  They cannot retroactively weaken the conclusion that at the time that she approached the Rav Aviner she was within the realm of ‘one who knew’.

8.    By force of these reasons I am also of the view, like my esteemed colleague Justice M. Cheshin, that the appeal of the conviction is to be dismissed.

The sentence

9.    The Magistrates Court sentenced the appellant to the maximum sentence established for the offense: imprisonment for a period of two years, including nine months actual imprisonment and the remainder suspended sentence.  In my view, the sentence that was handed down cannot hold up.  First of all because it is not necessary – for the public or for the appellant – to achieve the punitive goals accepted by us: deterrence, retribution, prevention and rehabilitation.  It also does not hold up for additional reasons.

I discussed supra my doubts as to the section and as to the fact that it would be proper for it to be erased from our law books, without detracting from the validity of the moral duty at its foundation.  In my view, this is to be taken into account in determining the sentence.  It is further to be taken into account that, as said supra, there are very few people who have been brought to trial in Israel for an offense according to this section, and only very few have been brought to trial for this offense as a lone offense.  There is particular importance to the fact that the appellant was not, in any shape or manner and also not indirectly, a party to the crime of murder of which Amir was convicted – as per the definition of parties to a crime in section B of chapter E of the law – and was not involved in it in any way, but was convicted of the special and separate offense of Neglect to prevent a felony, and in the special circumstances which I described.  There are also two additional mitigating heavy weight considerations: her age at the time of the offense – about nineteen years – and her clean past.  So too, it is not to be forgotten that since the offense of which she was convicted was committed a period of over five years has passed.

In light of these fundamental and personal reasons I would cancel the sentence that was imposed on the appellant and in its stead I would sentence her to a period of six months to be served in community service, joined with a six month suspended sentence, as stipulated in the sentence of the Magistrates Court.

 

 

Justice E. Rivlin

I join the views of my colleagues, Justice M. Cheshin and Justice Turkel, that the appeal of the conviction is to be dismissed.  However, I wish to add several comments to this matter.

Indeed, the offense of Neglect to prevent a felony, as defined in section 262 of the Penal Law (hereinafter: ‘the law’) is a unique and special offense.  It is an omission offense, and the omission is in the non-prevention of the commission of an offense by another.  The offenses that order the punishment of a person for failing to perform an action, as opposed to ordering punishment for committing an improper act, are few.  The choice to penalize an individual for not having the wisdom to prevent another from committing an offense has been met with criticism from legal scholars, and there are systems that are unwilling to adopt it.  Imposing a duty to act may damage the liberty of the individual more than punishment for a prohibited act.  However, I am not of the view—as is my colleague Justice Turkel—that it would be proper for the legal duty imposed by the section to be erased from our law books and remain a moral duty alone.  The offense that deals with Neglect to prevent a felony was not intended to enforce a moral outlook only because it is a prevalent moral outlook.  It came to enforce a norm which deviates from the pure ‘positivist’ morality (based on the distinction proposed by Professor Hart) and it responds to the norm worthy of enforcement also based on the Millsian approach—as its violation may bring damage to others.  Indeed, there is a difference between enforcing a prohibition and enforcement of the action, between punishment of an action and punishment of an omission; the latter—punishment of an omission—requires extra caution.  The need to prevent a severe outcome to others may justify the punishment of the one who did not prevent it.  On the other hand, it is difficult to justify the punishment of a person for not preventing the risk that a negligible outcome will be caused to others due to a person’s prohibited action.  This very balance was made by the Israeli legislator when he established the limits of the offense described in section 262 of the law.  It does not deal with one who knew that a certain person is plotting to commit a felony, meaning an offense that is ranked in its severity at the top of the sentencing scale (section 24 of the law).  Indeed, the felonies themselves vary among themselves in their severity—and the most severe is the action of one who causes with premeditation the death of a person (as to the possible ramification of the ranking of severity as to the felony that the other was about to commit—as to the interpretation of the foundations of the offense in section 262 I will comment infra).  But every act classified as a felony is a serious act, whose prevention may justify the enforcement of said duty.

2.  My colleague Justice M. Cheshin discusses the emotional barrier that arises for a person who finds out that his friend or relative is plotting to commit a felony, and he is required to make a report to the authorities or to undertake another way to prevent the commission of the act.  This emotional difficulty, as he clarifies, may create for a person a mechanism of self deception which serves as a defense against his difficult vacillations- a mechanism that may suppress the knowledge and repress it in his consciousness.  Indeed this is so, but in my view the concern is dwarfed when measured up against act of the wicked person who is committing the ultimate felony—taking a human life.  And one who knows — shall not be silent and the only protective mechanism that will arise for him—is the protection of persons from one who comes to murder.  That is the protection of the life force of society, and no restriction, aversion, or personal loyalty stands in the place where human life is in real danger.  And for those who are fearful- there shall be no hope.

3.  This interpretation of the level of severity of the offense that the offender is plotting to commit may ostensibly lead us to examine the nature of the responsibility based on the severity of the plot.  It would have been possible to hold that where the felony that one is obligated to prevent is a severe felony—and certainly where it is a matter of the most severe of all: taking a human life—the boundaries of the duty are broadened.  One who ‘knows’ that another is plotting to carry out a murder, so it can be thought, will not be exempt of the duty to undertake means to prevent the action, even if the likelihood of carrying out the plot is low, as the expectancy of the felony remains high due to its severity.  A possibility of such a distinction was not ruled out in the scholars’ writings (see Kanai, in her article supra [37], at p. 438).  And indeed, is it not proper to demand from the one suspecting—who does not ‘know’ with certainty—that he inquire as to the seriousness of the suspicion, where the felony, the subject of the suspicion, is severe?  Can he wash his hands of it when he chooses not to examine his suspicion?  The provision of section 20(c)(1) of the law—whether it speaks of ‘willful blindness’ or a lower level of criminal intent—is likely to ostensibly support the conclusion that he is not to be exempt from criminal liability.  ‘A person who suspected as to the nature of the behavior or the possibility of the existence of the circumstances is viewed as one who was aware of them, if he refrains from investigating them’—so instructs section 20(c)(1) of the law; ‘refrains from investigating them’ is likely to be interpreted such that there exists such a level of suspicion that it requires investigation (Kanai, ibid, p. 437), or—that the severity of the felony was such that it required investigation.  Both of these are factors in the equation of the expectancy of the felony, and the question is if this provision also applies as to the matter of section 262 of the law.

4.  My colleagues do not think so.  Justice M. Cheshin emphasizes that the offense is an offense of knowledge, and the required knowledge is real knowledge; willful blindness and suspicion being insufficient.  According to his view, a purposive interpretation of the offense described in section 262 causes the general provision in section 20(c) of the law to retreat before the provision of section 262.  The nature of the offense—an omission offense—and the degree of its invasion into the sphere of activity of the individual require narrowing the mental element which is embedded in it and interpreting it narrowly.

Even when it is undeniable that the choice—to exempt from criminally liability the omitter who sits in inaction and prefers to ignore the suspicion which nests in his heart as to the intentions of the plotter to take human life—is a difficult choice, I also join it.  A punitive outcome which changes from matter to matter according to the nature of the plot may undermine principles of legality in criminal law, as the foundation of knowledge itself will change its boundaries according to the expectancy of the outcome.  I would support this outcome with the approach, which also found expression in the case law of the District Court in our matter, that the words ‘one who knew’ in the provision of section 262 has two facets; embedded in them is not only the mental element of cognizance but also the factual element of knowledge. This last element by its nature does not withstand anything less than actual knowledge.  In other words: even if it was possible to interpret the ‘mental facet’ in it as including ‘willful blindness’ or even ‘suspicion’, in any case the cumulative requirement of the two facets would be a requirement of real ‘knowledge’.

5.  ‘One who knew that a certain person is plotting to commit a felony’—or one who knew and believed.  The person for whom the information as to the plot accumulated in his possession must believe that a certain person indeed is plotting to commit a felony.  And how will we now that indeed it was so?  Here we move from the substantive realm to the evidentiary realm.  While in the substantive realm the test is necessarily ‘subjective’, it is not so in the evidentiary realm.  The presumption of cognizance can serve as an objective measure for examining the existence of such knowledge, as said.  Where the circumstances teach us that an average person would know and believe that a felony is about to occur, there is a presumption that the accused, whose matter is being examined, also knew and believed.  And in order to rebut this presumption—a duty arises for the accused to prove that circumstances exist which show that he himself did not know or did not believe.

At times we use an objective test and have no need for the presumption of cognizance.  It is a matter of cases in which it is possible to learn of the knowledge of the omitter with subjective evidence.  The objective test normally examines the behavior of the plotter and the conclusions that the ordinary person would draw from it as to his intentions, while the subjective test is required primarily for the behavior of the omitter and the conclusions which can be drawn from it as to the ‘knowledge’ of the omitter himself.

6.  But there is no need to decide as to all this here.  I too agree that the matter of the knowledge of the appellant that the murderer plotted to commit a felony has been proven, and that this knowledge is learned both from the external manifestations in the behavior of the committer of the felony and the external manifestation in her behavior.

His own behavior was expressed in things about which the appellant knew.  The appellant knew from him as to his extreme views, the seriousness of his actions in all that relates to setting up an underground, his organizing capacity and his determination, the fact that he regularly carried a handgun, and his two attempts to murder Yitzhak Rabin, may his memory be a blessing.

As for her behavior—this was expressed when she revealed that she took the plotter’s intentions seriously, and therefore chose to deceive him as to the location of the armory in Beit El.  Her knowledge of the seriousness of his intentions also was expressed in the fact that after the matter of the murder was known publicly and even before the identity of the murderer was publicized, the appellant called the plotter and others, including her friend, and to this last one she said that when she found out about the act she wanted ‘to hug’ the plotter.

The appellant’s behavior was expressed also in her approach of Rav Aviner and the double question she posed to him, meaning whether the law of Rodef applies to the Prime Minister and whether a person who says that the law of Rodef applies to the Prime Minister is to be turned in to the authorities.  This second question is what tells us that she ‘knew’ about the plot, and when she did not undertake the necessary steps to prevent it—she violated the offense described in section 262 of the law.  Therefore I too am of the view that the appeal in all that relates to the conviction is to be dismissed.

7.  As to the sentence which the appellant received—nine months imprisonment and fifteen months suspended sentence—it is not a sentence that is severe to an extent that justifies, in my view, our intervention.  Even when we take into account as to the sentence, as mitigating, the young age of the appellant, her clean past and the time passed since the commission of the offense—there is no place to say that the Court was harsher with the appellant beyond what is appropriate.  Therefore, I am of the view that the appeal is to be dismissed as to all of its parts.

 

It was decided unanimously to dismiss the appeal of the conviction, and by majority opinions, against the dissenting opinion of Justice Turkel, it was decided to also dismiss the appeal as to the sentence.

 

28 Shvat 5761

21 February 2001

 

Full opinion: 
PDF icon Har-Shefi v. State of Israel.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/99/170/034/G06/99034170.g06.pdf

Flatto-Sharon v. State of Israel

Case/docket number: 
CrimA 71/83
Date Decided: 
Wednesday, June 27, 1984
Decision Type: 
Appellate
Topics: 
Criminal Law
Conviction
Criminal Procedure
Offenses
Abstract: 

The Appellants in the appeal and cross appeal of the judgment given by the Magistrate's Court were convicted for conspiracy to commit a felony pursuant to section 499 of the Penal Law, 5737-1977, and for election bribery under section 122(1) of the Knesset Election Law [Consolidated Version], 5729-1969. This followed a campaign for election to the Knesset whereby their faction included a promise to provide housing at low rental and on convenient terms in apartments which Appellant No. 1 would purchase with his own funds and with funds of investors over whom he enjoyed personal influence. It was also held that the Appellants' list paid numerous activists remuneration on election day for work that was not in fact performed. On the other hand, the Appellants were acquitted of similar offences attributed to them in connection with dispensing funds to certain public and community leaders in order that those persons would then exercise their influence over their followers, and with providing funds to a list vying for election to a local municipality in exchange for influencing its followers to vote for the Appellants' Knesset List. From this follow the appeal and cross appeal to the Supreme Court.

 

 

The Supreme Court gave judgment as follows:

 

A.    The essence of a free election is not merely physical freedom to cast one's ballot in the booth, but more importantly, one's absolute intellectual and psychological freedom to participate in the election process. Any action that either restricts or denies the voter's freedom of thought or expression be it by bestowing upon him a benefit or by coercing him to accept the views of another violates the basic principle of honest, independent elections. [p. 758]

 

B.    (1)    An offence under section 122(1) of the Knesset Election Law requires proof that a bribe was given or offered, with the intent of influencing the voter.

        (2)    Section 123 of the Knesset Election Law adopts for purposes of bribery the principles established under section 293 of the Penal Law, mutatis mutandis.

 

C.    (1)    To prove the elements of bribery under the Penal Law, the State must establish beyond reasonable doubt: that a public servant is involved; that there was the taking or giving of a benefit in the form of a bribe; that the giving or taking was in exchange for a certain activity which itself was connected to the employee's duties; and that the giving or taking of the bribe was done with the intent of obtaining some material benefit, either immediately or at an appropriate time in the future.

        (2)    In viewing the facts in their entirety, attention should be paid not only to the facts as they appear on the surface, but also to the entire fabric of relations between the giver and the taker, as well as the explicit and implicit intent of the actors. The intent of the legislator with respect to the norm that he intended to achieve must be considered vis a vis what the giver and taker of the benefit sought to accomplish by their acts.

 

D.    There is no requirement of mutuality of intent between the giver and the taker of a bribe. In principle, there is nothing to prevent a situation whereby the giver is innocent while the taker is guilty, or vice versa.

 

E.     The offence of campaign bribery under section 122(1) of the Knesset Law lies in the very act that an offer is made.

 

F.     (1)    An error attributable to the legal interpretation of a norm is not a defence under section 12 of the Penal Law.

        (2)    The fact that criminal acts committed in the past went unpunished does not sanction the commission of such acts now or in the future.

        (3)    Mistake in a legal norm or unpunished acts in the past may be raised, if at all, in connection with the severity of the punishment meted out by claiming that the absence of clear precedents or guide-lines left the campaign activists unaware of the full significance of their conduct.

 

G.    (1)    Whether a certain platform is legal or not depends upon an examination of the particular facts, the explicit and implicit contents of the platform, and the manner of its presentation to the public.

        (2)    A platform proposing a solution to the problem of housing is legal; however, if the platform contains not only a plan of action, but also a promise to certain voters that if they vote for a specific candidate, they will obtain housing on attractive terms, it is illicit and tainted by election bribery. [p. 759]

 

H.    (1)    While acts of charity by candidates should not be forbidden, they should be done discreetly.

        (2)    Because acts of charity or the dispensing of favours close to an election could serve as a camouflage for bribery of voters, the true intent of the person dispensing the favour should be closely examined.

        (3)    If the motive is genuine, then the intent is proper. If, however, the purpose is to garner votes on election day, then the intent is illegal.

        (4)    If both motives are present, the intent that actually guided the actor is the determinative one.

        (5)    In examining intent, one may be assisted by precedent and by logic.

 

I.      (1)    In examining the organizational and publicity aspects of a campaign, one starts from the fact that the use of paid election activists is not illegal.

        (2)    However, if the activist has no real function to perform in the campaign, and the only reason for his salary is to influence him and his family to vote for a certain candidate, the payment is tainted by election bribery and he who makes such a payment has committed election bribery under the Knesset Election Law.

        (3)    One should carefully examine the circumstances under which a worker purports to be engaged in organizational activities in exchange for payment.

 

J.     Pseudo-employment is characterized by the following: general apathy on the part of the candidate regarding what the employee will do; the lack of a genuine need for the services of the employee either in whole or in part; employing workers out of all proportion to the number of voters in the locale; and lack of proportion between what the worker does and the amount of his remuneration, and between the number of voters in an area and the amount of money expended in hiring campaign workers there.

 

K.    There is nothing illegal in community or public leaders identifying with a certain candidate in seeking to promote his candidacy by appealing to their followers. However, while such an alliance is proper if based on an affinity of idea or position, it is illegal if based on direct payment to the leaders in exchange for their support and the support of their followers. [p. 760]

 

L.     That the recipient of a payment was not a person of influence is irrelevant if the person giving the payment intended that the recipient exercise his authority over his followers.

 

M.    (1)    As in the case of employing campaign workers, dispensing a favour for both pure as well as corrupt purposes is also considered an election bribe.

        (2)    In examining intent, one must consider whether bona fide campaign activity was the primary consideration received in exchange for the payment, or whether the payment was given in order to secure the vote of that person as well as those subject to his influence. If the latter is the case, then the payment is an election bribe.

 

N.    (1)    Mutual assistance between two parties or movements is proper so long as the alliance is based on an affinity of ideas or personalities. However, if the assistance of one party to another has an ulterior motive, such as monetary help or a deal to buy the influence of one party on behalf of another, then the alliance may be illegal because it is intended to dispense a favour in exchange for obtaining influence over potential voters.

        (2)    The principles established in connection with buying the influence of leaders applies in even greater force to an alliance between two parties.

 

O.    Section 123(2) of the Knesset Election Law forbidding the giving of a bribe to influence the conduct of a third party does not depend upon how much influence is wielded. Buying influence of any degree is forbidden, and the influence bought need not necessarily be of one, the supposed benefactor, whose command is obeyed blindly by a certain group.

 

P.     The Knesset Election Law does not recognize vicarious liability for offences committed by a list's activists. Therefore, the leadership of a list can be held liable only if the acts were committed at their initiative, approval or assistance.

Voting Justices: 
Levin, Dov
Primary Author
majority opinion
Bejski, Moshe
majority opinion
Netanyahu, Shoshana
majority opinion
Full text of the opinion: 

 

Crim. A. 71/83

 

1. SHMUEL FLATTO-SHARON

2. YA'ACOV BEN UDIS

3. YA'ACOV HALFON

v.

STATE OF ISRAEL AND CROSS APPEAL

 

 

In the Supreme Court sitting as a Court for Criminal Appeals

[June 27, 1984]

Before: Bejski J., D. Levin J. and Netanyahu J.

 

 

Penal Law 5737-1977, Sefer HaChukkim 226, sections 12, 17, 32, 242, 292, 499; Knesset Election Law [Consolidated Version], 5729-1969, Sefer HaChukkim 103, sections 122 (amended: Sefer Hachukkim 5727 74), 122(1), 122(2), 122(3), 122(4) 122(5), 123, 123(2).

 

 

 

            The Appellants in the appeal and cross appeal of the judgment given by the Magistrate's Court were convicted for conspiracy to commit a felony pursuant to section 499 of the Penal Law, 5737-1977, and for election bribery under section 122(1) of the Knesset Election Law [Consolidated Version], 5729-1969. This followed a campaign for election to the Knesset whereby their faction included a promise to provide housing at low rental and on convenient terms in apartments which Appellant No. 1 would purchase with his own funds and with funds of investors over whom he enjoyed personal influence. It was also held that the Appellants' list paid numerous activists remuneration on election day for work that was not in fact performed. On the other hand, the Appellants were acquitted of similar offences attributed to them in connection with dispensing funds to certain public and community leaders in order that those persons would then exercise their influence over their followers, and with providing funds to a list vying for election to a local municipality in exchange for influencing its followers to vote for the Appellants' Knesset List. From this follow the appeal and cross appeal to the Supreme Court.

 

 

The Supreme Court gave judgment as follows:

A.    The essence of a free election is not merely physical freedom to cast one's ballot in the booth, but more importantly, one's absolute intellectual and psychological freedom to participate in the election process. Any action that either restricts or denies the voter's freedom of thought or expression be it by bestowing upon him a benefit or by coercing him to accept the views of another violates the basic principle of honest, independent elections. [p. 758]

 

B.    (1)    An offence under section 122(1) of the Knesset Election Law requires proof that a bribe was given or offered, with the intent of influencing the voter.

        (2)    Section 123 of the Knesset Election Law adopts for purposes of bribery the principles established under section 293 of the Penal Law, mutatis mutandis.

 

C.    (1)    To prove the elements of bribery under the Penal Law, the State must establish beyond reasonable doubt: that a public servant is involved; that there was the taking or giving of a benefit in the form of a bribe; that the giving or taking was in exchange for a certain activity which itself was connected to the employee's duties; and that the giving or taking of the bribe was done with the intent of obtaining some material benefit, either immediately or at an appropriate time in the future.

        (2)    In viewing the facts in their entirety, attention should be paid not only to the facts as they appear on the surface, but also to the entire fabric of relations between the giver and the taker, as well as the explicit and implicit intent of the actors. The intent of the legislator with respect to the norm that he intended to achieve must be considered vis a vis what the giver and taker of the benefit sought to accomplish by their acts.

 

D.    There is no requirement of mutuality of intent between the giver and the taker of a bribe. In principle, there is nothing to prevent a situation whereby the giver is innocent while the taker is guilty, or vice versa.

 

E.     The offence of campaign bribery under section 122(1) of the Knesset Law lies in the very act that an offer is made.

 

F.     (1)    An error attributable to the legal interpretation of a norm is not a defence under section 12 of the Penal Law.

        (2)    The fact that criminal acts committed in the past went unpunished does not sanction the commission of such acts now or in the future.

        (3)    Mistake in a legal norm or unpunished acts in the past may be raised, if at all, in connection with the severity of the punishment meted out by claiming that the absence of clear precedents or guide-lines left the campaign activists unaware of the full significance of their conduct.

 

G.    (1)    Whether a certain platform is legal or not depends upon an examination of the particular facts, the explicit and implicit contents of the platform, and the manner of its presentation to the public.

        (2)    A platform proposing a solution to the problem of housing is legal; however, if the platform contains not only a plan of action, but also a promise to certain voters that if they vote for a specific candidate, they will obtain housing on attractive terms, it is illicit and tainted by election bribery. [p. 759]

 

H.    (1)    While acts of charity by candidates should not be forbidden, they should be done discreetly.

        (2)    Because acts of charity or the dispensing of favours close to an election could serve as a camouflage for bribery of voters, the true intent of the person dispensing the favour should be closely examined.

        (3)    If the motive is genuine, then the intent is proper. If, however, the purpose is to garner votes on election day, then the intent is illegal.

        (4)    If both motives are present, the intent that actually guided the actor is the determinative one.

        (5)    In examining intent, one may be assisted by precedent and by logic.

 

I.      (1)    In examining the organizational and publicity aspects of a campaign, one starts from the fact that the use of paid election activists is not illegal.

        (2)    However, if the activist has no real function to perform in the campaign, and the only reason for his salary is to influence him and his family to vote for a certain candidate, the payment is tainted by election bribery and he who makes such a payment has committed election bribery under the Knesset Election Law.

        (3)    One should carefully examine the circumstances under which a worker purports to be engaged in organizational activities in exchange for payment.

 

J.     Pseudo-employment is characterized by the following: general apathy on the part of the candidate regarding what the employee will do; the lack of a genuine need for the services of the employee either in whole or in part; employing workers out of all proportion to the number of voters in the locale; and lack of proportion between what the worker does and the amount of his remuneration, and between the number of voters in an area and the amount of money expended in hiring campaign workers there.

 

K.    There is nothing illegal in community or public leaders identifying with a certain candidate in seeking to promote his candidacy by appealing to their followers. However, while such an alliance is proper if based on an affinity of idea or position, it is illegal if based on direct payment to the leaders in exchange for their support and the support of their followers. [p. 760]

 

L.     That the recipient of a payment was not a person of influence is irrelevant if the person giving the payment intended that the recipient exercise his authority over his followers.

 

M.    (1)    As in the case of employing campaign workers, dispensing a favour for both pure as well as corrupt purposes is also considered an election bribe.

        (2)    In examining intent, one must consider whether bona fide campaign activity was the primary consideration received in exchange for the payment, or whether the payment was given in order to secure the vote of that person as well as those subject to his influence. If the latter is the case, then the payment is an election bribe.

 

N.    (1)    Mutual assistance between two parties or movements is proper so long as the alliance is based on an affinity of ideas or personalities. However, if the assistance of one party to another has an ulterior motive, such as monetary help or a deal to buy the influence of one party on behalf of another, then the alliance may be illegal because it is intended to dispense a favour in exchange for obtaining influence over potential voters.

        (2)    The principles established in connection with buying the influence of leaders applies in even greater force to an alliance between two parties.

 

O.    Section 123(2) of the Knesset Election Law forbidding the giving of a bribe to influence the conduct of a third party does not depend upon how much influence is wielded. Buying influence of any degree is forbidden, and the influence bought need not necessarily be of one, the supposed benefactor, whose command is obeyed blindly by a certain group.

 

P.     The Knesset Election Law does not recognize vicarious liability for offences committed by a list's activists. Therefore, the leadership of a list can be held liable only if the acts were committed at their initiative, approval or assistance.

 

 

 

Supreme Court Judgments cited:

 

[1]   C.A. 481/73 Rosenberg, Adv. Executor of the Estate of EIza Bergman v. Shtoessel, P.D. 29(1), 505.

[2]   Cr.A. 647/75, Klein et al. v. The State of Israel, P.D. 30(3), 275.

[3]   Cr.A. 126/76, The State of Israel v. Sheffer, P.D. 30(3), 466.

[4]   Cr.A. 216/75, Tamir v. The State of Israel, P.D. 30(2), 169.

[5]   Cr.A. 108/54, The Legal Counsel to the State of Israel v. Abadi et al., P.D. 9, 199; P.I. 19, 78.

[6]   Cr.A. 794/77, Hayat v. The State of Israel, P.D. 32(2), 127.

[7]   Cr.A. 257/79, Seviri v. The State of Israel, and cross-appeal, P.D. 34(3), 757.

[8]   Cr.A. 265/70, The State of Israel v. Lateen, P.D. 24(2), 677.

[9]   Cr.A. 763/77, Beriga v. The State of Israel, P.D. 32(2), 824.

[10] Cr.A. 190/82, Marcus v. The State of Israel and cross-appeal, P.D. 37(1), 225.

[11] Cr.A. 365, 383/81, Oshri et al. v. The State of Israel, P.D. 39(1), 113.

 

Sources in Jewish Law which are cited:

[A]      Deuteronomy16; 19.

[B]       Exodus 23; 9.

[C]       Ketubot 105b.

[D]      Mechilta (Horovitz), Mishpatim, XX 328.

[E]       Responsa Hatam Sofer, H.M. 105.

[F]       Responsa Minhat Eliezer, 16.

 

            Appeal and cross-appeal by leave from the judgment of the Jerusalem District Court (Judges A. Goldberg, D. Tal, Sh. Brenner) given on January 11, 1983 in Cr.A. 237, 293/81 in which the appeal and cross-appeal from the judgment of the Jerusalem Magistrate's Court was accepted in part (Judges Y. Or and D. Cohen).

            The appeal and the cross-appeal were accepted in part.

           

            S. Toussia-Cohen for Appellant No. 1 (Respondent No. 1 on cross-appeal).

            Y. Lalo for Appellant No. 2 (Respondent No. 2 on cross-appeal).

            M. Kirsch and Y. Roznik for the Respondent (The Appellant on cross-appeal).

           

           

           

JUDGMENT

           

The Background

           

            D. LEVIN, J. 1. The election campaign to the ninth Knesset was distinguished by a colourful and unusual phenomenon. Among the lists that contested for representation in this Knesset was a one-man list signified by "F'SH" and whose slogan was "Flatto-Sharon - the one man - for the Knesset."

            Shmuel Flatto-Sharon (Appellant No. 1, hereafter referred to as "Flatto-Sharon") was presented to the Israeli public as a wealthy person, a man of property, economically powerful, a person whose talents and initiative were worthy of support. This man had been mercilessly pursued by the French authorities, who accused him of committing business-related crimes while he was living and active in that country. The State of Israel was asked to extradite him to France so that he should stand trial there.

            At the focus of the message of Flatto-Sharon's list to the nation during its election campaign were two central themes, as follows:

            A. If Flatto-Sharon were to be elected a member of the Knesset, his extradition to the maws of French justice would be prevented, and he would be saved from the danger, distress, and discomfort awaiting him upon extradition. Therefore, a vote for him would mean that a talented, productive individual would be saved for the benefit of Israel society.

            B. Flatto-Sharon formulated a plan for a radical solution to the problem of housing (hereinafter: "The RSH Program"), which he intended to implement and carry out, irrespective of his election to the Knesset. The program, as presented and understood both explicitly and implicitly was, in short, that he, together with serious entrepreneurs and with the help of economic experts close to him, would acquire approximately fifteen thousand flats from the Housing Ministry for rental on convenient, equal terms to families of limited means and to young couples. This was the socio-economic message upon which the F'SH platform was based, the glad tidings that Flatto-Sharon brought to the voting public. His election to the Knesset would enable him to exercise his influence even more and to be at the center of socio-political activity; thus, it would help him further his program. [p. 763]

 

2. Flatto-Sharon does not have a command of Hebrew, and he therefore recruited as his right-hand man and confidant Appellant No. 2, Jacques Ben Udis (hereinafter: Ben Udis), who served as his mouthpiece (as a translator), advisor, organizer and as an effective and dynamic administrator.

 

3. Neither Flatto-Sharon nor Ben Udis was experienced at Knesset electioneering. Therefore, they engaged the services of one who was adept and experienced in this area, Appellant No. 3, Ya'acov Halfon (hereinafter: Halfon), who characterizes himself as a veteran professional in organizing campaigns for election to governmental and public institutions. He considers himself as possessing skills, experience and knowledge, and as one who knows how to organize efficient campaigns to attract supporters to vote for a certain candidate on election day. Halfon took upon himself the co-ordination of the organizational aspect of the election campaign of the F'SH list, and, during the elections he indeed showed substantial dynamism in promoting Flatto-Sharon's election, as will become clear later on.

 

4. The trio effectively constituted the leadership that guided the one-man Knesset list. They regularly conferred together, giving advice on and planning the campaign. They crossed the width and breadth of the country, and they established nearly 40 branches throughout the country, especially in development towns and settlements in the Arab sector. In all of these places, they conducted rallies and meetings, and attracted a large number of activists. The Appellants' widespread, diverse activities and the publicity campaign were craftily planned, and yielded impressive results for Flatto-Sharon, the one-man list. Not only did he surpass the one-percent threshold, but he was elected a member of the Knesset. In effect, he gathered support for the list that clearly exceeded what was required for the election of one person to the Knesset.

 

5. Not long thereafter, complaints began to be raised concerning Flatto-Sharon's fitness for election to the Knesset.

            Suspicions were raised against him, as well as against his confidants Ben Udis and Halfon who, in effect, assisted him in his election campaign, alleging corruption in promoting Flatto-Sharon's election. It was said that they had conspired to bring about Flatto-Sharon's election to the Knesset by dispensing bribes to the voters, and that through such bribes, as well as through other benefits that they conferred or promised to confer on various groups of activists and voters in general, the F'SH list garnered a large number of votes.

            The elections took place in May 1977; however, the investigation continued for a long time thereafter due to the complexity of the matter and of the events under investigation, and a charge sheet was filed in the Jerusalem Magistrates' Court only on August 8, 1979.

            Because of the importance and complexity of the case, as reflected in the substance and the scope of the charge sheet, the President of the Jerusalem Magistrates' Court decided to hold the trial before a panel of three judges. The case in its various phases continued for a lengthy period of time, so that the final decision was rendered seven years after the election. [p. 764]

           

           

THE CHARGE SHEET AND THE DECISIONS RENDERED

IN ACCORDANCE THEREWITH

 

6.         The charge sheet consists of a general section and five separate counts.

            A. The Appellants were acquitted in the trial court on the fourth count from the offence alleged therein on the view of the prosecutor because the facts on which the count was based were not proven at all.

            B. The State charged in the first count that the Appellants conspired to commit a felony, an offence under section 499 of the Penal Law, 5737-1977, and corruption (election bribery), an offence under section 122(1) of the Knesset Election Law (Consolidated Version), 5729-1969. The facts supporting this count were that in the election campaign of the F'SH list, Flatto-Sharon represented himself as someone who, together with a group of investors subject to his influence, was about to acquire flats at various locations in Israel to be rented out at a reduced price to those requiring some solution to their housing problems, viz., young couples and those with limited means. Flatto-Sharon voiced this message in his appeals to the public throughout the country, both orally and in writing; in delivering the message, making the offers and giving the promises, he was assisted by the other accused herein as well as by activists employed by them. According to the State, the acts of corruption that emerge from the facts as we shall set out in further detail later consisted of the offers and undertakings that were woven into the message, all made for the purpose of influencing the voting group in need of housing to vote for the F'SH list by promising some amorphous benefit from Flatto-Sharon's program whereby everyone interested would be granted low rental housing at very convenient terms.

 

            C. Count 2 charged the Appellants with corruption, as indicated above, by "camouflaged employment" of many activists on election day, whereby these workers were given a payment for "this disguised, camouflaged employment" in connection with activity that took place only figuratively. On the basis of the details recounted in the charge sheet, the State alleged that a large portion of these activists were not called upon to perform any work in exchange for the "remuneration" that they received, and that the payment in respect of their "activities," which, as indicated, did not actually take place, was a form of bribe to these persons so that they and their relatives would vote for the F'SH list.

            D. Count 3 also charges the three Appellants with the aforementioned acts of corruption. It charges that the Appellants gave a number of people, who may be described as community and public leaders, sums of money in exchange for which they were to influence their followers to vote for the F'SH list on election day. [p. 765]

           

            E. Count 5 charges Appellants 1 and 2 with conspiracy to commit a felony and with acts of bribery as mentioned above. According to this count, with the help of local activists in the city of Dimona, the two conspired with a group of residents that had been organized to vie a list for election to the Dimona municipal council, which was to take place a short time after the Knesset elections. This list, whose organizers and promoters chose the symbol RT (i.e., the "Pure List"), reached an arrangement through several of its main activists with the aforementioned Appellants, whereby the two lists would assist each other's election campaigns. RT would influence its supporters, estimated by its leaders to be some 2,000 strong, to vote for the F'SH list in the elections for the ninth Knesset, in exchange for which Flatto-Sharon would assist them in their contest for the city council by putting at their disposal an imprecisely specified sum of money for their election campaign, described by Ben Udis to be in the area of six figures. The State charges that this amounted to a promise by the Appellants of an unlawful benefit in favour of RT in order to obtain the votes of RT supporters in Dimona for the F'SH list to the Knesset.

           

7. A lengthy, thorough trial of this case was held in the Magistrates' Court (hereinafter: "the trial court"), and in three detailed, thorough, in-depth opinions, written by each of the learned judges that sat on the panel hearing the case, it was decided as follows:

            Flatto-Sharon and Ben Udis were unanimously convicted of the offences that were the subject of counts 1 and 5, while Halfon was acquitted on these counts. Concerning count 2, the learned Judge R. Or, in a minority opinion, held that the Appellants should be convicted on this count as well; however, in the opinion of the majority, learned Judges Shabtai and Dr. Cohen, guilt was not adequately proved; accordingly, the Appellants were acquitted on this count. The Appellants were similarly acquitted on count 3. Flatto-Sharon was sentenced to a period of three years imprisonment, nine months of which were to be served, for the commission of each of the two offences for which he was convicted, the remainder to be a suspended sentence in accordance with the terms specified in the judgment. The two terms were to be served concurrently. Ben Udis was sentenced to a period of 18 months imprisonment, all of which was to be a suspended sentence in accordance with the terms of the sentence. In addition, Ben Udis was fined the sum of 4,000 sheqalim (2,000 sheqalim for each offence) or 80 days in prison in lieu thereof.

           

8. Neither the State nor the Appellants who were convicted, were satisfied with the decision of the trial court, and each appealed to the Jerusalem District Court (hereinafter: the court of appeals), each on separate grounds and with different aims in mind.

            The State appealed the acquittals of all three Appellants on counts 2 and 3, and the lighter sentence imposed on Ben Udis. For their parts, Flatto-Sharon and Ben Udis each filed a separate appeal in which each took issue with their convictions on counts 1 and 5 and, alternatively, with the severity of their sentences. [p. 766]

           

9. The court of appeals heard all three appeals on a consolidated basis and in its judgment, none of the issues was unanimously decided. The court of appeals reversed the decision of the trial court on some counts on which Appellants 1 and 2 had been convicted, as well as on some counts on which the three Appellants had been acquitted. Thus, the court of appeals decided as follows:

            A. In so far as count 1 is concerned, it affirmed the conviction of Appellants 1 and 2 and the acquittal of Appellant 3.

            B. In so far as count 2 is concerned, the majority decided to convict the three Appellants on the charges alleged therein.

            C. In so far as count 3 is concerned, the acquittal of the Appellants by the trial court was affirmed.

            D. Regarding count 5, the convictions were overturned, and Appellants 1 and 2 were acquitted on the charges alleged therein.

            E. Regarding the sentence, it was unanimously decided to reject Ben Udis' appeal. The majority also decided to reject the appeal of Flatto-Sharon, and to reinstate the sentences handed down by the trial court notwithstanding the different conclusions reached by the trial court regarding conviction.

            The minority judge in the court of appeals, the Deputy President, A. Goldberg, held that only three months imprisonment from the 18-month sentence imposed on Flatto-Sharon was appropriate.

            F. Halfon was first convicted by the court of appeals, which sentenced him to a six-month suspended sentence, on condition that for a period of three years he would not commit an offence under section 122 of the Knesset Election Law [Consolidated Version].

           

10. Once again, the parties were not satisfied with the decision rendered by the court of appeals, and each of them filed for leave to appeal the decision, which was granted by the President of this court. Thus, we have before us four separate appeals, which we have decided to hear on a consolidated basis. The accused, Flatto-Sharon and Ben Udis, both appealed their convictions on counts 1 and 2 of the charge sheet, and the sentence laid down and reinstated against them. Appellant Halfon appealed his conviction on the charge in count 2. The State for its part appealed the acquittal of the three accused on the charges in count 3, and the acquittal of Flatto-Sharon and Ben Udis from the charges in count 5; in this regard, the State seeks to reinstate the judgment of the trial court. [p. 767]

 

 

 

 

THE PRINCIPLE OF FREE ELECTIONS IN A DEMOCRATIC SOCIETY

 

11. This case deals with one of the fundamental, crucial elements of a democratic society, which has been a bedrock of the system of government in effect since the founding of our country, and of which we are proud. Thus, the case before us is of cardinal importance, and it justifies the broad, in-depth treatment by the trial court and the exhaustive, instructive hearing before us.

 

12. Political democracy is, first and foremost, a system by which, through competition for sanctioned authority, persons are elected to lead the body politic: G. Sartory, Democratic Theory (Detroit, 1962) 124. One can state that contemporary democratic society incorporates two principles: minority control of the majority, in other words, democracy is a political system which guarantees the influence enjoyed by the minority over the majority, who compete for the votes of the electors and are elected by them, and who for a time are entrusted with managing the affairs of the state. (See p. 127 at ibid.).

 

13. In Israel the democratic system is implemented by means of the proportional representation method, which satisfies the basic principles of a democratic regime. An instructive, exhaustive explanation of this form of representation is given by J. F. Ross in his book Elections and Electors, Studies in Democratic Representation (London, 1955), at 12:

 

"Proportional representation, then, is the principle that in a party election.... the distribution of seats on the elected body between the parties shall correspond with the distribution of their votes by the electors. Or, putting it into other words, we may say that the principle of proportional representation requires that the distribution of opinion in the elected body shall correspond with the distribution of opinion amongst the voters who elected it." [p. 768]

 

            Thus, the system of proportional representation attempts to ensure the realizations of the important principle in democratic elections, namely, that the public opinion and the people's will be accurately reflected, so that it may guide the party in power, whilst limiting the ability of the party to abuse the authority that has been given to it by virtue of the will of the majority, and by reflecting the majority's desired policies. The thread connecting the philosophy of the citizen to his elected representatives, who are supposed to express his desires and represent his views in the legislature, is the election platform, that is to say, the ideological foundation formulated by the candidates and presented to the public in order to influence the voter on election day. The platform is supposed to articulate the basic principles and the policy that represent the philosophy of the candidate and the political body he represents. It is possible that this platform will be a broad one, encompassing all matters of the state and the citizen, but it is also possible that it will be narrow and circumscribed and will articulate a formulated policy in specific areas; sometimes, emphasis in the platform will be on means of action, while at other times it will concentrate on a person or on a leader, and will seek identification with that person and belief in that person's ability to lead the people in the proper, correct manner. The common element here is that all candidates for election, who seek the voter's confidence and promise to represent his views and desires, set forth the principles of their policy and their political leanings by way of publicity and propaganda. The voter casts his ballot, therefore, for the list of candidates whose platform comes closest to his own inclinations.

           

14. In order to achieve this important, basic goal, namely, proper, genuine proportional representation of the opinions and views of the community of voters in the legislature of the state, the Knesset, and in order to make certain and to ensure that those elected will not abuse the prerogatives of their elected office, scrupulous attention must be paid that the elections will be free and without any taint of coercion, unfair influence or corruption, and that it be clear that the citizen, in exercising his right to vote and in implementing his political will by means of the ballot, has done so freely and in accordance with his unfettered judgment. A coerced election or a bought election distorts and perverts the fundamental principles of genuine democracy. Depriving the voters of the freedom of choice and of independent deliberation shatters and destroys the heart and soul of the democratic system, which should be preserved and maintained in order that power will not be turned over to persons who will seek to impose their views on everyone else.

 

15. The key to the process of free elections is that the voter, and he alone, at his discretion and of his own free will, shall decide who will be the preferred leaders and who, in his view, are fit to lead the people and to improve the citizen's lot. This requires exercising a certain degree of independent judgment. Sometimes it will be deliberate, serious and profound, and sometimes it will turn out to have been done in error, rashly and naively; but always, and this is the essence of the matter, it is the true, willful choice of the voter, reflecting the will of that citizen at that time. There is no doubt that this vote will be influenced by various factors, including a proper, legal campaign of information and publicity waged by the parties and lists contending for the elector's vote, namely the platform which is presented to the voter, which may on the surface seem colourful and optimistic, and perhaps even illusory and evocative of false hopes. It is reasonable that the judgment and choice of the voter will also be influenced by the lessons learned from the past and from the achievements or failures of the administration that formerly guided the affairs of state, all in accordance with the citizen's particular views and approach. However, the vote may not be influenced by improper favours and corruption on the part of those contending for the elector's vote, acts that negate the independence of the voter and his freedom of choice. Therefore, the Israeli legislator attended to maintaining clean elections through rules prescribed in the Knesset Elections Law [Consolidated Version] (hereinafter: the Election Law). [p. 769]

 

THE MEANING OF "BRIBERY, CORRUPTION AND

ELECTION BRIBERY"

 

16. Section 122 of the Election Law provides that an act intended to obtain a citizen's vote by an act of bribery or by means of threats, or in other words, as I described above, by way of a forced or bought vote, is an offence justifying harsh punishment either by imprisonment or fine. Subsections (1), (2) and (4) of section 122, that are the important sections for our purposes, discuss a wide variety of acts of bribery that are intended to influence the vote of the elector by dispensing favours. Subsections (3) and (5) deal with acts intended to obtain the vote of an elector by various types of threats. The common element to all these acts is that, whether due to a bribe or whether due to submission in the face of threats, the voter is denied his freedom and is deprived of his independent and free will at the time of his vote.

            In our situation, subsection (1) of section 122 includes:

           

"a person who gives or offers a bribe for the purpose of inducing a voter to vote or refrain from voting, whether generally or for a particular candidate's list. "

 

            It is absolutely clear and incontrovertible that in order to establish this offence, one must prove that a bribe was given or offered, and must show that such giving or offer was intended to influence the voter in his vote. One may ask the question - What is the meaning of "bribery?" Section 123 of the Election Law basically adopts, mutatis mutandis, the rules prescribed in section 293 of the Penal Law regarding bribery, and therefore we will quote section 123 for ease of subsequent discussion:

 

"With regard to a bribe, it shall be immaterial -

            (1) whether it is money, money's worth, a service or any other benefit, except transportation of a voter in a vehicle to and from the polling-station for the purpose of his voting;

            (2) whether it is for an act of the taker himself or for his influence upon an act of another person;

            (3) whether it is given by the giver personally or through another person, whether it is given to the taker personally or to another person for the taker, whether it is given in advance or ex post facto, or whether the person benefiting from it is the taker or another person." [p. 770]

           

            Another question that we shall address is the degree of intent that must be proved regarding undue influence on the voter in connection with his vote.

            Prima facie, one might ask what the reason is for this prohibition against influencing the voter by way of dispensing favours. After all, the recipient of a favour exercises his civil right to vote, and he votes for whom he wants, so what consequence is it if his choice is influenced by a payment or by a favour, so long as his freedom to exercise his right to vote in accordance with his wishes was not taken from him. Anyone asking this question should be enlightened and made to see and understand correctly what genuine democratic elections are all about, as explained above. Freedom of choice election means not merely the physical freedom to cast a ballot in the booth, but also, and principally, the complete freedom to go through the voting process as a free person, both psychologically and intellectually. Therefore, any act that may reduce or eliminate, either directly or indirectly, the voter's freedom of thought and his ability to give genuine expression to his preferred plan of action and his philosophy in accordance with his independent judgment - because of a favour that inhibits his freedom or because the opinions of others have been imposed on him - violates the basic principle of freedom and independence of choice. Hence, acts such as these are fundamentally improper. A different or less harsh approach to this subject, that would reconcile itself with conduct of this type and that would follow it, would necessarily undermine the democratic process and would distort its character, because the inevitable result would be that he who pays the piper would call the tune, as well as exercising the reins of power with all that it implies; there can be no greater perversion of the principle of the democratic system in an enlightened society.

           

17. In light of the foregoing, in establishing for ourselves the boundaries of conduct that amounts to election bribery, we should examine the accepted interpretation of the offence of bribery under the penal laws. In doing so, we must examine the legislator's intent as it can be understood from its definition in both the letter and spirit of the law, and according to the legislative purpose that is implicit in the provisions of the law and the interpretation thereof in the case law. "The law is a mechanism for carrying out legislative purpose, and therefore it should be interpreted according to the purpose inherent therein" (C. A. 481/73 [1], p. 516). The words of the law do not always in themselves give a clear, unqualified meaning to the expressions contained therein; therefore, it is proper for the judge in interpreting the law to ask himself what normative, social goal this law is seeking to accomplish, inasmuch as:

 

"The law is an expression of policy..... The words of the law were chosen because they were intended to realize a certain policy. Interpretation is, therefore, a process intended to uncover from among the range of possibilities in the language that meaning that will give realization to the law's purpose..... Just as the law is a 'purposeful creation,' so too is interpretation a 'purposeful process' " (A. Barak, On the Judge as Interpreter, 12 Mishpatim (5742-43), 248, 252). [p. 771]

 

            Thus, the issue of a bribe that was given to or received by a public employee has been broadly, consistently, and thoroughly interpreted in accordance with its legislative purpose. One can summarize matters generally as follows: In order to prove all of the elements of a charge of bribery under the penal laws, the prosecution must prove that a public servant was involved; that a favour in form of a bribe was taken or given; that the taking or giving was for an activity connected with the public servant's duty; and that the giving or taking of the bribe was with the intention of obtaining a substantial result, either immediately or at some other time. All these elements require proof. Since we are dealing here with a criminal proceeding, which requires proof of the elements of the offence beyond reasonable doubt, when all of the evidence is taken together, generally in light of the totality of the circumstances, attention should be paid not only to the obvious facts, but also to what these facts imply, the logic embedded therein and the fabric of relations between the giver and the taker; their desires and hidden intentions should be examined, as should other signs, indications and elements that become evident or are reasonable from the recounting and unfolding of the event. This is because when all of these factors are interwoven with each other, they establish the probative evidence as well as define the boundaries of the act in its proper square - whether the square is white, bearing testimony that the act is untainted, or if the square be black, bearing testimony that the act is improper. In examining the circumstances in their entirety, it is important that the examination be done with a comprehensive, realistic and careful assessment of the case, but not necessarily rigidly and punctiliously, provided that we always keep before us, on the one hand -what the purpose of the legislative act is, and what the legislative norm is that the legislator seeks to accomplish, and on the other hand - what the giver or the taker sought to obtain from the act. The foregoing is a summary of the extensive case law on this subject, and it is sufficient to point to several judgments in which rules bearing thereupon have been set down and reviewed (Cr. A. 647/75 [2]; Cr. A. 108/54 [5], and others).

           

18. When an offence of bribery committed by a public employee is proven, everyone will denounce him vociferously because of this. Why? Because, in effect, he has abused his position and has violated the trust given to him as a public servant. From the normative point of view, it is expected that a public servant will fulfil his duty and will exercise the authority given to him to the best of his discretion in a business-like fashion by thinking and deciding freely. A public servant who takes a bribe forfeits his own will and subjugates his freedom of thought to the will of the giver, who thereby seeks to achieve his desired purpose. This is why the matter is viewed so seriously. This is the result that the legislator sought to prevent in promulgating this legislation, because it disrupts proper administration and harms its integrity.

            Thus, bribery generally, and election bribery a fortiori, as explained above, is meant to subjugate the will and freedom of choice of the citizen, and to render his vote, which should be free and independent, dependent on something else. The purpose of the law is to prevent this situation and to preserve the integrity of the election.

           

19. We will discuss later in the appropriate context the principles regarding bribery and election bribery that have been set down in Israeli and English case law. However, it seems to us that it would be instructive and useful to describe the treatment of fraud in the Jewish tradition and in Jewish law. Bribery is viewed extremely negatively, in Jewish law and tradition. We already find in the Scriptures how negatively our forefathers viewed the act of bribery, which they condemned in absolute terms as follows: [p. 772]

 

"Thou shalt not wrest judgment; thou shalt not respect persons; neither shalt thou take a gift; for a gift doth blind the eyes of the wise, and pervert the words of the righteous" (Deuteronomy 16; 19 [Jewish Publication Society Translation] [A]).

 

And further:

 

"And thou shalt take no gift; for a gift blindeth them that have sight, and perverteth the words of the righteous" (Exodus 23; 8 [Jewish Publication Society Translation] [B]).

 

            The following brief, but bold words from the Tractate Ketubot 105b [C] are also apt here:

           

"The rabbis taught: 'thou shalt take no gift' means not only a monetary gift, but even verbal corruption is forbidden, since the bible does not say 'thou shalt take no bribe.' "

 

The Tractate continues:

 

"What does verbal bribery mean? It means, for example, as in the case of Shmuel, who whilst crossing the bridge encountered a man who proffered his hand.

Said Shmuel: 'Who are you?' He replied: 'You are to sit in judgment on my case?' Shmuel answered: 'I am disqualified from hearing your case.' "

 

            In other words, even if the benefit lay only in the fact that the person assisted Samuel, nevertheless, when it was understood that he was about to stand before him in judgment, that alone was grounds for disqualification. The Tractate Ketubim continues:

           

"Where there is bribery, the hearts of the giver and of the taker become one. Says Rava: Why is bribery forbidden? It is because someone who takes a bribe from another favours him and is as one with him, and nobody would do wrong to himself." (See also Mechilta (Horovitz), Mishpatim, XX 328[D]).

 

            That is to say, from the moment that a person takes a bribe from another, he forfeits his selfhood with respect to that person, and he no longer enjoys the same freedom of decision or ability to make an independent judgment on merits.

            This strict prohibition against bribery in Jewish tradition is not limited only to judges, but applies to everyone dealing in public affairs; such persons must act equitably and faithfully, and their decisions must be without taint or blemish. The Rabbinic arbiters of Jewish law went even further, maintaining that:

           

"The prohibition against the taking of a bribe applies not merely to a judge, but to all those appointed over and who deal with public matters, even if their decisions are not, strictly speaking, religious law, and they may not deviate from the law because of liking or disliking, and certainly not by taking bribes." [p. 773]

 

            So our sages ruled and held regarding bribery generally and what we call election bribery. Rabbi Moshe Sofer, among the most prominent Hungarian rabbis (during the late 18th century and early 19th century), held even then that if competent witnesses testify that some of the electorate for the community rabbi took bribes, the election is void and new elections must be held. The Rabbi went further, holding that "if the witnesses testify that the rabbi himself instructed that the bribes be given, he is disqualified from serving as a rabbi until he repents." With respect to those taking the bribes, some took the position that they were disqualified from appointment to a public position, and in any event they were not allowed to participate in the re-election for the community rabbi, even if they returned the bribe, repented, and swore on oath that they would not repeat such a misdeed in the future. The reason for this was explained as follows:

           

"...because they already favour him, they will not retract their actions and they remain biased forever."

 

            See Responsa Hatam Sofer, H.M. 105[E] and see also Responsa Minhat Eliezer, 16[F]. For references to their opinions, see the volume of A. Shoheman, Deeds Accomplished Through the Violation of Law (Hebrew). (Jerusalem, 5741), 232.

           

THE ASPECTS OF THE CHARGE SHEET

 

20. In examining the charges alleged against the Appellants in the charge sheet to the effect that their Knesset campaign conduct was tainted by election bribery, there are four different aspects to which we will relate as follows:

 

            A. The programmatic aspect - Was the platform presented by the Appellants to the public tainted by bribery? This subject was discussed at length by the lower courts in connection with Count 1.

            B. The organizational aspect - Did the extent and the way in which the Appellants employed activists stray into the realm of the grant of impermissible favours? This will be addressed in our discussion and examination of Count 2.

            C. The nature of the influence - Did the Appellants acquire, by means of favours, influence over community leaders and personalities so that the latter would influence the members of these communities to vote blindly for the F'SH list at their leaders' behest? This is the bone of contention regarding Count 3.

            D. The "deal"- Was the agreement between the F'SH list and the RT list that was supposed to compete in the local Dimona elections an illicit transaction reeking of the odour of bought votes? This is the subject of Count 5 of the charge sheet. [p. 774]

           

           

           

PRINCIPLES REGARDING THE SCOPE OF INVOLVEMENT

           

21. Pending our treatment of each of these aspects of the charge sheet, this is a convenient spot to address a number of legal issues whose resolution at this juncture, even before I address each of the subjects separately, is desirable:

 

            A. Does liability, under the penal laws and under section 122(1) of the Election Law, on the part of one who gives a bribe depend on proving a corrupt intent on the part of the bribe's recipient as well?

            The law on this matter is that with respect to the crime of bribery there is no need for there to be mutuality of intent between the giver and the recipient of the bribe. This rule has been established in Israel in connection with bribing a public official:

           

"In principle, there is nothing to prevent a situation in which the taker of a bribe is innocent while the giver is liable for bribery, or vice versa. The lack of mutuality may be due to the different intent of each party at the time the act was carried out" (Ben-Porat, J. (as was her title then) Cr. A. 794/77 [6]) pp. 128-129.

 

She continued:

 

"In my opinion, there is a possibility of non-mutuality in both cases: In the second case - when the giver of the bribe intended to bribe a public official who himself was not aware of such intent; and in the first case - the official demanded payment as a bribe whereas the giver was not aware of that" (ibid., p. 129).

 

            This principle has been established in England in connection with election bribery:

           

"Where the intention of the giver is proved to be corrupt the intention of the recipient becomes immaterial so far as concerns the offence of bribery by the former." (J.F.N. Rogers, On Elections (20th ed., Vol. 2, 1928) 269.

 

            B. Is the criminal act (the actus reus) of the offence of bribery under section 122(1) of the Election Law consummated by a promise which is a form of an offer of, or must the offer itself be realized in order to establish this element of the offence?

            From the point of view of the offerer of the bribe, the criminal act is consummated as a component of the offence of bribery with the very act of the offer. Section 122(1) of the law prescribes this explicitly when it speaks of "one who gives or offers a bribe in order to influence...." Also in English law, a promise of a favour is enough to consummate the criminal act required of someone who offers an election bribe, but stronger evidence is required that the offer was a bribe (see, Representation of the People Act, 1949, c. 99(2), and the same holds true at common law. See, for example, Coventry Election Petition (1869) [12]. [p. 775]

           

            C. Can the Appellants' claim that they did not consider their acts and promises to fall within the prohibition established by section 122(1) provide a defence against their conviction?

            The Appellants do not claim lack of knowledge of the prohibition in the law against election bribery, nor do they claim mistake of fact within the meaning of section 17 of the Penal Law. Rather, they claim that they did not know that their acts fell within the scope of the normative prohibition of section 122 of the Law. The answer to their claim is found in section 12 of the Penal Law, which provides that:

           

"Ignorance of the law shall not serve as the basis for exemption from criminal responsibility, unless it is specifically provided that knowledge of the law is one of the necessary elements of the crime."

 

            An exhaustive rule in connection with the interpretation of this section was set down in Cr. A. 257/79 [7], at 773:

           

"The provision of section 12 regarding lack of knowledge of the law which does not excuse criminal liability relates to the offence itself, that is to say, the accused is not entitled to argue that he did not know that a certain act is prohibited under the Penal Law. However, when knowledge of the existence of a certain legal condition constitutes one of the elements of the commission of the offence, then a good faith mistake by the accused concerning the existence or non-existence of this element is a mistake of fact.

Regarding the rule that ignorance of the law is no excuse, it has been held that it applies only to the criminal law, and ignorance of the non-criminal law does not fall within the rule..." (Emphasis added - D.L.).

 

            In our situation, we are dealing with a criminal norm (section 122(1)), and the Appellant's claim concerning the legal construction of the norm. This type of mistake does not fall within the scope of the defence afforded by section 12 of the Penal Law (see the article of Prof. S. Z. Feller, Mistake in Criminal Law and in Extra-Criminal Law: Where is the Boundary? Mishpatim 5 (5734), pp. 508, 511-12). We add here, for purposes of comparison only, that in the United States there is no uniform legislation concerning mistake of the type mentioned above with respect to the promises of an election candidate (see, for example, 26 Am. Jur. 2d (Rochester and San Francisco, 1966), at 108).

           

            D. Can the claim of the Appellants, and in particular that of Halfon, that the actions attributed to them in the four counts reflect the accepted manner of elections in Israel, provide a defence?

            The answer to this question is no. This claim cannot provide a defence against the Appellants' conviction, if indeed they are found guilty, because the fact of the commission of unpunished criminal acts by others in the past does not validate the commission of these acts in the present or in the future.

Similarly, in connection with the custom of distributing holiday presents to public servants by those with whom they have contact, it was held in Cr. A. 126/76, p. 470, that: [p. 776]

 

"The fact that others give with the same intention and for the same purpose does not alter the character of this particular act of giving, nor does it make this objectionable custom a legally proper act."

 

            This argument, as well as the claim regarding the lack of knowledge concerning the correct normative interpretation of the Appellants' actions, may be heard, if at all, in connection with the degree of the punishment to be meted out because there, due to the lack of prior case law on the subject, it is possible that the campaign activists were not properly warned and made aware of the significance of their conduct.

 

THE PRAGMATIC ASPECT - THE RSH PROGRAM (COUNT 1)

           

22. It is only natural that every candidate or list of candidates will at campaign time seek to capture the heart and mind of the voter by means of an attractive platform. I have already indicated above that a platform may either be broad, serious, and directed to the issues, or narrow, simplistic, and directed to unattainable aspirations; it may either articulate the fundamental outline of a clear, pragmatic policy, or it may be general, non-obligatory, and unattainable - both are proper, legally speaking, and it is the voter who by his vote decides the seriousness of the platform and of the candidates who stand behind it.

            A candidate may view as a panacea a solution of the problems of housing for those of limited means and for young couples, proposing ideas to this end and focusing his election campaign on this issue. This type of platform is proper, and should not be invalidated. However, if such a platform includes, for example, not merely a plan of action and details on how it can be realized, but an actual promise to give residential apartments on tempting terms, to a certain voter or group of voters who vote for that candidate, then such a platform will be deemed invalid and tainted by election bribery.

            Between these two possibilities - the first legitimate and the second illicit - there is a broad expanse within which various appeals to the voting public will be marginal in terms of legitimacy. Putting the platform into its proper category, as either legitimate or illicit, requires examination of the particular circumstances of each situation; evaluation of the platform's contents and its significance, explicitly or implicitly; and evaluation of how it is presented to the public, and application of the legal principles reviewed above to these.

            Therefore, in approaching the decision of the lower courts in connection with Count 1, we ask ourselves - What has been proven concerning the ideological platform of the F'SH list, which concentrated on the RSH program (Revolutionary Solutions for Housing)? What are the ensuing legal conclusions regarding the legality of this platform, and was the RSH program as presented by the F'SH list tainted, as alleged, by election bribery? [p. 777]

           

23. The court of appeals adopted the principal findings of fact of the trial court (pp. 3-7, 11 of the decision of the court of appeals), and we see no reason to interfere with or to alter these findings. The principal facts established are as follows:

            A. Housing was the central issue in Flatto-Sharon's election advertising.

            B. The election advertising emphasized that apartments would be acquired through Flatto-Sharon's resources and through the resources of investors under his influence.

            C. Flatto-Sharon had the intentionally cultivated image of a wealthy person who was financially capable of delivering what he promised. This image contributed to lending a degree of credibility to his promise.

            D. At various opportunities prior to the election, Flatto-Sharon's undertaking to purchase 500 apartments in Kiryat Shmona for subsequent rental at a low price to young couples was stressed.

            E. On April 26, 1977, Flatto-Sharon held an election rally at Physicians House in Tel Aviv at which he announced that he intended to purchase 20,000 apartments for subsequent rental at a low price to young couples.

            This plan was also announced at election rallies at other sites in Israel, in newspaper advertisements (E/58, E/117, A/4-B, and in a publicity film strip aired on television (A/A-36A).

            F. Not only was the plan presented and promises to make good on it publicized and articulated, but representatives of the list initiated and conducted registration of young couples interested in solving their housing problems in this manner. Actual registration was conducted as follows:

            (1) Before and after the gathering at Physicians House.

            (2) At the F'SH list's branch in Dimona, through witnesses Rachel Cohen, Marco Zanti and their helpers, pursuant to Ben Udis' instructions for conducting the registration.

           

            (3) In Bet Shemesh, after an election rally there on the evening prior to the elections by the local co-ordinator for the F'SH list in accordance with Ben Udis' guidelines.

            (4) In Ashkelon, registration was conducted by the local co-ordinator for the F'SH list, also in accordance with Ben Udis' guidelines.

            G. The purpose of the registration was not, in Ben Udis' words, to establish a "movement," but to provide real solutions from private sources to the problem of housing, and on the basis of this promise to acquire the votes of the plan's registrants for the F'SH list. [p. 778]

           

            The trial court decided on the basis of these proven facts that a promise of residential apartments at a low rental was an illegal favour. Such a favour was indeed offered to the voters by Flatto-Sharon and Ben Udis; thus, the required causal connection between the favour as offered and the vote as cast by the voters was established. Accordingly, the plan as presented to the voters, especially in tandem with the registration campaign, was tainted with election bribery, and those responsible are guilty of the acts attributed to them in Count 1.

            The court of appeals took issue with the trial court on two points:

            A. In light of the "common sense" test set down by the court in determining the meaning of bribery under section 122(1) of the Election Law, the court of appeals held in contrast to the trial court, that the advertisements that were taken out by the F'SH list, in which young couples were called upon to participate in the RSH plan, was not an offer of a bribe but rather election advertising. The reason for this was that the advertisements failed to mention the source of the funds for purchasing the apartments, nor did they suggest that joining the "movement" would solve one's housing problems. The court of appeals further held that for the purpose of deciding whether the housing plan was an offer of a bribe to voters, the court would view the factual situation in entirety rather than splitting it up into discrete factors. Thus, the fact that the advertisements are not per se an offer of a bribe was not enough to rule out the conclusion that given the entire factual context, the offer of a bribe occurred. I accept the approach of the court of appeals, and thus I will deal with the facts and circumstances in their totality and draw my conclusions accordingly.

            B. The trial court felt it necessary to clarify whether the causal connection between the offered favour and the actual vote had been proven. The court of appeals was of the opinion that because everything done in the election campaign was for the purpose of influencing the voter, the question that needed to be answered was not the extent of the causal connection, but rather if the facts involved an offer of bribery. If the answer is yes, then the conclusion that follows is that the offer was intended to influence the voters.

           

24. Presentation of the aforementioned housing plan raises, as aforesaid, the following basic legal question: What is the difference between an election platform, which by its nature includes the promise to do good, which may be permissibly presented to the voting public, and does not constitute bribery and express or implied promises of favours as compared to the same platform, which might be regarded as being tainted with bribery?

            The distinction required to answer this question as I presented it has been made in American courts, and it appears to me that the principles that have been established in these judgments are also applicable to the Israeli electoral system.

            In the case of Prentiss v. Dittmar, Judge Jones held on page 1022 as follows: [p. 779]

           

"There is a wide difference between a promise of this character and those multifarious pledges made by candidates in the interest of reform, economy, and a rigid and effective administration of office in compliance with their official oaths. The latter are made in the public interest, and are consistent with personal fitness. The former savors of vicious tendencies, involving a personal pecuniary consideration offered by the candidate in order to accomplish his election, in which the test of fitness is not an element."

 

            Another source (26 Am. Jur. 2d, supra, at 109-110) characterizes promises that do not amount to a bribe, thus:

           

"The thing offered is of public nature pertaining to the public, and not to individuals, and the parts to be influenced is a whole country in a manner whereby every inhabitant thereof is to be benefited."

 

            There is no doubt that the housing problem of young couples is a matter of cardinal social-public importance, and therefore there is nothing to prevent any party or candidate from choosing to focus its ideological platform during its election campaign on this special, important subject. However, in this situation, the promise included in the F'SH platform and that which its presentation to the public implied, was not intended to provide a general, public solution to the problems of housing. In this situation, the emphasis was placed on purchasing apartments from the private resources of Flatto-Sharon for subsequent rental to a certain sector of the public who registered, whether through newspaper advertisements or at a rally at Physicians House, or through the F'SH co-ordinators in Dimona, Ashkelon or Bet Shemesh. In this, the program exceeds the presentation of a platform that describes an acceptable promise by means of suitable election publicity, and becomes instead a specific, intentional bribe. Thus, we have the answer to the argument made by learned counsel for Flatto-Sharon, Advocate Toussia-Cohen, that the offer of the solutions did not contain the necessary specificity to render the offer corrupt.

            The fact that F'SH's programmatic platform stated that the apartments "were to be turned over for rent through the local authorities, with an option to purchase the apartment after 10 years" (the issue of turning over apartments through the local authorities was also raised in other places, such as election rallies in Dimona) - is of no consequence. For the following reasons, such an offer cannot confer upon the promise a general, public character intended for the public at large:

            A. In effect, the registration was not done through the local authorities, but rather through F'SH activists. This fact reinforces the conclusion that the housing plan was intended to constitute a concrete solution for those people who would be registered by F'SH activists, rather than a general, institutional solution. [p. 780]

 

            B. Even if the registration had been done through public institutions, the nature of the promise would not thereby be changed, because funding of the program would still be through Flatto-Sharon's private resources, a fact that was emphasized in the election campaign by high-lighting the close connection between Flatto-Sharon and the program, because even if the registration for the program and the distribution of apartments had been done through the local authorities, it would have not turned Flatto-Sharon's promise into a purely philanthropic promise or a legitimate act of charity. The conclusion is not altered even if we add to the institutional registration and distribution Flatto-Sharon's declaration that he would make good on his promise regardless of whether or not he were elected. Philanthropy should be encouraged, and those who contend for elected office should not be prohibited from performing such acts, although it is desirable that they should not be done conspicuously but rather should be done discreetly (Wigan (1881[13]).

            It is natural that a philanthropist, or an act that carries with it a certain benefit, enjoys popularity among its beneficiaries. This is understandable, and there is nothing illegitimate in it per se. However, because acts of philanthropy or the conferring of a benefit so close to election time may serve as a camouflage for voter bribery, it is incumbent upon us in such circumstances to examine closely the true intent of him who makes such an offer of philanthropy. The intent of the offerer, which naturally is in his mind, must be examined in the light of what is suggested by the facts of the matter, as well as in regard to the fundamental motive or purpose of the philanthropy or benefit. If it is clear from the facts that the motives underlying the generosity of the offerer are simply concrete means of expressing his generosity, integrity, and benevolence, his intent is certainly proper and even desirable, and it is allowed. If on the other hand, the motivation or purpose for the philanthropy or benefit is in effect to garner the votes of grateful voters who received or were promised favours, then the intent is improper and points to an illegal act. When the intent of him who dispenses the favour is a mixed bag of both the permitted and the prohibited, the guiding principle that emerges from the English case law is that both motives may have guided the philanthropist. In such a case, it has been found that we must examine which motive is dominant, because the dispensing of the favour will amount to giving an election bribe only if the motive of corruption is the one that guided the person in his action (Rogers, supra, at 282-290).

            Israeli law has ruled on the issue of the dual concurrent motives of one who gives a bribe (or offers a bribe), but in connection with benefits dispensed to public servants rather than in the context of elections. We are here speaking of the judgment of this court in Cr. A. 265/70 (hereinafter: the Lateen Rule). There, Judge Sussman held at p. 679, as follows: [p. 781]

           

"It is also true that if the money is given for a mixed activity, that is to say, both a proper one and one connected to the position of the accused, the accused is liable. However, before convicting, the judge must be convinced that the money was given on the basis of this dual motive."

 

            The common denominator between the English rule regarding election bribery and the Lateen Rule, Cr.A. 265/70, regarding bribery of a public official in connection with the performance of his duties is that if the true intent that guides the giver of the bribe is improper and corrupt, conviction is called for.

            When we speak of favours dispensed to a public servant, the fact situation is generally simple and uncomplicated, and involves a two-party relationship. In such a situation, it is easier to discover the true intention of the giver; and it is enough that if, upon an analysis of the facts, it becomes clear that the intent of the giver clearly resulted from a dual motive, one proper and the other improper, the true intent will be revealed and the giver will be found liable for bribery.

            In dealing with election campaigns and the complex process by which candidates for election influence the voters, the factual background is most complicated. There is a wide diversity of situations and possibilities. A candidate or a list does not necessarily appeal to a given individual, but to the public at large, with a variety of levels, ways of thinking and manner of reactions. Capturing the heart and mind of the voter involves the exercise of different, often clever means of influence and persuasion. Under such circumstances, it is significantly more difficult to discover the true intentions of the person who committed the act. It is possible that a certain action by a candidate or his supporters may be fundamentally tainted in purpose and in underlying motive by an intent to bribe, yet this action will nevertheless be accompanied by a fundamentally positive act with pure motives. The opposite is also true, namely, that a certain action whose fundamental purpose and whose underlying motive are positive and without taint, may yet turn out to be accompanied by an act whose fundamental motive has despicable traits which bear an imprint of illegality.

            Therefore, in situations such as these, in establishing the true intent that guided the person who committed the act, broadly speaking, one should determine intent through the distinction made in England between the decisive (dominant) motive and the secondary motive since it is the dominant motive that leaves its imprint on the true intention of the person who committed the act.

            Therefore, both pursuant to the Lateen Rule, Cr. A. 265/70, that deals with bribery of a public official, and to the English rule, which provides guidance regarding election bribery, the principle is that one should examine the facts, strictly and carefully proven, and assess everything that emerges from the act under scrutiny, in order to reach the correct conclusion concerning the central element of the offence of bribery - the intention of the giver of the benefit. This examination should be made pursuant to the guiding principles reviewed above and in accordance with common sense, paying attention to the various motives that underlie the act and, with respect to election bribery, to the extent possible, by examining the dominant motive - if it exists. [p. 782]

           

            There is no doubt that applying the principles and distinctions to an act is no simple task, but it is always possible to be aided by precedent and by the test of logic. Thus, for example, dispensing benefits generously to the voters at election time - uncritically and with no concern for the identity of the recipient - leads one to the general conclusion that this is no mere act of benevolence, but an act intended principally to influence the voter and his vote through the enticement inherent in the promise or the actual giving of the benefit (East Nottingham (1911) [14]). The result is not different if such an act is accompanied by another, incidental act that, while it is without taint, is only of marginal importance.

            It is correct, as a general principle, to hold that in such circumstances, the correct distinction will be made and the proper result will be reached through the "criteria that common sense dictates" (Cr. A. 763/77, p. 827).

           

            25. Moving from the theoretical to the concrete issue before us, it is noted that the RSH program, as it was presented to the public, was neither an ideological platform that espoused a socio-economic position, nor the expression of philanthropy and generosity of an enlightened person who held the common weal and society's welfare paramount. When one strips away the outer raiment, the concrete, unadorned program that remains is simply that Flatto-Sharon personally promised substantial favours to the voters generally, and to young couples and to those defined as needy-who were enticed to register for the program - in particular, for the clear, transparent purpose of influencing the voting public by the glitter of the offer and enticement contained therein to vote for the F'SH list - the one-man list of a kind-hearted soul.

In his public appearances, Flatto-Sharon saw fit to emphasize more than once that he would make good on his promise, whether or not he were elected. On the face of it, one could conclude therefrom that he was making a point of emphasizing that he was not seeking to influence the voters through his promises. However, any reasonable person would understand and draw the conclusion that this statement was intended to reinforce to listeners the credibility of the promise and the earnestness of the promisor, and that it was aimed at enhancing the influence of the promisor to acquire votes, because of the image of credibility that his words conveyed. One can add that there is also the sneaking suspicion that this statement sought to confer upon the promise a cloak of legitimacy, and to distract the attention of those charged with ensuring a clean election from the offer's basic corruptness. [p. 783]

            The fact is that even after Flatto-Sharon succeeded in his election bid thanks to the votes of a relatively large number of voters, he did nothing to make good on his promises. This fact, per se, still does not indicate even by virtue of a retroactive examination of things, that an intent to bribe was part of the platform of the RSH program from the beginning. This is a dangerous and not at all sure way to examine campaign promises, because many of the promises made by all of the lists during an election are not kept afterwards. Practically speaking, every platform that is presented to the public is accompanied by various promises, where it is clear from the outset that not all of them can be kept; and some times only the most minuscule portion of that which is promised is kept. However, when examining the event in different contexts and from different angles, this fact can also suggest what the primary intent is, and can be considered as part of the general calculation. It is possible to hold that in a given situation, we are indeed not dealing with a genuine promise made pursuant to true motives, but with the promise of a favour - lacking all substance from the outset - which was intended to influence the voter (F. R. Parker, Conduct of Parliamentary Elections (London, 7th ed., by H. W. Wollaston, 1970) at 306. The trial court and the court of appeals were correct, therefore - each on different grounds - in reaching their respective conclusions that the F'SH list promised housing assistance to the voters, to be financed from Flatto-Sharon's own resources, with the intent of influencing the voters by means of this favour to vote for his list on election day; in so doing, those responsible for formulating the RSH program and for presenting it to the public committed an offence under section 122(1) of the Election Law.

 

THE ORGANIZATIONAL ASPECT-

EMPLOYING ACTIVISTS (COUNT NO. 2)

 

26. The modern election campaign is a sophisticated, complex, and diverse activity. It is not just for amateurs; well-informed professionals, experienced and well-versed in public relations and political campaigns, also take part. Therefore, one should neither expect nor demand that only unpaid volunteers who identify with the candidate will take part in the election campaign. One must examine the organizational aspect of the election campaign of the lists from the starting point that the various parties, movements, and individuals contesting for election will use paid activists in the areas of both organization and publicity. There is nothing improper in this. Indeed, it is possible that these activists - who work in specific areas to influence the voters to prefer their candidate over others on election day - instead of being merely persuaders will become persuaded themselves, and that they who praise and glorify the list from which they receive payment to the public, will themselves vote for that list. On the basis of this fact alone one cannot say that in such a situation the election is tainted by the impropriety of corruption and that harm has been done to its integrity, and one should not accuse those who pay such activists for their services. On the other hand, when an activist is defined as such only figuratively, and his actions are "hypocritical and camouflaged" and limited principally to activities that lack all substance, all merely to justify the payment of a sum intended in whole or in large measure to influence the activist and his friends to vote for the candidate, who made the payment, then the payment is tainted by election bribery, and the employer/maker of the payment has committed an offence of bribery in contravention of the Election Law. Even here, there is a wide distance between the one possibility - pure motive and genuine intent - and the other possibility - corrupt intent. Therefore, in critically assessing the organizational activities of candidates, and in examining the essence of the payments made on its behalf to activists, one should strictly examine each situation by applying the principles discussed above to the particular facts and circumstances. [p. 784]

 

27. The opinions of the judges differed over this complex, complicated subject. The majority opinion of the trial court was that there was nothing improper in the payments made by F'SH to various workers prior to and on election day, while the minority held that at least some of the payments were tainted with election fraud and therefore, under such circumstances, the Appellants had committed the offence attributed to them in the charge sheet. The majority in the court of appeals held that a portion of the payments were tainted with bribery, and therefore that the three Appellants had committed the offence attributed to them, whereas the minority judge held that even if some of the payments to activists were tainted with bribery, only Appellant Halfon was responsible therefore.

            Both of the lower courts decided this issue on the basis of three principal factual elements that comprise the episode under consideration, as follows:

            A. The talks that led to the employment of and payment to the workers of a salary in the manner and scope as actually took place. This means the three-way talks in which the three Appellants took part.

            B. The instructions and statements made by each of the three Appellants, on the basis of which, directly and by implication, the State sought to convict each of the Appellants for the offence attributed to them in this episode.

            C. The execution - that is to say, what actually happened prior to, and principally on, election day.

            The State sought to deduce the criminal intent needed to establish guilt from each of the elements mentioned above, and in any event, from their cumulative weight.

            The starting point of each of the two lower courts in examining the facts was, therefore, similar, but the conclusions reached by the judges in the opinions differed in part. We must resolve these differences.

           

28. Regarding the talks, the trial court held that as an interim conclusion, there is no doubt that talks took place between the three accused concerning employing activists on behalf of the list, and that during the talks the question of the connection between the employment and the vote of the activists was also raised (p. 82). The majority held that it is not possible to conclude from this factual finding that there was illicit intent on the part of the appellants:

 

"In this situation, the talks do not contribute any tinge of criminal intent either to the instructions or the execution thereof ..." (p. 110). [p. 785]

 

            The court of appeals adopted the factual finding in connection with the existence of talks (p. 32), but took issue with the trial court over the latter's interpretation of the substance of the conversation, and the inference of criminal intent that was drawn therefrom (p. 33).

            The court of appeals, in contrast to the trial court, decided to take Ben Udis' statement to the police (E./102) at face value, and the implications therefrom, and it had a sufficient basis for so ruling.

            The conclusion of the majority in the court of appeals was that "criminal intent to 'hypocritically' engage numerous activists for the purpose of securing their votes for F'SH, even if they did not really identify with the list, was present in the conversation as it was (and all the more when we add the conclusions that follow from the instructions and the manner in which they were executed). In this context, we recall that under the rule established in Cr. A. 265/70, State of Israel v. Lateen, P.D. 24 (2) p. 677, even if, on the face of the statement, the respondents intended to secure both objective goal and the aforementioned subjective goal, there is still enough to convict ... ."

            As to the instructions and statements: The conclusion of the trial court was that "... the statements dealing with the votes of the activists at election time still do not point to an intent to give a bribe to a voter or on his behalf so that he would vote for the F'SH list ..." (p. 99), and that "the three types of statements mentioned above undoubtedly create a triangle that encompasses an area in the center of which lies the choice of the voter. However, this is not enough - there must also be reliable, material evidence to support the finding that the activist's vote for F'SH was given in exchange for a payment to the activist, or in exchange for the list's consent to employ him as an activist" (p. 100).

            The court of appeals took issue with this conclusion, and held that the "slogan" of the activists' program, as formulated and expressed by Appellant Halfon, was that "you take an activist, you give him cash, and you get a vote" (Tr. 65, p. 66), and that "the instructions and statements solidly support and confirm the existence of a "master plan" and the criminal substance of the talks, which are merely the external expression, pure and simple, of the program devised by the Respondents to garner the votes of all or most of the activists by means of 'disguised employment'."

           

            Regarding the conclusions which must be drawn from the way in which the activists were employed on election day - the majority of the trial court held that, "in sum, the evidence does not support the allegation in the charge sheet that the activist's job was generally not defined, and that, in sum, this evidence is not sufficient to support the conclusion that what was done was a mere ruse, or that Halfon was indifferent to what the activists would do on election day" (p. 105). [p. 786]

            The majority found that the explanation given for the total number of activists, and for the way they were allocated to certain branches, was reasonable, and that there was nothing in it to point to criminal intent. Therefore, it concluded that with respect to this count, "in its situation, the talks did not contribute an element of criminal intent to the instructions and their execution, that the instructions did not contribute an element of criminal intent to their execution, and that their execution did not lead unequivocally to the conclusion that the instructions were characterized by criminal intent" (p. 110).

            The majority opinion of the court of appeals adopted the approach of the minority in the trial court, and concluded that "the true function of the activists was that they and their wives should vote for the F'SH list, from which they received payment, and that this was the principal, if not the sole, consideration that F'SH expected to receive from the activists in exchange for paying each of them 150 Israel Pounds" (p. 48).

           

            Therefore, the majority of the court of appeals concluded that "the actual execution together with the instructions and guide-lines lead us to the unequivocal conclusion that the respondents decided and jointly agreed - in the talks described in Exhibit 102 et seq. -to hire, rather than to employ, paid activists for election day, with the clear intention to get them to cast their vote for a list with which they did not identify, in exchange for the aforementioned payment."

            We should point out that the minority in the court of appeals, Deputy President A. Goldberg (as was his title then), agreed that "employing the activists was merely camouflage for a premeditated plan whereby the payment made to these 'activists,' who would have no work to do on election day, was likely to lead him automatically to cast his vote for his benefactor's list, as well as to get his wife and family to vote likewise" (p. 50). In his opinion, sole responsibility for this lay with Halfon.

           

29. Given the disagreement between the two lower courts, both in their respective approaches and in their conclusions on the subject of employing workers, which was the principal, essential point of dispute between the prosecution and the Appellants, the issue will be examined in depth, and the true intent that guided the Appellants in employing the activists will be examined.

This examination will be carried out in accordance with the appropriate criteria, including common sense and those criteria that have been established in similar contexts by English and American courts. Such an approach is both desirable and instructive, because of the extensive experience acquired in these countries from years of maintaining a complex, sophisticated and free electoral system which we in Israel are inclined to adopt, because of their inherent logic.

            The basic principle accepted in both England and in the United States concerning colourable employment is as follows: [p. 787]

           

"The dispensing of a favour to a voter in the guise of employment during or near election in order to garner his vote in the election constitutes election fraud, and testifies to the corrupt intention of the 'employer'": (15 Halsbury, The Laws of England (London, 4th ed., by Lord Hailsham, 1977); 29 C.J.S. (Brooklyn, 1965) 626; Parker, supra, at 310; 420), and the judgments referred to therein.

 

            In order to examine the employer's good faith and to establish whether we are in fact dealing with only illicit pseudo-employment, we shall examine several of the factors that characterize this process.

            A. Did the candidate expect that the employee would actually supply the required services within the framework of his job description? If, from the beginning, the candidate was indifferent to the question of what, to what extent, and whether the employee carried out his duties, if at all, and therefore showed no effective interest in supervising it, it can be concluded that we are dealing with a case of pseudo-employment and corrupt intent. See, for example: R. v. Stewart (1888) [22].

            B. Were the services, work or actions actually necessary to the candidate, and did the number of activists correspond to the election services required by the candidate?

            It has been held that if it is clear that the services were not required at all, or that the candidate in good faith required only a portion of them, we have pseudo-employment with corrupt intent by the employer (see, for example, the Salisbury Case). Moreover, the employment of an exaggerated number of activists on election day, out of all proportion to the total number of voters at the place in which they are asked to work, indicates pseudo-employment with a corrupt intention by the employer (Oxford City Case (1857) [16]). If it were not so held, we would find ourselves encouraging a situation in which a candidate of means could, by way of example, employ without risk all the voters in a certain locale as election "activists," while in effect supervising and in fact buying their votes. Therefore, even in not so extreme a situation as that presented above for purposes of illustration, the excessive, unsupervised employment of activists bears witness on the face of it to the employer's corrupt intent. Reconciling oneself to conduct such as this and giving it the stamp of approval would disrupt the process of democratic elections (for an examination of this possibility - although the court did not find it under the circumstances of that case - see City of Tecumseh v. City of Shawnee [21]).

            C. Was there a proper relationship between the work and services provided and the consideration paid?

            A negative answer, that is to say, a large sum paid in relation to the actual legitimate consideration required of the employee, suggests that a corrupt intention underlies the employment; see Nottingham Case (1843) [17] and Tamorth Election Case Petition (1869) [18]. [p. 788]

            D. The absence of an acceptable relationship between the number of voters in a certain area and the sizable financial investment made by the candidate in employing election workers, and the expenditure of a large sum to pay election activists whose activities cannot be explained by the number of voters in the area, require explanation, and prima facie point to a desire to buy the activists' votes (Bradford Election Petition (1869) [19]).

 

30. When we examine the probative facts concerning how the F'SH activists were employed prior to, and more to the point on election day, on the basis of these criteria, there is only one possible conclusion - that the hiring of the activists in this fashion was done, at least in part, without regard to any genuine need for election work, but merely to secure the votes of the activists and their relatives for F'SH.

 

            The election day activists did not receive any instructions concerning their duties. The Appellant Halfon confirmed this explicitly in his testimony as follows: "Do I have to tell the activists what to do with activists? Did I have time for this?" (Tr. 66, p. 23). If I had defined specifically to the activists what they had to do - it would have taken three years (Tr. 66, p. 46; see also pages 27, 35 and Tr. 65, pp. 29, 37 and 38).

           

            Not only were advance instructions not given, but there was no supervision of the workers:

           

"I did not know whether the co-ordinators engaged in any supervision, but I do not believe that they did anything in an organized fashion because I did not give any instructions in this regard. Why was any supervision necessary?" (Tr. 65, p. 53).

 

            Halfon said in his first statement to the police (P/105) that the job of the paid activists was to be observers at voting booths. Such a job indeed merits the payment of remuneration; however, in our situation, we refer to the testimony of Mordechai Biegler, the F'SH co-ordinator for Haifa and the Krayot area, who stated that in the absence of supervision, observers were not required to do anything.

            In a subsequent statement (P/107), Halfon enumerated eight additional tasks that he designated for the workers. The minority in the Magistrate's court analyzed in great detail which of these tasks were genuine, which were disingenuous and precisely what they were. I accept her conclusions in principle, and I shall address only some of her comments, as follows:

            A. Transportation - On Halfon's instructions, 131 vehicles with drivers were leased; the drivers, together with the election activists assigned to the various vehicles, were supposed to transport voters - this in accordance with the law. However, the drivers and the activists were not given in advance any prepared list of supporters, even though the election headquarters had a list of thousands of people who, during preparation of a petition against Flatto-Sharon's extradition to France, had expressed their support for, and their willingness to, help him. The result was that drivers and the workers wandered aimlessly throughout the city. Even Halfon himself admitted that the transportation campaign served no purpose (Tr. 68, p. 78). While this fact alone would not have led me to hold this employment was illegal, it nevertheless adds to other facts that arouse suspicion, facts that I will shortly review, and reinforces them. [p. 789]

            B. The Stewards and the Distribution of F'SH Leaflets - The presence of party stewards in the area of the polling booths on election day is forbidden by law. As for the distribution of F'SH tickets, Halfon himself expressed doubt concerning whether it was necessary (Tr. 68, p. 58). In any event, this was a marginal and essentially worthless task that did not require that people be hired, and certainly fails to justify the relatively high remuneration that was paid to these activists.

            C. Wearing a F'SH Tag on the Lapel - Paying 150 Israel Pounds for doing this was excessive and is suspect on its face, especially because not all workers were asked to carry the tag, nor was it prescribed for how long the workers would have to wear the tag and to remain in the vicinity of the polling booths. The suspicion that payment was made for an illicit purpose is strengthened by the fact that Halfon, in his own words, designated more than half of the workers for this task (Tr. 68, p. 16). We further point out that Halfon himself did not treat this task seriously (Tr. 65, p. 43).

            D. Sticking Leaflets on Vehicles  - Here we are talking about hiring workers to stick placards on vehicles that were used by F'SH on election day. The learned judge pointed out that apparently this was a make-work task, because the driver as well as the activist who sat beside him, both of whom were being paid, could have done it without any difficulty.

            Our conclusion that some of these aforementioned tasks lacked all substance and were mere window dressing to garner votes and not to help in the campaign's organization takes on greater force against the backdrop of Halfon's definition of the principal task of the campaign workers as follows:

           

"Don't do anything - go out and vote, and bring your neighbors, bring your family" (Tr. 66, p. 17, and pp. 26, 27 and 40, as well as Tr. 67, p. 60, and Tr. 68, p. 53, 70 etc.).

 

31. From analysis of the tasks that were intended for the activists - which we have reviewed in part - we reach the following conclusions:

 

            a. Some of the activists did no work at all;

            b. There was no supervision or guidance of the activists' activities;

            c. Some of the activities were totally unnecessary;

            d. There was no relationship between the size of the payment that an activist received and the work he in fact did in connection with the elections in exchange therefore.

           

            In this connection, it is worth mentioning that it was proved that the workers were recruited at random without appropriate criteria (see Halfon's testimony in Tr. 69, p. 39). [p.790]

            If this were not enough to show the true nature of the employment and the corrupt purpose of those behind it, we also add the fact that the number of the election-day activists generally (approximately 3,500), and the number of activists in various locales specifically, was out of all reasonable proportion to the needs of the F'SH list which had set for itself the modest goal of garnering a limited number of votes, sufficient to elect a single person to the Knesset. An instructive example of this "over-employment" can be found in connection with the hiring of the activists in Tel Mond.

            In Tel Mond, 59 activists, who received remuneration that varied from 100 to 300 Israeli Pounds each, were employed. Two additional activists were employed at an even higher salary. Most of the activists were residents of a single neighbourhood - known as Wolfson. One activist received remuneration as a driver, even though she does not know how to drive. The activities of nearly sixty of these activists were concentrated in a community that contained 1,995 eligible voters. This activity resulted in 120 (!!) votes for F'SH.

            In the Arab sector in the village of Misar, 15 workers were hired for 251 potential voters. In the village of Sajor, 17 workers operated among 527 eligible voters.

            I shall conclude my remarks on this matter by emphasizing an additional decisive fact that is based on and was confirmed by both Halfon and his principal activists:

            What most of the election-day activists were primarily called upon to provide was simply their vote and those of their relatives (the remarks of Halfon and of Marco Zanti, a F'SH worker from Dimona -"It is enough that the activist bring the family along with the neighbours": Tr. 67, p. 70 and other similar expressions).

            It should be emphasized that the inherent illegality is the purchase of the votes of a portion of the activists and their families. This is the root of the wrong.

            Hence, from the point of view of organization, and with respect to how some of the workers were employed, it has been proven that those responsible acted corruptly, and even if the hiring was "mixed" in the sense that some was genuine and some was disingenuous in accordance with my ruling regarding how the intent of the candidate is determined, the employment here was "disingenuous" and this defect is of substantial, if not decisive significance.

           

THE ASPECT OF PERSUASION - PUBLIC FIGURES

AND COMMUNITY LEADERS (COUNT NO. 3)

 

32. The essence of an election campaign by a candidate or a list vying for public opinion is the intensive, unceasing effort to persuade the public to cast its vote on their behalf. This campaign of persuasion is conducted in the main through publicists and spokesman graced with the skills, ability and experience to reach the heart of the silent voter and to penetrate his consciousness. The message that they choose to deliver to the vote is the ideological platform, the candidate's qualities, what he has done for the society, and similar types of representations which may capture the voter's fancy. [p. 791]

 

            Sometimes the publicist or spokesman identifies ideologically with the candidate and because of this he hopes for the candidate's success and prestige. It is also possible that he may be among the candidates on the list or an activist of the party backing it, in which case he does his task faithfully and with devotion, without concern for personal gain. Nevertheless, publicity is today a profession; experts in public relations are skilled in bringing to bear advanced, sophisticated means for delivering the message that they are called upon to inculcate into the public's mind, skilled experts who are paid for their work, and there is nothing wrong in the fact that candidates or lists of candidates employ such publicists and spokesmen.

            Sometimes publicity is done for the public at large, and sometimes it is directed at discrete, circumscribed groups. In either event, and even if it is done for remuneration, it is legitimate, provided that it is genuine and is done in good faith for the purpose of influencing the voter who lends a willing ear and who is ready to consider and weigh his vote. In this vein, the following words are appropriate:

           

"We refuse to say that it is lawful to employ a man to make a speech to a hundred men, and unlawful to make a speech to one man. We refuse to say that it is lawful to employ one to discuss public questions in a public meeting but it is unlawful to employ one to discuss public questions with those with whom he comes in contact outside of a public meeting. We refuse to say that it is legitimate and proper to pay a man to prepare an argument and to pay to have it circulated, and that it is unlawful to pay that man to go from one voter to another and make the same argument verbally." (City of Tecumseh v. City of Shawnee, 297 P.R. (O.K.L.) p. 286, 295).

 

            However, just as the false, camouflaged employment of activists is improper and is tainted by corruption, so too is such employment of "publicists and spokesmen" improper and tainted by corruption. Dispensing favours to influential persons, when the payment is given not because of their ability as publicists nor because they actually perform such work in good faith, but rather so as to influence them to vote for a candidate themselves, and so that they will persuade those subject to their influence also to do so, is improper, corrupt employment.

            33. In a society, there are individuals, mayors, and persons well-accepted and admired by the public, who exert vast influence over their followers and admirers. It is enough that they call out to their followers to motivate their admirers to heed their cry and act accordingly. [p.792]

            Public figures such as these are sought after and coveted by candidates. Candidates seek to gain their support so that they will influence their followers to vote for them.

           

            There is nothing improper in community or public leaders identifying themselves with a certain candidate and seeking to advance his interests, and if for this purpose they appeal to their followers in order to influence them to vote on behalf of such a candidate. However, allying oneself with such public figures, which is proper so long as it occurs against an ideological background and on the basis of a belief that it is for the best interest of the public at large, either because of the candidate's talents or because of the substance and practical content of the message that the candidate carries with him, becomes improper if it rests on favours given directly to the public figure for his own behalf or for that of his group.

 

            The rabbi of a Hassidic sect may address his flock with the command that they vote for a certain candidate. Such an appeal may well be influenced by the fact that the rabbi is himself convinced either rightly or due to mistake or illusion that the candidate is a God-fearing person, and that his platform promises that he will act for the advancement of religious and religious educational institutions. A candidate who turns to such a rabbi and convinces him, either by virtue of promises to make good on his intentions in the future, or that he will demonstrate his generosity and righteous behaviour in the past, has not thereby acted improperly. On the other hand, if the rabbi's support is obtained in exchange for the promise of a substantial benefit for the rabbi or his followers, such as support for their institutions and the like, then the alliance is tainted by corruption.

            Similarly, there is nothing improper with a widely-admired artist or athlete urging his supporters to support a certain candidate because of his support for cultural or athletic institutions, or because the candidate's ideological platform contains a promise to assist such institutions. However, if the call to the admirers is influenced by the promise of a substantial benefit to that person or his followers in return for their vote, then the alliance is improper, and the influence exercised over the voters is the product of election bribery.

            The F'SH List also turned to community and group leaders in order to gain their influence over their followers and to secure their votes on election day. Count 3 of the charge sheet charged the Appellants with gaining the support of these public leaders improperly and in exchange for favours. The two lower courts, each on its own grounds, rejected this charge and acquitted the Appellants on this count. The prosecution appeals this conclusion and requests a ruling against (p. 792) and the conviction of the Appellants.

           

34. The trial court held that in order to find the Appellants guilty, there must be proof of their responsibility for entering into, or suggesting, the purchase of influence, as distinct from purchasing such electioneering services as organization or publicity. "The influence that we seek is not measured by the number of people that a person can influence (thousands, hundreds, tens or mere individuals), but rather by the degree of influence if it can substantially impel a voter to vote for the F'SH list irrespective of its platform and due solely to recognition of that person's authority" (p. 119 of the decision). The court concluded that none of the ten persons accused of receiving payment in exchange for exercising his influence is the type of person who has such influence and who can impel a voter to vote solely by virtue of their recognition of his authority (p. 120), and that the testimony concerning "the buying of votes" was weak. Therefore, the three Appellants were acquitted. [p. 793]

 

35. The court of appeals also ruled in favor of acquittal, albeit on different grounds. The court adopted the approach proposed by counsel for Flatto-Sharon, Adv. Toussia-Cohen, whereby "the only thing that is forbidden is payment in exchange for influence that negates or limits the unfettered discretion of the voter, and causes him to heed the call of the influential person for the simple reason that he has decreed him to do so. A person subject to such influence subjugates his judgment to that of the influential person, be it an employer who influences his employees, or a rabbi who influences his followers. The buying of influence in this way is election bribery" (p. 15 of the decision of the trial court).

            The court of appeals took issue with the ruling of the trial court, which had held that in practice the issue here was not one of influential persons where, it held, as with a list such as F'SH, there was no need for, nor practically speaking, were there any high-level leaders of influence; it was sufficient that there were low-level leaders of influence. Such were in fact the type of "leaders" who were recruited, and this is enough to prove the potential influence of such persons. (p. 18).

            The court of appeals ruled in favour of acquittal notwithstanding this finding of fact. On the basis of its interpretation of and the conclusions that it reached on the basis of the Lateen rule, Cr. A. 265/70 [8], which holds that dispensing a favour for an activity that is at once both proper and improper constitutes bribery, it was of the view that it is possible to apply this rule in the case of direct election bribery, such as paying an election day activist in exchange for both his work and for his vote, but that "it is difficult, if not impossible, to apply it to a payment given to a publicist who is also an influential person, wherein one cannot separate the publicist from his personage, the two always being intermingled, combined, and interwoven" (p. 17).

            This legal view joined the finding of fact that the heads of the communities and the public leaders received a fixed, equal salary irrespective of the number of votes that were expected from them, and that in fact they worked within their family circles, conducted rallies, and recruited workers. Hence, in this situation, where there was payment in exchange for a mixture of actual election work and the exercise of personal persuasion, and in light of the ruling that the Lateen rule, Cr. A. 265/70 [8], is inapplicable, we do not find that an illicit payment was made in this situation; we therefore acquit the Appellants. [p. 794]

           

36. The law in England is that a payment given to an influential person in order to secure his influence, as distinguished from his activity, is election bribery:

 

"The employment of an influential person to exercise his influence on voters is bribery" (Parker supra, at 309; see also, Coventry Election Petition [12], at 411-412; Bradford Election Petition (1869) [19]).

 

The rule is similar in the United States:

 

"Are we to say an election is free when [sic] the leaders are hired for their exertion and expression which motivate the electorate? or, indeed are these leaders themselves free when hired and paid to influence others. We think not... To influence leaders by the use of money to work for Shawnee is within the constitutional inhibition and just as much to be condemned as the outright purchase of such leader's vote." (City of Tecumseh v. City of Shawnee p. 297).

 

            We re-emphasize what we stated at the outset of our discussion on this issue (p. 39):

            The bribery is illegal because it derives from the buying of the influence of the influential person, but not because of the fact that he performed legitimate election activities within a homogeneous, limited circle of people.

           

37. The defence is correct when it argues that the court of appeals erred when it overruled the factual finding of the trial court that the community heads who received payment were not influential.

 

            The court of appeals concluded that the community and public leaders were indeed influential persons on four grounds:

           

1. For a list such as F'SH, it was enough that the leaders were of a low level of leadership and influence; therefore, it was improper to hold that on the basis of the impression derived from the weak personalities of the community activists and public leaders who received payment that they were not influential persons for the purpose of committing the offence of election bribery.

 

2. Halfon recruited these persons because he believed that they were influential persons.

 

3. Some of the public leaders, such as witnesses Calo and Daniel Oksh, testified that they were able to ensure votes for F'SH.

 

4. In the locales in which these public leaders operated, their influence could be seen in the high percentage of voters who voted for F'SH relative to the percentage of voters who voted for F'SH in other places in Israel. [p. 795]

 

            These grounds do not justify overruling the factual finding of the trial court.

            It is well-known that a court of appeals will not usually interfere with the findings of the court that took the testimony and that formed an impression based on the witnesses' testimony, demeanour, and credibility. There are exceptions to this rule (see Cr. A. 196/82 [10], p. 233), but the present situation does not merit applying them here.

            The trial court, in examining the question of the influence of community leaders, was guided by the rule that prohibited influence is not measured by the number of people subject to the influence, but by the level of such influence (p. 119). The significance of this rule is that the trial court, no less than the court of appeals, was conscious of the fact that leaders of lesser stature and influence can also exercise forbidden influence.

           

            As for the testimony of Halfon as well as that of the community leaders themselves with regard to the extent of their influence, it seems to be insufficient to support a finding that the public leaders were influential persons; in any event, the trial court's analysis of this testimony was exhaustive and thorough (p. 119-121), and adding thereto or detracting therefrom would be inappropriate.

            The relatively high percentage of voters in places where the public leaders operated does not necessarily mean that the public leaders were influential persons. To no less a degree, one could also explain this high percentage by the fact that many activists were employed in these areas on election day, on the success of the housing plan, and the quite distinct factor of the success of the other legitimate campaign publicity by the F'SH list.

            In light of this, I am of the opinion that this issue should be examined according to the findings of the trial court and in accordance with its conclusion that the public and community leaders that received payment from F'SH did not actually wield influence over others.

           

38. Section 123(2) of the Election Law speaks of bribery given for the influence the taker of the bribe has over the action of another person. Does the fact as proven that the taker of the bribe is not an influential person per se preclude conviction for the crime of election bribery under section 122(1)?

            The answer to this question depends on the answer to the question of culpability for "an unsuccessful attempt." The rule regarding this issue was formulated by President I. Cohen in Cr. A. 365,383/81 [11], p. 135 in connection with a conviction for an attempt to destroy evidence (an offence under sections 32 and 242 of the Penal Law), as follows: [p. 796]

 

"The fact that when Danoch went to the place, it was already impossible to remove the weapon, cannot serve as a defence to a conviction of an attempt to commit the offence because at that time Danoch did not know that the weapon was already in the hands of the Police and that it had been removed from the place, and according to section 33(C) of the Penal Code:

            'The lack of the possibility to actually commit the crime, because of circumstances unknown to the criminal, is of no consequence' (see also the article of Dr. M. Gur-Arye Impossibility to Complete an Offence and its Effects on Punishability of the Attempt"(8 Mishpatim, 5737-38) 310).

           

            This rule is also applicable to our case, and therefore the fact that in effect payment was given to persons who were not influential does not alter the possibility that the Appellants will also be found liable for this act, provided that the payment was given to that person in order for him to exercise personal influence on the voter by virtue of his power, and that they did not know that the recipients of the payment lacked influence.

           

39. As stated, the court of appeals rejected the application of the Lateen rule, Cr.A. 265/70 [8], to our situation, and held that giving payment to an influential person in order to exercise personal influence at election time is not illegal, provided it is also accompanied by legal elections publicity.

I am unable to agree with this holding, which may well lead to a perversion of the freedom of election in a democratic society and to frustrate the ideological foundation of the system of representative election of which we spoke at the outset, viz., fair proportional representation of voter opinion by the elected. Permitting the dispensing of a payment based on a mixed motive such as this is like a hole beckoning a burglar, which will lead to the wide-spread buying of personal influence, sanctioned by genuine but merely token election work performed by the influential persons.

            True, we do not disagree that there is a difficulty in applying the Lateen rule, Cr. A. 265/70 [8], to this situation because one cannot avoid completely the publicist's personality in his attempt to explain and to persuade one why one should vote for a certain list rather than for another. This difficulty can be overcome, however, as explained above, by a logical analysis of the facts, which does not require us to reach the unacceptable result that the "buying" of personal influence is de facto legitimized.

            This difficulty leads us to conclude that regarding influential persons, as in connection with the employing of workers, the Lateen rule Cr. A. 265/70 [8] cannot be avoided; that is to say, if a favour is dispensed for both corrupt as well as for pure motives, the favour in its entirety is a bribe. Nevertheless, as we explained above, the main thing is to examine the true intent of him who dispenses the favour. This can be determined from the motive in fact. [p.797]

            Here, as in the case of the activists, each matter must be examined in accordance with its particular circumstances. What did the offerer seek to obtain by so acting; that is to say, what was the decisive motive in forming his intent? As an indication, and an indication only, in examining motive, one should clarify whether the legitimate campaign activity performed, or whether the intent to benefit the recipient - the influential person - in order to secure his vote and particularly those of his community, was the principle consideration for the payment.

            If it is found that the central motive was the desire to buy personal influence, then the payment is an election bribe. If, however, it is held that the true, central motive was really persuasion, then the payment is proper.

           

40. Upon examination of all of the evidence on this matter, the prima facie conclusion from Halfon's statements is that the decisive motive in forming the payment and in crystallizing the Appellants' intent was to buy the public leaders' influence.

            Thus, for example, journalist Mordechai Gilat testified that Halfon told him that "all that I learned during 34 years with Mapai I now did on Flatto's behalf. I recruited the Alignment's vote contractors for the struggle on behalf of this man, I persuaded three complete communities, who had always been in Mapai's pocket, to switch to our side, and I delivered to Flatto, as I promised him in advance, nearly 50,000 votes" (Tr. 23, p. 35). Halfon confirmed this in the Transcript on p. 44 and in Tr. 86, p. 8).

            It is certainly possible that the Appellants placed great hope on the abilities of a number of activists who seemed to be community leaders, to influence their supporters by dint of their personality.

            However, the probative facts show that the lion's share of the 10 community heads and leaders had been employed since March 1977 at a uniform monthly salary of 5,000 Israel Pounds, plus 1,500 Israel Pounds for expenses unconnected to and independent of the number of expected votes. In return for this payment, they performed substantial election work in the election as F'SH activists, organizing family groups, convening rallies and recruiting activists, etc.

            When we review these facts in entirety, and consider the fundamental motives for paying the community heads and leaders, it is not clear that the Appellants' intent in making the payment was to buy the votes of voters subject to the influence of these persons to the extent that they were personalities and enjoyed influence. In this case there is more doubt than certainty with respect to whether the intent was corrupt and whether the motive was illicit, and the Appellants are entitled to the benefit of this doubt.

            Therefore, the acquittal of the Appellants from the charges in Count 3 remains in force.

           

THE DEAL - THE EPISODE OF THE RT LIST IN DIMONA

(COUNT NO. 5) [p. 798]

 

41. It is not unusual for there to be some ideological affinity between two movements operating in the public. Sometimes, groups in a particular society may actually belong to two such movements. Therefore, such movements often assist each other when necessary, such as when they are involved in an election campaign. It is possible, and it has actually occurred, that a political movement, association, or list operating only in the municipal sphere will extend its help to another group to which it has an affinity as described above and which is competing for election to the Israel Knesset, or vice versa. There is nothing illicit in such mutual assistance, so long as it is influenced by ideological or personal motives, such as an identity of views regarding the socio-economic message acceptable to each, or the common esteem that the two movements hold for the persons leading them. However, when such mutual assistance does not bear these characteristics, but rather "depends on something else," that is to say, it rests on financial help or on a deal for securing influence over the voters of one movement on behalf of the other movement - then such an agreement may well be corrupt because it is intended to obtain influence over a group of potential voters in exchange for a monetary benefit.

            What we stated above in regard to buying the influence of community and group leaders is also apt here, inasmuch as a public movement headed by certain individuals who are respected by a certain segment of the public qualify as public leaders in the sense that we described above. While in the alliance described above the influence obtained is bi-directional, with respect to public leaders as we discussed above it is only uni-directional. Therefore, the principles which I set forth in that context are all the more appropriate when there is an alliance between two lists or movements. Such an alliance is the subject of Count 5.

           

42. The so-called Pure List (hereinafter: the RT list) was an independent list that had been organized in Dimona and which sought to vie in the elections for the local authorities. The charge sheet alleges that Flatto-Sharon and Ben Udis promised a six-figure sum to the leaders of this list to assist it in its local election campaign in exchange for their help in electing Flatto-Sharon to the Knesset. Counsel for the State of Israel, Adv. Kirsch, claimed that this agreement amounted to "buying" the votes of the RT list's leaders and their Dimona supporters.

            On this matter, the trial court made the following findings:

            A. The idea of the RT list assisting Flatto-Sharon in exchange for money was presented to Flatto-Sharon and Ben Udis by witness Marco Zanti (who was both a F'SH and an RT activist) while they were on their way to a meeting with the secretariat of the RT list at the home of a member of the secretariat, one Mr. Katz (p. 168). The aforementioned Marco Zanti also presented to the two the draft of a resolution of the RT executive (E./3a) which states as follows:

           

            " Resolutions:

            At the Wednesday, March 9, 1977 meeting of the executive, it was resolved as follows, that the executive will not support any party standing for election to the Knesset. However, since the list of Flatto-Sharon is comprised of only a single person, and because the extradition of a Jew to a hostile country - i. e., France - is a matter of conscience for us, we resolve that after meeting with him - i.e., Flatto-Sharon - to accept his undertaking that he will remain a one-man list, and further, in the event that he is elected to the Knesset - we hope that he enters the Knesset - he will undertake to meet with us to assist our list (RT) for the municipality of Dimona, monetarily or otherwise, in such amount as shall be determined at such meeting with him, while honouring this agreement, in so far as there be such. For our part, we undertake, as an unaffiliated list, to assist him with everything in our power, and we will do our utmost to see to it that he will be elected a member of the Knesset. If it transpires that Mr. Flatto-Sharon fails to honour this agreement, each member of the executive is free to act in accordance with his conscience." [p. 799]

 

            B. The matter of monetary assistance by Flatto-Sharon to the RT List was the main subject of the discussion that took place at the Katz home, because the readiness of the members of the RT executive to aid in Flatto-Sharon's election was stipulated upon it. Flatto-Sharon refused to give a written undertaking in connection with the monetary assistance requested from him.

            C. Ben Udis and the Treasurer of the RT List, Eliezer Bor, held a private discussion at the Katz home on the issue of the assistance. In answer to Bor's question about how much financing Flatto-Sharon would give the RT List, Ben Udis replied: "Count on an amount in the six-figure range." Ben Udis' version was that he answered that "I assume that an election campaign for a municipality like Dimona will cost a six figure amount." There is nothing significant in the difference between these two versions, because even if Ben Udis only intended to put off Bor with an indefinite answer such as "six figures," there is no doubt that Ben Udis intended that Bor understand these words as a promise to assist RT by covering its election expenses with a six-figure amount.

            There is no doubt that Bor actually did understand these words in this way because also according to Ben Udis himself, Bor was satisfied with Ben Udis' response, and immediately returned to the room in which those present were sitting in order to inform them of the response, without Ben Udis making any attempt to correct the impression that his comments had made.

            D. Flatto-Sharon chose not to respond in order to correct the impression of the members of the RT executive with respect to Ben Udis' response and Eliezer Bor's announcement. Thus, de facto and ex silentio, while aware of the subject-matter of the discussion and its significance, he confirmed what Ben Udis had promised in his name.

            E. It follows from this that even before Ben Udis and Flatto-Sharon left the Katz home, it was clear to those present that agreement had been reached between Flatto-Sharon and the people on the RT list, "that in exchange for the assistance of members of the RT list in Dimona to the F'SH election campaign to the Knesset, Flatto-Sharon would give a six-figure sum to finance the election of the RT list to the local authority" (p. 173).

            F. We reject Flatto-Sharon's version that the F'SH List and the RT list had merged.

            G. The members of the RT executive were employed as co-ordinators of Flatto-Sharon's Knesset election campaign, most of whom received compensation for their work.

            H. In point of fact, Flatto-Sharon did not give the RT list the promised monetary assistance.

            I. Members of the RT list enjoyed influence over various circles in Dimona. [p. 800]

            J. The compensation that the members of the PL executive received as co-ordinators for F'SH's Knesset election campaign was given in return for their organizational activities on behalf of Flatto-Sharon's election. Hence, the six-figure amount promised to the RT list "was not consideration for the organizational activities of its members but to buy the potential hoped-for influence over a large portion of Dimona's voters."

            Given these findings, Flatto-Sharon and Ben Udis were convicted by the trial court for election bribery pursuant to Count 5.

           

43. The court of appeals accepted and adopted the principal factual findings of the trial court, but took issue with its view regarding the strength of the influence of the members of the RT list:

 

"... it was not proven that the influence of the members of the RT executive was greater than that enjoyed by respected individuals in the city, whose words naturally carry greater weight and acceptability than those of an ordinary citizen. All that we have here is buying of the work and activity of an existing organization for the purpose of election publicity on behalf of F'SH. The fact that the staff of the organization are not good-for-nothings in their city does not make the deal corrupt."

 

            The court of appeals did not accept the trial court's position that the co-ordinators were paid a salary in consideration for their organizational work and that the six-figure sum was promised as consideration for "buying" influence; it held that:

           

"It is true that most were paid a salary and their expenses for being co-ordinators in addition to the promise, but the essence of the work was done in expectation of that promise (which was not kept)".

 

            Just as the court of appeals acquitted the Appellants on the influential persons issue, on the ground that in addition to exercising influence, they also engage in organizational activities, so too, a fortiori, the court of appeals acquitted the Appellants on this count, where the influence involved is the influence of public figures and that "their work was beyond doubt organizational" (p. 24).

           

44. I am unable to accept the finding and conclusions of the court of appeals. The court of appeals recognized the influence over the public in Dimona that was enjoyed by members of the RT list, as was found and concluded by the trial court, but in the opinion of the court of appeal judges, the influence of such people did not reach a level that could negate or limit the voter's exercise of discretion. In their view, we are dealing with the influence exercised by respected people

"whose words naturally carry greater weight and acceptability than those of an ordinary person" (p. 79).

            This conclusion is contrary to the clear findings of the trial court and the evidence in its entirety. Even if we accept the view of the trial court that the degree of influence enjoyed by members of RT was limited, that is still not enough to limit Flatto-Sharon's and Ben Udis's liability for the election bribe that was offered here. [p. 801]

           

Generally, the degree of influence actually enjoyed by such people is of no importance; rather, it is the essence of the alliance that is of consequence. If the alliance was meant to exercise influence, whether genuine or not, in order to buy votes, then it is a bribe. Section 123(2) of the Law prohibits giving a bribe for the influence of the taker thereof over the actions of another party. This section does not define, as a condition for applying the prohibition provided therein, that the recipient of the bribe have influence of a certain degree.

            Any limitation on the exercise of discretion granted to the voter in casting his vote constitutes a violation of the principle of free elections in a democratic system, and distorts the true representation of the diversity of voter views in the legislative body. Therefore, "buying" of influence at whatever level by payment is prohibited, and it is not necessary that the influence so bought is that of a person with the power to command his followers to blindly follow his every command.

            As with the episode involving the community and public leaders, so too in the episode involving the RT list, the trial court held that the Lateen rule, Cr. A. 265/ 70[8], does not apply to employing influential persons when both corrupt and legitimate motives are involved, because of the difficulty of distinguishing between the personality of the publicist and his legitimate electioneering work. Therefore, upon concluding that the members of the RT executive engaged in organizational work as co-ordinators for the F'SH list, the court acquitted Flatto-Sharon and Ben Udis, in accordance with its view that under this set of facts, one could not prove the requisite corrupt intention for purposes of conviction.

            As I have said, I do not accept this approach. When payment or an offer of payment to an influential person is at issue, then in any case one should examine in accordance with the particular circumstances whether at the foundation of the alliance there lay a corrupt motive on the part of him who dispensed the favour, or whether the predominant motive was proper. Examining the facts in this manner, one can determine whether the offerer had the psychological foundation required for conviction - a corrupt intent.

           

45. In this situation, the principle motive in offering the assistance of Flatto-Sharon and Ben Udis to the members of the RT list was corrupt, that is to say, the desire to buy the influence of the members of the RT list's directorate over the Dimona voting public. Hence this was the true intention for this alliance, an intention which is corrupt in its essence.

            On the basis of the findings of the trial court, which were also adopted by the court of appeals, it follows as aforesaid that Ben Udis promised (whether explicitly or by seeing to it that his statements would be understood as a promise) members of the RT list, through the list's Treasurer, Eliezer Bor, a six-figure amount to assist in the election campaign that they were conducting for the Dimona local authority. Flatto-Sharon, who was present when Eliezer Bor advised of the extent of the aid to be given, and who on the way to the meeting with the RT list's directorate already knew about the essence of the proposed transaction, confirmed by his silence the impression held by the members of the RT list that, pursuant to the agreement with Ben Udis, he would aid them in a six-figure amount. [p. 802]

            The nature of the help that Flatto-Sharon wished to receive from the RT list can be gleaned from the words of Flatto-Sharon and Ben Udis, who described the RT list as "a powerful electoral force in Dimona." Flatto-Sharon testified that his goal was not to gainer the 12 votes of the members of the RT list directorate, but the 2,000 votes that stood behind them. He assumed that these votes could be obtained through the activity of the members of the RT list on behalf of the F'SH list. Flatto-Sharon added that the members of the RT list "bring their activity, help, and the influence that they enjoy over people." Regarding Yehuda Japhet, who was the head of the RT list, Flatto-Sharon stated that "Marco told me that Japhet enjoys great influence in Dimona." (Emphasis added - D.L.).

            The conclusion that the six-figure sum was offered principally to buy the influence of the members of the RT list's directorate rather than the organizational apparatus of the list is reinforced by the fact that most of the members of the RT directorate were, in any event, employed on the F'SH list pay-roll as election co-ordinators.

            Therefore, we conclude that the members of the RT list received a salary in their personal capacities as co-ordinators in exchange for the organizational work that was performed. Accordingly, the six-figure amount promised to the list per se was not connected to the organizational activities that it performed, and there only remains the certainty that it was promised in order to buy the influence of the members of the RT list directorate over its supporters in Dimona on behalf of the F'SH list.

            This conclusion is supported by the circumstances and facts in their entirety as described at length in the decision of the trial court. I emphasize the fact that we are not dealing here with a merger of lists for ideological motives, but a purely material alliance. That which was said at the decision of the directorate of the RT list on March 9, 1977, that "....if this agreement is not honoured by Mr. Flatto-Sharon, each of the members of the directorate of our list will act in accordance with his conscience," speaks for itself and bears testimony to how the members of the RT directorate understood the essence of the deal. This understanding was supported and reinforced by Flatto-Sharon's promise of a six-figure amount, made through Ben Udis, by the potential influence that the two estimated could be exercised by members of RT, and as aforesaid, by the separate payment that was given in exchange for the organizational work performed.

           

46. In light of the above, I conclude and I suggest that it be found that the trial court correctly convicted Flatto-Sharon and Ben Udis for the commission of the offence of election bribery under section 122(1) of the Law pursuant to Count 5. The acquittal by the court of appeals is reversed, and we reinstate the decision of the trial court concerning this count.

 

CRIMINAL LIABILITY

 

47. The Election Law does not recognize vicarious liability for a criminal act - in our situation, the commission of the offence of election bribery under section 122(1) of the Law - committed by a list's workers. [p. 803]

            Therefore, we will not attribute criminal liability to the members of the leadership or the senior staffers of a list that is vying for election to the Knesset for an act of election bribery committed by one or more of its activists in the field, unless they themselves committed the act, assisted in its commission, or inspired its commission or assented thereto, in which case one should as a matter of law view them as having personally committed the offence or as having contributed either explicitly or indirectly to the commission of the offence.

           

48. In our situation, Flatto-Sharon personally, with Ben Udis beside him, constituted the leadership of the F'SH list. Inasmuch as the organizational component of the election campaign is concerned, Halfon was also part of the leadership. Flatto-Sharon and Ben Udis articulated, decided and took part in executing all facets of the campaign. Halfon, because of his talents and duties, was the central figure, upon whose inspiration and initiative the organizational work in the F'SH election campaign was carried out, with the assent of the other Appellants, particularly the matter of employing workers and engaging them in both genuine and "false" activities.

            Flatto-Sharon was the number one of the F'SH movement, which had been established at his initiative, in order to elect him to the Knesset, and which was financed from his resources. There was one central purpose which guided his every action - his election to the Knesset and escape from extradition to France. Because of his unique personal involvement in the list and its activities and his longing for its success, he took part actively in every decision and in every action, even those to be carried out by others.

            He had no understanding, knowledge or experience in election procedures or in the foundations of the democratic system of government. Without a doubt, he was unable to distinguish between what was permitted and what was prohibited in this area; apparently he had the feeling that here, as in the world of business in which he was well-versed, money would solve everything.

            Ben Udis was also not an authority on how to organize an election campaign properly. Nevertheless, he committed himself to acting on behalf of the F'SH list in order to elect Flatto-Sharon. In addition to serving as Flatto-Sharon's Hebrew translator at meetings and discussions, he also acted as his advisor and confidant. He was the senior staffer in the hierarchy and his operational right-hand man. He contributed intellectually to discussions that were held, and contrary to counsel for the defendants, his role was not limited merely to translating. He initiated matters and also gave advice, and he instructed workers what to do and how to do it. He took part in making decisions and saw to their execution. Halfon, in his own way, conducted himself forthrightly and with propriety, in accordance with the outlook and the norms of conduct that he adopted for himself. He spoke openly and did not conceal anything. He maintains that he is a consummate professional of long-standing in organizing election campaigns, and that he had already served the largest political parties and movements which competed in election campaigns in Israel. Because of his ability and skills, he was also able to give advice and to guide those engaged in election campaigns in foreign countries. His problems lie in that he adopted illicit practices tainted by corruption and contrary to the principles of free and democratic elections, practices that perhaps were once customary and accepted, and turned them into a doctrine and into a modus operandi.

            Through such methods, which are illicit in part, he sought to successfully promote the F'SH lists election campaign. [p. 804]

           

49. On the basis of these fundamental principles, in terms of the legal principles and the facts as proved, we will determine which Appellants are criminally liable for the offences committed by the F'SH list according to the above findings with respect to Counts 1, 2 and 5.

            With respect to Count 5, Halfon was not involved in the act at all, and he should not be held liable in this regard. On the basis of the evidence as shown above, Flatto-Sharon and Ben Udis were both involved in offering to finance the RT list's campaign in the local Dimona elections in a six-figure amount, with the hope and intention of thereby buying influence over the votes of citizens who followed the RT list and its leaders, and were subject to their influence. Therefore, the two are liable in equal measure for committing this offence as proved. They were rightly convicted of this offence by the trial court, and that conviction is therefore hereby reinstated.

            Halfon was equally uninvolved in the subject-matter of Count 1- the RSH program.

           

            As far as Flatto-Sharon and Ben Udis are concerned, there is no doubt that they are actually liable.

           

            Ben Udis's involvement in this affair is clear. He testified that he himself articulated the housing program (although he made the argument, rejected by the trial court, that what was involved was a movement rather than a concrete program), and that he also initiated the rally at Physicians' House in Tel Aviv (see Tr. 32, pp. 7, 14; Tr. 29, p. 60; Tr. 29, p. 56). At the conclusion of the rally, Ben Udis instructed witness Rachel Cohen (who was employed by the F'SH branch in Dimona) to enlist young couples with housing problems. Similar instructions were given by Ben Udis to witness Marco Zanti in Dimona, to witness Armond Aloni in Bet Shemesh, and to witness David Yaron in Ashkelon. These witnesses served as co-ordinators for the F'SH list in those settlements.

            Turning to Flatto-Sharon, we note that he adopted the housing program proposed by Ben Udis enthusiastically, and he incorporated the program in the F'SH platform (E. 97); he presented it at each election rally that was held throughout the country, as well as in the written and in broadcast election publicity. Flatto-Sharon also took care to emphasize that what was at issue was the purchase of apartments with his personal resources (see, for example, the wording of the second objective listed in the platform (E. 97), the publicity film clip that was screened on television (A. 36A), and the proclamations made at the RSH rally at Physicians' House (Tr. 47, p. 23, Tr. 49, pp. 19-20). In one instance in Dimona, Flatto-Sharon turned to the audience and said to them that he suggested to those interested in a solution to a housing problem that they go out and register (Decision of the Trial Court, p. 22).

            The result of all of this is that Flatto-Sharon and Ben Udis are directly liable for the offer of a bribe inherent in the housing program and their convictions were proper.

           

50. Concerning Count 2 - the matter of employing the activists - the liability of each of the Appellants will be examined separately. [p. 805]

 

            A. Ya'acov Halfon's Liability

            Ya'acov Halfon conceived the idea of employing workers for payment: "The workers were my idea because it was impossible without paying, even if we were backed by Flatto-Sharon" (see Court of Appeals Decision, p. 30).

            Halfon, relying on his experience in past election campaigns, assumed that the election activists hired, as well as their family and relatives, would also vote for the F'SH list. However, the assumption was not based on the activist identifying with the list for whom he worked, since F'SH activists were not selected from among those who had expressed a readiness to work to prevent Flatto-Sharon's extradition to France, but rather his assumption was based on the fact that the activists were paid. Evidence for this is scattered abundantly throughout the various testimony that was taken, of which I will only mention a portion.

            Thus, for example, Halfon admitted that in the case of the F'SH list no political identification by the activists is involved (Tr. 48, p. 34), and that votes were to be bought with money (Tr. 68, p. 35). To the question why an activist would expend effort on behalf of the F'SH list or some other list, Halfon answered: "Because, as I understand it, when a person works for something - with or without a salary - he wants the matter to succeed and he gives the maximum..." (Tr. 68, p. 55). In our case, Halfon intended to obtain the maximum, i. e., the worker's vote, and in the best of all situations, also the vote of his family, in exchange for payment of the salary.

In another place, Halfon defined his plan in summary fashion as follows: "You take a worker, you give him money, you receive a vote" (Tr. 65, p. 66). Halfon said to Mordechai Biegler, co-ordinator of the F'SH list in Haifa, that: "I said, don't worry, ...there will be activists, there will be votes, don't get yourself worked up" (Tr. 65, p. 53). The general view of Halfon on the subject of the activists was clearly expressed in a letter that he sent to the Government's legal advisor (E. 106), in which he wrote as follows:

 

"In my opinion, a person or a list which has or which has at its disposal an amount of 6 million Israeli Pounds, will be able to recruit 30,000 to 40,000 paid activists on election day, and it is enough that half of them will vote for the list that is paying the 'salary' to enable the list to cross the one-percent threshold and for the top candidate on the list to reach the Knesset."

 

            Even though this was written after the fact, it can instruct us on his outlook as expressed at the time of the events and as arises from how they were expressed subsequently. On the basis of the above, it is clear that Halfon's intention was to employ numerous paid activists on election day in order to obtain their votes. [p. 806]

           

            B. The Liability of Flatto-Sharon and Ben Udis

            Learned counsel for Flatto-Sharon, Adv. Sh. Toussia-Cohen, bases his defence on the issue of the activists principally on the minority opinion in the court of appeals, who held that Ben Udis's statement to the police (E. 102) was insufficient to convict Flatto-Sharon for his involvement (and for that of Ben Udis). According to the learned judge, the statement shows that Halfon gave Flatto-Sharon and Ben Udis the idea that employing activists would likely also result in the votes of the workers themselves as well as those of their family; "however, the evidence in the statement and elsewhere is not conclusive of whether Flatto-Sharon and Ben Udis knew that the hiring of the activists was to be fictitious. Hence, in respect of Flatto-Sharon and Ben Udis, we are not speaking of paying workers on account of a mixed, partially licit but partially illicit action, but rather payment for a solely permissible action from which, it was assumed, they would also profit by way of votes."

           

51. I do not accept this approach. Ben Udis's statement to the police (E. 102) is only one piece of evidence from the evidence as a whole that testifies to Flatto-Sharon's liability for bribery, in the form of the activists program and its implementation. As we made clear above, there is no doubt that Flatto-Sharon knew of and approved the activists program and that he was aware of the program's basic premise regarding how an activist who received payment would vote. In his statement to the police (E. 101), Flatto-Sharon said (p. 2): "I gave my approval to Halfon for the recruitment of election day activists because he was the expert on the subject and he said that he needed them." Ben Udis, in his statement to the police (E. 102), said: "Mr. Flatto-Sharon, Mr. Halfon and myself met at List headquarters at 64 Melchet Street in Tel Aviv. Mr. Halfon explained to Mr. Sharon and myself that hiring these activists was necessary for two reasons: one objective and the other subjective. Inasmuch as we had no representatives on the polling committees nor were there any observers on behalf of the list, we had to ensure through the help of these activists that voting ballots would not disappear from polling stations either accidentally or intentionally.... On the other hand, Mr. Halfon explained to us that it was reasonable to assume that a person who worked on behalf of a list would also vote for that list, and that at the least he would also convince his wife to vote for the list. Mr. Halfon added that he planned to recruit around 5,000 persons from throughout Israel in the hope that if these people and their spouses worked for us, they would also be likely to vote for us, so that we would have been guaranteed 10,000 votes on behalf of F'SH." Later on, in response to the question "What and how did Flatto-Sharon react to Mr. Halfon's suggestion as I told you?," Ben Udis answered: "Mr. Flatto-Sharon approved the plan regarding the activists."

            It should be emphasized that in statement E. 102, the police investigator presented Halfon's plan as the hiring of election activists without any expectation that they would do any work, and that the salary was in exchange for the activist's vote and that of his family for the F'SH list (the investigator's question is found in E. 102, before the portion of the statement quoted above). [p. 807]

           

            As previously said, following the court of appeals, I too adopt E. 102 literally, including that attributed therein by Ben Udis to Flatto-Sharon, and in effect confirmed in testimony, namely, the adoption of the activists program in its corrupt form.

            Flatto-Sharon's knowledge of Halfon's approach and what it meant "A person who works for the list is also likely to vote for it," was also confirmed by Ben Udis in his statement, E. 103 (p. 4), wherein he also confirmed the essence of the statement that he gave the police E. 102, as appears in Ben Udis's book titled "The Flatto Case" (E. 104).

            In his statement (E. 99), Flatto-Sharon admitted that a conversation took place regarding workers in the presence of Ben Udis and Halfon but he denied the details of the conversation as presented in the statement in E. 102. As I have already said, I agree with the decision of the court of appeals to accept as truthful the approach presented in the statement in E. 102.

            That Flatto-Sharon was aware that hiring a large, exaggerated number of activists on election day was "problematic" comes across as well from the testimony of Mordechai Biegler, co-ordinator of the F'SH list in the area of Haifa and the Krayot. Biegler said to Flatto-Sharon and to Halfon that the over-deployment of activists at too many ballot sites would not enable adequate supervision, and that in the absence of such adequate supervision this deployment could "be incorrectly interpreted in the election campaign" (Tr. 12, p. 47). In Biegler's opinion, this misinterpretation would be that the people had not been hired in order to work, "but rather that this payment served as a camouflage for something else that no one wanted to call by name." Here it should be pointed out that this interpretation, namely fictitious employment, was in Biegler's view the correct interpretation, and in that connection, on the same page of the Transcript, a few lines above the material just cited, he said that:

 

            "In fact, the observers were not persons hired in order to work, but since we provided no supervision, then in effect they received payment in exchange for nothing at all, with the result that this payment could be described in another way."

 

There is no doubt that Flatto-Sharon was aware of this simple fact, but he did nothing to reduce the number of activists or to tighten control over them, despite the fact that had responded to Biegler that he would do so.

            We point out that during that conversation, in Flatto-Sharon's presence, Halfon expressed his view about how the election activists would vote (Halfon's testimony in Tr. 65, p. 53; Tr. 66, p. 22, Tr. 68, p. 70).

            Flatto-Sharon was aware of the payment to the activists, both with respect to the amount paid to individual activists and the total expense connected with paying so many activists. Concerning this, Halfon gave testimony to the police on April 8, 1979, as follows (E. 10):

           

"The answer to the question of whether Flatto-Sharon was aware of the method of recruiting workers in exchange for 150 Israel Pounds is yes, because he approved the budget as I presented it to him and as I discussed it with him. This happened towards the end of April when I told him that I needed to recruit about 3,000 activists at a cost of 150 Israel Pounds per day...." [p. 808]

 

            Yisheyahu Libna, who was in charge of the F'SH list election headquarters, also testified that the excessive outlay for payment of the workers was submitted to Flatto-Sharon for approval (Tr. 37, p. 605).

            Flatto-Sharon's involvement was not limited only to approving Halfon's plan, but he took an active part in recruiting activists and instigated the establishment of branches which, in Halfon's opinion, were unnecessary:

           

"Some of them came to us on their own accord. Some Flatto-Sharon recruited on his own. Some I recruited... Everyone that came to the job had his own reason for doing so. Perhaps some came because they received 5,000 Is. Pounds. Perhaps others came because he just had to work for Flatto - it was Flatto who was the big attraction - and he thought that later on he would receive two stores on Dizengoff" (Tr. 67 p. 6.). (Emphasis added- D.L.).

 

In the same Transcript, on page 30, Halfon stated:

 

"After that occasion, Flatto said to me: No problem, establish branches, it was all superfluous. But when my boss tells me to establish branches, I tell him that it costs money, he says that money is no problem...

            Question: Did you establish branches because Flatto-Sharon forced you to do so?

            Answer: "In the second round, yes."

           

            It follows from this that Flatto-Sharon was directly involved in the program of employing activists and was aware of the fiction inherent in its foundation. This emerges from E.102, in which it was established that Flatto-Sharon approved the plan as it was presented by the police investigator, and it also emerges from his conversation with Biegler, from the fact that he himself recruited activists and that he pushed for the establishment of unnecessary branches, from his awareness of the number of activists planned to be hired, from the extent of the outlays in that connection, and from the fact that the work was unsupervised, so that in effect no work was received in exchange for the moneys paid to them.

 

52. Ben Udis's liability also emerges from this evidence. Thus, as stated above, he confirmed in his statement to the police (E. 102) that he was present when Halfon gave his version of the subjective need to The activists, and "the block of votes" that would be ensured as a result. Ben Udis testified that Flatto-Sharon approved the program presented by the policeman who questioned him, that is to say, he approved a corrupt program, and in any event Ben Udis knew about the program of which he testified, which he approved, and in which, together with Flatto-Sharon, he took part. Ben Udis repeated in his book (E. 104) the essence of his account in E. 102, and in his statement in E. 103 he confirmed what was said in his book about the hiring of workers.

 

53. In light of the foregoing, the clear, unequivocal conclusion is that both Flatto-Sharon and Ben Udis, as well as Halfon, are liable for the offence alleged in Count 2, and that their convictions by the trial court were justified. [p. 809]

 

THE SENTENCES

 

54. As indicated above, Flatto-Sharon was sentenced to three years' imprisonment, nine months of which were to be served, on account of his conviction by the trial court for each of the counts (Counts 1 and 5), the two sentences to be served concurrently.

            As indicated above, Ben Udis was sentenced to an 18-month suspended sentence and was fined 4,000 Sheqels on account of his conviction on the aforementioned counts.

            The two appealed their sentences which were then upheld by the court of appeals, notwithstanding the modification by the court of appeals of the counts on which they were convicted. The minority in the court of appeals was of the opinion that the actual sentence to be served by Flatto-Sharon should be reduced to three months.

            Halfon, who was at first convicted by the court of appeals only on Count 2, was sentenced to a six-months suspended sentence.

            Flatto-Sharon and Ben Udis again appealed the severity of their sentences. Halfon limited his appeal to the conviction only. According to the defence, the imprisonment was too harsh a penalty in light of the circumstances.

            Regarding the sentence meted out to Ben Udis, we immediately point out that it is very light, perhaps even too light; however, at this stage, the State does not seek to alter it, even if its appeal on those counts on which the Appellants were acquitted by the court of appeals is accepted, and thus his conviction on Count 5 is reinstated.

           

            Regarding the sentence imposed on Flatto-Sharon, we considered long and hard all arguments made by the defence and by the prosecution, and we conclude that, notwithstanding the fact that the appeal of the State was accepted and that he was convicted on an additional count, justice will be served if the sentence is commuted for the following reasons:

            A. Seven years have passed since that election - the subject of the hearing - and nearly five years since the commencement of legal proceedings. Since then, Flatto-Sharon his already participated in another election, which he lost, and there was no allegation that in that later campaign he also resorted to corruption. It appears that the Appellant failed to a large extent because of his lack of basic understanding of what is permitted and what is prohibited in the course of free, democratic elections.

            B. The primary importance of this trial, the first of its kind in Israel, is that it is intended to establish, to the extent possible, the rules of what is permitted and what is prohibited in an election campaign, which were not sufficiently clear to the public, and to protect against the perversion of democracy by means of acts of corruption and duress intended to unjustly influence the civil election process. [p. 810]

           

            Now, after we have established our view of this multi-faceted matter, it seems that in great measure the deterrence necessary to prevent incidents such as those disclosed here in the future has been accomplished.

            C. Ben Udis was heavily involved in carrying out all the offences that Flatto-Sharon himself carried out, and his part in their planning and execution was substantial. Flatto-Sharon committed the offence involved in the illicit hiring of activists largely under the influence and instigation of Halfon.

            It is true that Flatto-Sharon was the leader; the corrupting money came from him. The one who had the primary interest in influencing the way citizens voted, come what may, was he, the one-man list, who sought to be elected to the Knesset at whatever price. Therefore, it is fitting that his punishment be heavier and more substantial than that meted out to his cronies - the other Appellants. Still, there must be a reasonable relationship between the various punishments, something that is not the case here. Flatto-Sharon's punishment is immeasurably greater than those of the others.

            Therefore, it seems to me that it is proper that the view of the minority of the court of appeals, Judge Goldberg, be accepted, and that Flatto-Sharon be sentenced to 18 months, three of which are to be served, and the rest to be suspended in accordance with the conditions prescribed by the trial court.

           

SUMMATION

 

55. Therefore, I propose as follows:

            A. To reject the appeal of the Appellants regarding Counts 1 and 2.

            B. To reject the State's appeal on Count 3.

            C. To allow the State's appeal on Count 5 and to reinstate the convictions of Appellants Flatto-Sharon and Ben Udis on this count.

            D. To reject Ben Udis's appeal from his sentence.

            E. To allow Flatto-Sharon's appeal from his sentence and to sentence him to 18 months, three of which are to be served, and the rest to be a suspended sentence on the terms set down by the trial court.

           

Bejski J: I concur.

Netanyahu J: I concur.

Decided as aforesaid according to the judgment of D. Levin J.

 

Given the 25 of Sivan, 5744 (June 27, 1984).

Full opinion: 
PDF icon Flatto-Sharon v. State of Israel.pdf

Emunah v. Prime Minister

Case/docket number: 
HCJ 5853/07
Date Decided: 
Thursday, December 6, 2007
Decision Type: 
Original
Topics: 
Administrative Law
Discretion
Judicial review
Constitutional Law
Basic Law: The Government
Criminal Law
Conviction
Abstract: 

Facts: MK Ramon was convicted of committing an indecent act. According to statute, a person is barred from being a member of the Knesset or a cabinet minister only if he has been convicted of an offence involving moral turpitude and is given a custodial sentence. The court that sentenced MK Ramon did not give him a custodial sentence and it held that the offence did not involve moral turpitude.

 

Shortly after serving the sentence of community service, MK Ramon was appointed a member of the government with the position of Deputy Prime Minister. The appointment was approved by the Knesset. The petitioners challenged the appointment on the ground that, in view of the conviction, the appointment was unreasonable in the extreme.

 

Held: (Majority opinion — Justice Procaccia) There is no legal basis for cancelling the appointment on the ground of extreme unreasonableness. Since the court that sentenced MK Ramon held that the offence did not warrant a custodial sentence and did not involve moral turpitude, the government considered the question of MK Ramon’s conviction before making the appointment and the Knesset approved the appointment, the decision to appoint MK Ramon falls within the margin of reasonableness and judicial intervention is not warranted.

 

(Majority opinion — Justice Grunis) The ground of unreasonableness in judicial review is highly problematic, especially with regard to a decision of a collective body where it is difficult to know the reasons for the decision. It would appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is actually replacing the discretion of the authority with its own discretion. Consequently, the use of relatively narrower and more concrete grounds, such as irrelevant reasons, irrelevant purposes or discrimination, should be preferred to the use of the ground of unreasonableness. In the specific circumstances, the court is no better placed than any citizen of the state to determine whether the decision is unreasonable. Therefore the court should refrain from intervening in the decision.

 

(Minority opinion — Justice Arbel) The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the government and its members. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. The appointment should therefore be set aside as unreasonable in the extreme.

Voting Justices: 
Procaccia, Ayala
Primary Author
majority opinion
Grunis, Asher
Author
concurrence
Arbel, Edna
Author
dissent
Full text of the opinion: 

HCJ 5853/07

Emunah — National Religious Women’s Organization

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Knesset

4.   Haim Ramon

HCJ 5891/07

1.   Tmura — the Legal Struggle against Discrimination Centre

2.   Ahoti for Women in Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Haim Ramon

HCJ 5914/07

Legal Forum for the Land of Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Attorney General

4.   Knesset

5.   Haim Ramon

 

The Supreme Court sitting as the High Court of Justice

[6 December 2007]

Before Justices A. Procaccia, A. Grunis, E. Arbel

 

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: MK Ramon was convicted of committing an indecent act. According to statute, a person is barred from being a member of the Knesset or a cabinet minister only if he has been convicted of an offence involving moral turpitude and is given a custodial sentence. The court that sentenced MK Ramon did not give him a custodial sentence and it held that the offence did not involve moral turpitude.

Shortly after serving the sentence of community service, MK Ramon was appointed a member of the government with the position of Deputy Prime Minister. The appointment was approved by the Knesset. The petitioners challenged the appointment on the ground that, in view of the conviction, the appointment was unreasonable in the extreme.

 

Held: (Majority opinion — Justice Procaccia) There is no legal basis for cancelling the appointment on the ground of extreme unreasonableness. Since the court that sentenced MK Ramon held that the offence did not warrant a custodial sentence and did not involve moral turpitude, the government considered the question of MK Ramon’s conviction before making the appointment and the Knesset approved the appointment, the decision to appoint MK Ramon falls within the margin of reasonableness and judicial intervention is not warranted.

(Majority opinion — Justice Grunis) The ground of unreasonableness in judicial review is highly problematic, especially with regard to a decision of a collective body where it is difficult to know the reasons for the decision. It would appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is actually replacing the discretion of the authority with its own discretion. Consequently, the use of relatively narrower and more concrete grounds, such as irrelevant reasons, irrelevant purposes or discrimination, should be preferred to the use of the ground of unreasonableness. In the specific circumstances, the court is no better placed than any citizen of the state to determine whether the decision is unreasonable. Therefore the court should refrain from intervening in the decision.

(Minority opinion — Justice Arbel) The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the government and its members. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. The appointment should therefore be set aside as unreasonable in the extreme.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

 

Legislation cited:

Basic Law: The Government , 5761-2001, ss. 1, 6, 6(c), 13(d), 15, 23(b), 28(a).

Basic Law: the Knesset, ss. 1, 6(a), 42, 42A(a).

Civil Service (Appointments) Law, 5719-1959, s. 46(a)(1).

Criminal Register and Rehabilitation of Offenders Law, 5741-1981.

Municipalities Ordinance, s. 120(8).

Penal Law, 5737-1977, s. 348(c).

State Comptroller Law [Consolidated Version], 5718-1958

Israeli Supreme Court cases cited:

[1]      HCJ 6163/92 Eisenberg v. Minister of Housing [1993] IsrSC 47(2) 229; [1992-4] IsrLR 19.

[2]        HCJ 652/81 Sarid v. Knesset Speaker [1982] IsrSC 36(2) 197; IsrSJ 8 52.

[3]      BAA 11744/04 Ziv v. District Committee of the Bar Association (unreported decision of 8 August 2005).

[4]        CSA 4123/95 Or v. State of Israel [1995] IsrSC 49(5) 184.

[5]        HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [2003] IsrSC 57(4) 849.

[6]      HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [1967] IsrSC 21(1) 561.

[7]      HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [2005] IsrSC 59(6) 97.

[8]      HCJ 5562/07 Schussheim v. Minister of Public Security (unreported decision of 23 July 2007).

[9]      HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258.

[10]    HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [1993] IsrSC 47(5) 441.

[11]    HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311.

[12]    HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46.

[13]       HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

[14]       HCJ 935/89 Ganor v. Attorney General [1990] IsrSC 44(2) 485.

[15]       LFA 5082/05 Attorney General v. A (unreported decision of 26 October 2005).

[16]    CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd (unreported decision of 15 June 2006).

[17]        HCJ 5261/04 Fuchs v. Prime Minister of Israel [2005] IsrSC 59(2) 446; [2004] IsrLR 466.

[18]    HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister (unreported decision of 6 March 2006).

[19]    HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [2002] IsrSC 56(6) 117.

[20]       HCJ 325/85 Miari v. Knesset Speaker [1985] IsrSC 39(3) 122.

[21]    HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800.

[22]       HCJ 306/81 Flatto-Sharon v. Knesset Committee [1981] IsrSC 35(4) 118.

[23]       HCJ 1843/93 Pinchasi v. Knesset [1994] IsrSC 48(4) 492.

[24]       HCJ 1139/06 Arden v. Chairman of the Finance Committee (unreported).

[25]       HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset (unreported).

[26]    HCJ 12002/04 Makhoul v. Knesset (unreported decision of 13 September 2005).

[27]    HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [2005] IsrSC 59(5) 865.

[28]       HCJ 4668/01 Sarid v. Prime Minister [2002] IsrSC 56(2) 265.

[29]       HCJ 1284/99 A v. Chief of General Staff [1999] IsrSC 53(2) 62.

[30]       HCJ 727/88 Awad v. Minister of Religious Affairs [1988] IsrSC 42(4) 487.

[31]       HCJ 194/93 Segev v. Minister of Foreign Affairs [1995] IsrSC 49(5) 57.

[32]       HCJ 1635/90 Jerezhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[33]       HCJ 7074/93 Suissa v. Attorney General [1994] IsrSC 48(2) 748.

[34]       HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[35]       CrimA 121/88 State of Israel v. Darwish [1991] 45(2) 633.

[36]    HCJ 11243/02 Feiglin v. Chairman of Election Committee [2003] IsrSC 57(4) 145.

[37]       HCJ 251/88 Oda v. Head of Jaljulia Local Council [1988] IsrSC 42(4) 837.

[38]       HCJ 103/96 Cohen v. Attorney General [1996] IsrSC 50(4) 309.

[39]       CrimA 115/00 Taiev v. State of Israel [2000] IsrSC 54(3) 289.

[40]    HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [1998] IsrSC 52(4) 547.

[41]    HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [2005] IsrSC 59(3) 145.

[42]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[43]       HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.

[44]       HCJ 1956/91 Shammai v. Knesset Speaker [1991] IsrSC 45(4) 313.

[45]       HCJ 108/70 Manor v. Minister of Finance [1970] IsrSC 24(2) 442.

[46]    HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [1987] IsrSC 41(1) 757.

[47]    HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [1993] IsrSC 47(2) 147.

[48]       HCJ 156/75 Daka v. Minister of Transport [1976] IsrSC 30(2) 94.

[49]    HCJ 5131/03 Litzman v. Knesset Speaker [2005] IsrSC 59(1) 577; [2004] IsrLR 363.

[50]    CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [1959] IsrSC 13 1026; IsrSJ 3 53.

[51]    HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[52]       HCJ 3379/03 Mustaki v. State Attorney’s Office [2004] IsrSC 58(3) 865.

[53]    HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[54]       HCJ 89/64 Greenblatt v. Israel Bar Association [1964] IsrSC 18(3) 402.

[55]    HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [1971] IsrSC 25(1) 325.

[56]    HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 49.

[57]    HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [2004] IsrSC 58(5) 108.

[58]    HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security (unreported decision of 24 October 2006).

 

For the petitioner in HCJ 5853/07 — P. Maoz, M. Hoffman.

For the petitioners in HCJ 5891/07 — Y. Bitton, E. Moreno.

For the petitioner in HCJ 5914/07 — J. Fuchs.

For the prime minister, the government and the Attorney General — D. Briskman.

For the Knesset — N. Elstein.

 

 

JUDGMENT

 

Justice A. Procaccia

We have before us three petitions that seek to prevent the appointment of MK Ramon as a minister in the Israeli government. In the meanwhile, MK Ramon joined the Government and was appointed a minister with the title of Deputy Prime Minister. The reliefs sought in the petitions, in view of the circumstances, are therefore that we declare the appointment of MK Ramon as a cabinet minister unreasonable in the extreme, with the result that he is disqualified from holding office in the Government, and that we order the appointment to be cancelled (the alternative reliefs stated in HCJ 5914/07 and HCJ 5853/07).

Background and proceedings

2.    On 23 August 2006 an indictment was filed in the Tel-Aviv Magistrates Court against MK Ramon for an offence of an indecent act without consent, in contravention of s. 348(c) of the Penal Law, 5737-1977. The indictment alleged that while he was a member of the Knesset and Minister of Justice, on 12 July 2006, in the Prime Minister’s office, MK Ramon kissed and stuck his tongue into the mouth of the complainant, without her consent. The complainant is an IDF officer who was working at that time in the office of the Prime Minister’s military attaché.

On 20 August 2006 MK Ramon gave notice of his resignation from the government, and this resignation came into effect on 22 August 2006. While the criminal proceedings were pending, MK Ramon did not hold office as a minister in the government.

On 31 January 2007 the Tel-Aviv–Jaffa Court convicted MK Ramon of the offence with which he was charged.

3.    At the sentencing stage, MK Ramon asked the court to cancel his conviction, relying on a report of the probation service that was submitted in his case. The report recommended that community service be imposed upon him without a conviction. The position of the defence and the probation service with regard to cancellation of the conviction was based on a classification of the offence as one of the most minor of sex offences, MK Ramon’s lack of prior convictions, his many years of public service and his contribution to public life in Israel. Emphasis was also placed on the significant damage that would result from the conviction of MK Ramon as an elected official, and the serious harm that he and his family would suffer should the conviction be upheld. The prosecution opposed the cancellation of the conviction and emphasized the nature of the offence and the fact that it was committed by a member of the Knesset and a government minister against an army officer serving in the Prime Minister’s office. It also discussed the injury caused to the complainant by the act, and the manner in which the defence had conducted the case, which, it argued, had caused her particular harm. The prosecution also opposed the cancellation of the conviction on the ground that MK Ramon did not express sincere regret during the trial, which is a basic requirement for cancelling a conviction -  but only at the sentencing stage. It particularly emphasized the need to send a message to the public that would deter similar offences. The prosecution asked the court to hold that the offence committed by MK Ramon was one that involved moral turpitude.

4.    After considering the question of cancelling the conviction and examining all of the relevant considerations, the Magistrates Court arrived at the conclusion that the conviction should be upheld. In so doing, it preferred the public interest over the interest of MK Ramon.  It held that cancelling the conviction might obscure the public message required in the circumstances and minimize the criminal aspect of the act, and it therefore denied the defence’s request in this regard.

Notwithstanding, when it considered the actual sentence, the court addressed the question of the moral turpitude involved in the offence, in view of the prosecution’s request during its arguments  that the sentence should determine that the circumstances in which the offence was committed by the defendant involved moral turpitude. The defence opposed this request. The court rejected the prosecution’s request, and it explained its position as follows (para. 16e of the sentence):

‘In the defendant’s case, we have reached the conclusion that the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in a mental state of indifference. The act lasted two to three seconds and ended immediately. Allowing the conviction to stand contrary to the recommendation of the probation service and the finding that the defendant’s acts did not involve moral turpitude constitutes a proper balance between the different interests and a fair expression of the different factors that have arisen in this case, including considerations of proper legal policy.’

The court sentenced MK Ramon to 120 hours of community service, and ordered him to compensate the complainant in a sum of NIS 15,000. It rejected the prosecution’s request that it should give MK Ramon a suspended prison sentence. It said in the sentence, inter alia (paras. 17 to 20):

‘In his final remarks, counsel for the defendant asked the court to show his client justice and mercy; we are receptive to this and will do so in sentencing.

The defendant’s punishment is his conviction.  We are aware of the mitigating circumstances set out above, and they have led us to think that the defendant’s sentence should be minimal, so that the future harm that he will suffer will be in proportion to the nature of the offence and the circumstances in which it was committed.

Here we should point out that in the sentence we have taken into account s. 42A(a) of the Basic Law: The Knesset, and we have adjusted the sentence to its provisions.

We therefore order the defendant to perform 120 hours of community service, in accordance with a programme that will be drawn up by the probation service.

We order the defendant to compensate the complainant in a sum of NIS 15,000.’

5.    The judgment of the Magistrates Court became absolute when no appeal was filed by either of the parties. Even though the Attorney General was of the opinion that the circumstances of the offence of which MK Ramon was convicted do involve moral turpitude, he decided not to file an appeal on this issue, but his position on the question of moral turpitude remains unchanged (letter of the senior assistant to the Attorney General of 14 May 2007 (respondent’s exhibit 3)).

6.    After the sentence was passed, MK Ramon performed the community service that was imposed on him. Following changes in the composition of the Government, and especially as a result of the resignation of the Minister of Finance, the Prime Minister decided to reshuffle the Cabinet. On 4 July 2007 the Government decided unanimously to accept a proposal of the Prime Minister and, within the framework of its authority under s. 15 of the Basic Law: The Government, to appoint MK Ramon as a cabinet minister without portfolio, with the title of Deputy Prime Minister.

7.    On the same day, 4 July 2007, Minister Meir Sheetrit, on behalf of the Government, notified the Knesset that the Government had decided to appoint MK Ramon a member of the cabinet, and he requested the Knesset’s approval of this decision under s. 15 of the Basic Law: The Government. In Minister Sheetrit’s notice to the Knesset, he said, inter alia, the following:

‘I respectfully notify the Knesset that at its meeting today the Government decided as follows: Appointing ministers to the cabinet in accordance with section 15 of the Basic Law: The Government… I would like to say… before I give the notice, that the Prime Minister in his remarks at the cabinet meeting at which these changes to the cabinet were approved, said the following:

“MK Ramon was convicted in court. It should be pointed out that the court, when it considered the sentence, expressly determined the sentence in such a way that would not prevent him from engaging in public activity in the Knesset and the Government, even though the prosecution requested that it rule that his case involved moral turpitude, and also sought a sentence that would prevent him from returning to the Knesset and the Government. I have considered the appointment of Haim Ramon and all the factors relevant to this — on the one hand, the judgment, the sentence and everything related thereto; on the other hand, the contribution that the appointment of Haim Ramon will make to the Government, the Knesset and his (sic) work as Deputy Prime Minister. After I considered the matter, I decided that in the balance between the considerations, those supporting his appointment override those that oppose it, and therefore I made the decision after I studied the court’s decision on the matter.”

On the basis of these remarks of the Minister Sheetrit  the Prime Minister  proposed, and the Government decided, to appoint MK Haim Ramon as an additional member of the cabinet.’

8.    Following Minister Sheetrit’s notice, a debate took place in the plenum of the Knesset with regard to the Knesset’s approval of the Government’s decision to appoint MK Ramon to the cabinet. Ultimately the Government’s decision was approved by a majority of the Knesset, with 46 members of Knesset for, 24 members of Knesset against, and no abstentions. After the Knesset decision, MK Ramon made the declaration of allegiance and his appointment as cabinet minister came into effect.

The foregoing is the factual background underlying the petitions.

The petitioners’ arguments

9.    Two of the petitions were filed by women’s organizations, and one petition was filed by the Legal Forum for the Land of Israel, which is a group of lawyers that is active, inter alia, with regard to issues concerning proper Government in the State of Israel.

The petitioner in HCJ 5853/07, Emunah — the National Religious Women’s Organization, claims that the appointment of MK Ramon as a cabinet member and as Deputy Prime Minister is a step that is unreasonable in the extreme, and deals a mortal blow to the organs of government and the dignity of the cabinet. It says that this appointment attests to improper exercise of discretion by the Prime Minister, the Government and the Knesset, being in contravention of  tests laid down in case law for the appointment of public officials to various public offices. It particularly emphasizes in its arguments the criteria laid down by this Court in HCJ 6163/92 Eisenberg v. Minister of Housing [1] and it claims that Ramon’s appointment as a cabinet minister is inconsistent with the tests laid down in that case with regard to the appointment of a person with a criminal record to public office. It goes on to argue that the rule in Eisenberg v. Minister of Housing [1] was later developed and extended to various situations in which a candidate for public office has been disqualified even when he has not been convicted in a criminal trial but certain circumstances in his past and his conduct indicate that he is unsuited to the position from the viewpoint of his moral standards and integrity. According to the petitioner, MK Ramon’s conviction for a sex offence, even though it was held that it did not involve moral turpitude, is inconsistent with his appointment as a cabinet member in view of the circumstances in which the offence was committed and in view of the short period of time that has passed since he was convicted and served his sentence.

The petitioners in HCJ 5891/07 emphasize what they view as the serious harm to women occasioned by the appointment of MK Ramon as a cabinet minister. They say that the appointment is inconsistent with the need to protect the status, safety, liberty and dignity of women. It conflicts with their right to protection in their lives. According to their approach, appointing a person as a cabinet minister a short time after he has been convicted of a sex offence not only injures the victim of the offence but also all women in Israel, and seriously undermines public confidence in its elected officials. The finding of the Court that the offence does not involve moral turpitude does not exempt the Prime Minister, the Cabinet and the Knesset from exercising reasonable discretion with regard to the appointment. In the circumstances of this case, they are of the opinion that the discretion was exercised in an extremely unreasonable manner, and therefore the decision to make the appointment should be cancelled.

The petitioner in HCJ 5914/07 also claims that the decision to appoint MK Ramon as a cabinet minister is unreasonable in the extreme, and it involves a serious injury to Israeli women in general and victims of sex offences in particular. According to case law, a cabinet member should resign when an indictment is filed against him, and from a normative viewpoint this rule should be used as a basis for determining the proper normative standard for returning to public office after a conviction. It follows that only if the defendant is acquitted in his trial, or at the most if a judgment is given in his case without a conviction, may he return to hold office as a cabinet member. But once  MK Ramon was convicted of an indecent act, even if it was held that no moral turpitude was involved, he should not be allowed to return to the cabinet until the passage of a significant cooling-off from the time of his conviction. The petitioner goes on to argue that an analogy should be drawn in this case from the existing arrangement in the civil service, where a person would not be given a position if he was convicted of an offence of an indecent act, until the prescription period under the Criminal Register and Rehabilitation of Offenders Law, 5741-1981, has passed. It is argued that it is unreasonable that the normative standard for appointing an elected official to the cabinet should be lower than this.

The respondents’ position

10. The state in its reply refers to s. 6 and s. 23(b) of the Basic Law: The Government. It claims that these provisions set out the detailed statutory arrangement concerning a person's eligibility to serve as a cabinet minister even though he has been convicted in a criminal trial, both for the purpose of an appointment to the cabinet (s. 6) and for the purpose of terminating the office of a member of the cabinet (s. 23). The law provides in s. 6 that a person who has been convicted of an offence and sentenced to imprisonment may not be appointed to the cabinet if on the date of the appointment seven years have not passed since the date on which he finished serving his sentence or judgment was given, whichever is the later. These two cumulative conditions of a criminal conviction and a custodial sentence (including a suspended sentence) create a presumption of moral turpitude if the period specified in the law has not yet passed since the sentence was completed or the judgment was given. This presumption can be rebutted by a decision of the chairman of the Central Elections Committee that the offence does not involve moral turpitude. Such a decision is possible only when the court has not determined that the offence involves moral turpitude. Regarding a member of the cabinet who is convicted of a criminal offence, the Basic Law provides in s. 23 that his office will be terminated if he is convicted of a criminal offence which has been determined by the court as involving moral turpitude.

The state claims that the law created formal tests as to whether a person convicted of a criminal offence may hold office as a cabinet minister both for the purpose of appointing someone with a conviction as a cabinet member and for the purpose of whether someone who was convicted while serving as a cabinet member may continue to hold office. These tests were intended to create certainty and stability in applying the proper criteria for holding office as a cabinet member. It follows that since the court held that the office committed by MK Ramon does not involve moral turpitude and it refrained from imposing a custodial sentence, his appointment to the cabinet was consequently sanctioned, and there is no legal impediment to appointing him.

The state agrees that there may be exceptional situations in which a person satisfies the criteria for holding office as a cabinet minister according to the tests in the Basic Law: The Government, and yet there will still be an impediment to appointing him as a cabinet member, but this is not one of those cases. In this case, the balance struck by the court in the criminal proceeding — where, on the one hand, it determined that MK Ramon should be convicted of the offence that he committed but, on the other hand, it went on to hold that the offence did not involve moral turpitude — should be upheld. The law provides that the trial court in a criminal case is the competent forum for determining whether the offence committed by the defendant involves moral turpitude, and the High Court of Justice should not act as a court of appeal regarding the trial court’s decision in this respect, since this would undermine certainty and stability in this matter.

Moreover, the state claims that the discretion of the Prime Minister and the government when appointing cabinet ministers is very broad, and the court should only intervene in such matters on rare occasions. The Knesset’s approval of the Government’s decision to make the appointment adds a dimension of parliamentary involvement in the appointment process, and this reduces the margin for judicial intervention in the appointment process even further.

11. The Knesset’s position is that the petitions should be dismissed in limine, since there was no defect in the appointment process. The plenum of the Knesset held a debate on the matter and approved the appointment in accordance with s. 15 of the Basic Law: The Government . The Knesset acted in this regard by virtue of its constitutional power as the organ that supervises the government’s work. The Knesset’s power to approve the addition of a minister to the cabinet under s. 15 of the Basic Law is a sovereign power, which is exercised in the course of the internal proceedings of the Knesset. This is a political act that allows very little scope for judicial intervention, especially when it concerns the relationship between the Knesset and the government, with its special political complexities. 

The Knesset also argued that it approved the appointment of MK Ramon as a minister after holding a debate on the merits of the appointment and a vote in the plenum of the Knesset. The Knesset was informed of the background and all the factors relevant to the appointment, and it was told of the considerations that the Prime Minister and the Government took into account before deciding  on  the appointment. The Knesset therefore made its decision with a full knowledge of all the background facts and considerations relevant to the appointment. The exercise of judicial review with regard to acts of the Knesset in this context is very narrow and it is limited to very extreme and rare cases in which the fundamental principles of the system are significantly undermined. The petitioners did not indicate any such ground for intervention in the circumstances of this case. Since the fundamental principles of the system have not been significantly undermined, there is no basis for exercising judicial review of the Knesset’s decision to approve the Government’s notice concerning the appointment of MK Ramon as a cabinet minister. In view of all this, the petitions should, in the Knesset’s opinion, be denied.

Decision

The significance of the judgment in the criminal trial and its ramifications on the legitimacy of the appointment

12. MK Ramon was convicted of an offence of an indecent act. The court's sentence in the criminal trial did not include a custodial or a suspended sentence. It also determined that the offence did not involve moral turpitude, and it said in this respect that the sentence took into account s. 42A(a) of the Basic Law: the Knesset and tailored the sentence to its provisions. This section provides that if a member of the Knesset is convicted of a criminal offence and it is determined that it involves moral turpitude, his membership of the Knesset will cease when the judgment becomes final. The significance of this provision is that the court in the criminal trial passed sentence with the express intention of not terminating Ramon’s membership of the Knesset in accordance with that provision of the law. When judgment was given in the criminal trial, MK Ramon was not a member of the cabinet. Therefore the court’s judgment did not expressly address the provisions of s. 6 of the Basic Law: The Government , which concern the conditions that govern whether a candidate  convicted in a criminal trial is competent to be appointed a minister. Notwithstanding, it may be assumed, albeit implicitly, that when the court passed sentence and considered the question of whether the offence involved moral turpitude, it intended to effect an outcome in which, on the one hand, Ramon’s conviction for an offence of an indecent act would stand rather than being cancelled and that he would also serve a sentence, but by which, on the other hand, after serving his sentence, MK Ramon would be able to return to public activity in the Knesset, the Government or any other sphere of public life. In taking this approach the court sought to distinguish the criminal proceeding and its consequences in the criminal sphere from MK Ramon’s activity in public life. It saw fit, in the circumstances of this case, to exhaust the criminal trial, but at the same time it sought not to terminate Ramon’s activity in the public sphere, which it regarded as the proper balance between the aggravating and mitigating factors that coexist in this case. In doing so, the court intended, inter alia, to ensure that Ramon satisfied the statutory conditions for continuing to serve as a member of Knesset that are laid down in s. 42A of the Basic Law: the Knesset. It also implicitly sought to ensure that he satisfied the conditions for being appointed a cabinet minister as laid down in s. 6 of the Basic Law: The Government , even though it did not expressly address this issue, since Ramon’s appointment to the cabinet was not a relevant matter at that time.

The court’s judgment in the criminal trial paved the way for MK Ramon to satisfy the statutory conditions that would allow him to be appointed to the cabinet. The court was mindful of the statutory restrictions in s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  when it couched its sentence in terms that excluded Ramon’s case from the scope of the statutory restrictions that would otherwise have prevented him from continuing to serve as a member of Knesset and from being appointed a cabinet minister.

And so, after he was convicted and served his sentence, MK Ramon was appointed a cabinet minister with the title of Deputy Prime Minister. The appointment was proposed by the Prime Minister, adopted and subsequently approved by the Knesset. The Knesset approved the appointment after holding a debate and a vote, following which MK Ramon took the declaration of allegiance to the state and entered into office.

‘Competence, as distinct from discretion’

13. Compliance with the minimal qualifications provided by law for the purpose of an appointment to public office or the inapplicability of statutory restrictions on such an appointment still leave the authority making the appointment with a duty to exercise discretion with regard to the propriety of the appointment. Compliance with formal qualifications for holding a position does not necessarily mean that a candidate is suited to a public office in various respects, including in terms of his personal and moral level and in terms of his basic decency. The authority making the appointment should exercise its discretion with regard to the appointment in accordance with the established criteria of public law; its considerations should be relevant, fair and made in good faith, and they should fall within the margin of reasonableness.

In our case, according to the proper construction of the judgment in the criminal trial, Ramon satisfies the requirements for being appointed a cabinet minister in the sense that the statutory restrictions upon his continuing to hold office as a Knesset member and his being appointed a minister under s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  do not apply. Thus the ‘minimum requirements’ for the appointment are satisfied. But this does not exempt the authority making the appointment from the duty to exercise its discretion with regard to the suitability of the appointment from the viewpoint of the nature of the office, the character of the candidate, and the circumstances of time and place according to criteria that comply with the rules of public law.

The petitions before us focused on the validity of the discretion exercised by the authority making the appointment from the viewpoint of its reasonableness. It was argued that appointing MK Ramon as a cabinet minister was unreasonable in the extreme in view of the nature and circumstances of the offence of which he was convicted and in view of the short time that has passed since the judgment was given and Ramon finished serving his sentence.

We should therefore address the reasonableness of the appointment, against the background of all the circumstances of the case. In this context it is necessary, inter alia, to define the margin of discretion of the authority making the appointment, which casts light on the margin of reasonableness. This margin in turn influences and casts light on the scope of judicial review that should be exercised with regard to the reasonable of the discretion exercised by the authority making the appointment.

The appointment — the margin of reasonableness and the scope of judicial review

Competence for public office

14. The competence of a candidate for public office is examined in two main respects:

The first respect concerns the ethical quality and moral virtues of the candidate, alongside his professional and practical abilities. The ability of a candidate to take on responsibility for holding public office depends not only on his talents and abilities, but also on his moral character, his integrity and his incorruptibility. When an ethical or moral impropriety is discovered in a person's actions before his appointment or while he is holding public office, a concern may arise as to his suitability for the office from the viewpoint of his integrity and ethical conduct, which may impair his ability to carry out his duties.

The second respect concerns the fact that public confidence in civil servants and elected officials is an essential condition for the proper functioning of the civil service and the organs of government. All branches of public service rely on public confidence not only in the practical abilities of civil servants and elected officials, but also, and especially, on their standards of morality and humanity, their integrity and incorruptibility. Without this confidence, the civil service cannot, in the long term, properly discharge its functions at the required level for any length of time.

When persons who have been morally compromised are appointed to public office or left in office after they have gone astray, the ethical basis on which the organs of state and government in Israel are founded may be undermined. The fundamental ethical principles on which Israeli society and government are based may be seriously compromised. Public confidence in the organs of government, whose rank and standards are supposed to reflect the basic ethical principles on which social life in Israel is based, may be weakened.

The appointment process for public office always requires the appointing body to exercise discretion. It should consider all of the factors that are relevant to the appointment, including the competence of the candidate. This competence is measured not only according to the professional abilities of the candidate but also according to his moral and ethical standards. Examining suitability for  office from a moral viewpoint requires the consideration of a wide spectrum of factors, including the nature of the acts attributed to the candidate, whether they involved any impropriety, how serious they were, and to what extent they affect his moral and ethical standing; whether he was convicted in a criminal trial, whether he is suspected of committing offences, and whether any criminal investigations are pending against him; whether the acts attributed to him have been proved, or whether they are merely suspicions, and what is the strength of such suspicions; what is the period of time that has passed since the acts were committed; did he commit a single act or was the act a continuous one(Eisenberg v. Minister of Housing [1], at p. 262 {64-65}; HCJ 652/81 Sarid v. Knesset Speaker [2], at p. 197 {52}); and, finally, whether the acts involved ‘moral turpitude.’ The concept of ‘moral turpitude’ in the law reflects an ethical-moral assessment which indicates that under the circumstances a particular act was tainted by a grave moral defect (BAA 11744/04 Ziv v. District Committee of the Bar Association [3]; CSA 4123/95 Or v. State of Israel [4], at p. 189; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968), at p. 180).

Conditions of Competence and Statutory Restrictions upon holding office

15. The process of appointing  a person to public office is often subject to conditions of competence and statutory restrictions that may disqualify a candidate from being appointed. When the restrictions disqualify a candidate from being appointed, the authority making the appointment is left with no discretion. There are a host of statutory restrictions that negate the competence of a person convicted of an offence involving moral turpitude from holding office. This is the case with regard to a person’s competence to be appointed a cabinet member (s. 6 of the Basic Law: The Government ), the right to be elected to the Knesset (s. 6(a) of the Basic Law: the Knesset), and being appointed to the civil service or a local authority (s. 46(a)(1) of the Civil Service (Appointments) Law, 5719-1959; s. 120(8) of the Municipalities Ordinance). The criterion of ‘moral turpitude’ that justifies restricting a person’s competence to hold public office is a moral defect that taints his action, thereby impairing his ability to bear the responsibility required for discharging the job both because of the damage to his ethical standing and because of the anticipated harm to public confidence in the office and the person holding it, and even in public system as a whole  (Or v. State of Israel [4], at p. 189; HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [5], at p. 854; HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [6], at p. 564).

The statutory restrictions that negate a candidate’s competence for holding public office close the gates upon his appointment and prevent him from being appointed. It does not follow that where the statutory restrictions do not apply to a candidate, his appointment is necessarily permissible from the viewpoint of the lawfulness of the discretion that the authority should exercise when making the appointment. The authority making the appointment should act reasonably in exercising its discretion with regard to the appointment. Its responsibility in this process comes under scrutiny even when the candidate satisfies the formal qualifications and is not excluded by the statutory restrictions laid down for an appointment to public office. Notwithstanding, it is important to point out that the competence of a candidate according to the criteria laid down in statute may affect the scope of discretion that the authority may exercise in the appointment process.

The balances required when exercising discretion in the appointment process

16. Exercising reasonable discretion in the process of appointing someone to a public office requires the authority making the appointment to contemplate a very wide range of considerations. It should consider whether the candidate is suited to the position from the viewpoint of his professional qualifications, and from the viewpoint of his personal qualities and moral standards; it should evaluate the degree of public confidence that the appointment under consideration will foster; it should consider the wider needs of the administration, and the ability of the candidate to contribute to it and further the public interest in discharging his duties.

When the proposed candidate has a criminal record or his actions are tainted in some other way, the authority should examine the effect that this factor has on his competence for the position. It should take into account the nature of the act attributed to the candidate, its seriousness, the nature of the impropriety that taints it, and its effect on his ability to carry out his duties; it should examine whether the nature of the candidate’s acts indicates an inherent ethical flaw in his conduct, which affects his ability to function properly in the proposed position and has an impact on the ethical image of public service. On the other hand, it is possible that the act was an isolated lapse, which even if it has an aggravating aspect, does not indicate a fundamental flaw in the candidate’s character (HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [7]; HCJ 5562/07 Schussheim v. Minister of Public Security [8]). Against this background, it should consider the effect of the appointment on public confidence in the system of government (Eisenberg v. Minister of Housing [1], at para. 40). It should consider the fact that the candidate has a criminal conviction in its proper context or any other impropriety in his conduct in their proper context, and weigh them against the other considerations that support the appointment, and strike a balance between them. The main criterion when striking this balance lies in the question whether in the circumstances of the case the appointment may cause serious and pervasive harm to the image of the government in Israel and significantly undermine the respect that the citizen has for the organs of government.

17. The unreasonableness of appointing someone who has been convicted of a criminal offence to public office does not necessarily depend upon the offence involving an element of immorality or a finding that it involves moral turpitude (Eisenberg v. Minister of Housing [1], at para. 55). Similarly, the very existence of a criminal conviction is not a prerequisite for disqualification from public office. Indeed, by virtue of the discretion of the authority making an appointment, not only have persons who have been convicted in a criminal trial been disqualified for public office, but so too have persons who have confessed to committing a criminal offence, even though they were not brought to trial (for example, the persons involved in the 300 bus affair, Yosef Ginosar and Ehud Yatom). In other cases, the court has recognized the possibility of disqualifying persons from public office when a decision has been made to bring them to trial, even before their guilt has been proved. This occurred in the case of Minister of the Interior Aryeh Deri and Deputy Minister of Religious Affairs Raphael Pinchasi (HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at p. 422 {284}; HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 467). A similar outlook has been adopted with regard to public figures against whom a criminal investigation was started, even though it was later decided not to bring them to trial. This occurred with regard to the criminal investigations relating to Minister Tzachi Hanegbi that did not lead to the filing of an indictment (HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at p. 851 {353}).

The need to consider the ethical and moral aspects of appointing someone to public office has also been extended to situations in which a decision was made not to open a criminal or disciplinary investigation against a candidate for conduct giving rise to a suspicion of an illegal act (Hass v. Deputy Chief of Staff, General Dan Halutz [7], at para. 10 of the opinion of Justice Levy; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at p. 65). Indeed, one should not rule out the possibility that the improper conduct of a candidate, even if does not amount to a criminal offence, is sufficiently serious that it would be unreasonable in the extreme to appoint him to public office or to allow him to continue to hold public office.

18. Considerations regarding a candidate’s competence for public office from an ethical viewpoint are of great weight. In very serious cases, the ethical stain on a person’s character may make his appointment to the position completely inappropriate, even when from the viewpoint of his professional abilities he is likely to make a contribution towards the issue that lies at the focus of the public system. In such a case, even the needs of the public system will defer to the stain on the person’s character. But in other situations, alongside an examination of the ethical aspect of the candidate’s character, the authority should consider the broader needs of the public administration and the ability of the candidate to contribute to it, and a proper balance should be struck between all of the relevant considerations and factors.  With regard to a cabinet appointment, one should consider, inter alia, the potential contribution of the candidate to the office, the importance of bringing him into the government for the purpose of preserving the coalition and the effective functioning of the government. On a matter relating to parliamentary political life, one cannot rule out a proportionate consideration of factors relating to political circumstances (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at para. 30). The authority should take into account the requirements of the position, the special abilities of the candidate and the benefit that his holding office would engender in furthering the general public interest. The authority making the appointment should weigh up all of the aforesaid factors and strike a proper balance between them, within the margin of reasonable discretion that is given to it. A candidate’s criminal record or any stain on his character should be considered in accordance with their circumstances and seriousness against other relevant general considerations: the professional qualities, when taken together with the proven or alleged impropriety of his actions, should be considered against the nature of the office, its status within the administration, and how uniquely qualified the candidate is for the office. A balance is required between all the various conflicting considerations (HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], at p. 445; HCJ 935/89 Ganor v. Attorney General [14], at p. 513). An appointment is a reasonable decision if it is made as a result of a balance that gives proper weight to the different values that are relevant to the case. Assessing the weight that is given to the different considerations is a normative act that is made in accordance with accepted social values, which in turn cast light on the relative importance that should be attributed to the various conflicting factors (LFA 5082/05 Attorney General v. A [15], at para. 19 of the opinion of President Barak; Eisenberg v. Minister of Housing [1], at pp. 263-264 {65-66}; CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd [16]). Within the margin of reasonable discretion, depending upon how broad it is, there may be different possible balancing points between the conflicting considerations, all of which may pass the test of reasonableness. The broader the margin of administration discretion when making an appointment, the broader the margin of reasonableness, and this extends the range of legitimate possibilities for finding different balancing points between the conflicting values in the appointment process. The margin of discretion in the appointment process is determined by various factors: the identity of the authority making the appointment, statutory provisions and judicial decisions regarding the competence of the candidate for the appointment, parliamentary involvement in the appointment and the other circumstances of the case.

19. The limits of judicial review and the scope of its application when examining the reasonableness of the discretion of the authority making the appointment are affected by the authority’s margin of discretion in this regard. The scope of judicial review of the authority’s decision is inversely proportional to the scope of the margin of discretion given to the authority making the appointment. The broader the margin of the administrative discretion, the narrower the scope for judicial intervention in the administrative act.

 

The authority’s margin of discretion when appointing a minister who has a criminal conviction

20. For the purposes of this case, we should examine the margin of discretion given to an authority when appointing someone with a criminal conviction as a member of the cabinet. This margin of discretion will cast light on the scope of judicial review regarding the appointment. We should examine whether in the circumstances of this case the decision to appoint MK Ramon as a member of the cabinet falls within the margin of reasonableness or whether it falls outside this margin in such a way that we need to intervene and amend it.

The margin of discretion given to the government when appointing a cabinet minister who has been convicted of a criminal offence is influenced by conflicting considerations that pull in opposite directions: on the one hand, such an appointment gives rise to the question of the weight of the criterion of integrity and ethical conduct in the appointment of elected officials to the most senior positions in state institutions. The image of public service and government institutions is closely related to the moral character of its employees and elected representatives. The standing of government institutions and the effectiveness of their functioning depend largely upon maintaining public confidence in them, not merely from the viewpoint of their professional standards but first and foremost from the viewpoint of their ethical standards. Without this confidence, state institutions will find it difficult to operate. The integrity and moral status of civil servants and elected officials affect the degree of confidence that the public has in state institutions. Appointing someone as a cabinet minister after he has been convicted of a criminal offence of an indecent act just a short time before the appointment, directly concerns the question of integrity and moral character in the appointment of elected representatives, and this factor has considerable weight in limiting the margin of discretion of the authority making the appointment.

21. But this consideration does not stand alone. There are additional conflicting considerations that operate in concert to broaden the margin of discretion given to the authority making the appointment and to limit the scope of judicial review regarding the appointment. The conflicting considerations are the following: first, the prime minister and the government have broad powers when forming the government and appointing cabinet ministers, which is a part of the political process that characterizes the structure of democracy; second, the fact that the statutory qualifications for appointing a minister with a criminal conviction are satisfied has certain ramifications upon the margin of administrative discretion given to the authority making the appointment; third, the parliamentary approval given to the government’s decision to make the appointment, which embodies the consent of the state’s elected body to the appointment and the identity of the person chosen for the office, affects the margin of discretion in making the appointment; and fourth, an absolute judicial decision of a national court, which held in the criminal trial that a distinction should be made between the criminal sanction imposed upon the public figure and the effect of the conviction on the defendant’s public activity, so that the former would not preclude the latter, also contributes to a broader margin of discretion when the competent authority makes the appointment. Each of these factors individually, and certainly when taken together, extends the authority’s margin of discretion in making the appointment, and the scope of judicial review is correspondingly limited.

We will now consider these matters in detail.

The scope of discretion in forming a government and appointing ministers

22. As a rule, the scope of the prime minister’s discretion in forming a government and the government’s discretion in appointing new ministers has two aspects: on the one hand, the discretion given to the prime minister in forming his government and in deciding upon its members is broad. So too is the government’s discretion in its decision to appoint a new member of the cabinet. On the other hand, this discretion is subject to judicial review and is not completely immune from it, since —

‘The prime minister is a part of the administrative authority and the principles that apply to the administrative authority and its employees apply also to the prime minister. It follows that, like any public official, his discretion is not absolute. He must act reasonably and proportionately; he must consider only relevant considerations; he must act without partiality and without arbitrariness; he must act in good faith and with equality’ (HCJ 5261/04 Fuchs v. Prime Minister of Israel [17], at pp. 463-464 {483}).

The discretion given to the prime minister and the government with regard to forming a government, appointing and replacing ministers, and adding a new member to the government is broad, because of the special nature of the power of appointment, which is ‘of a unique kind, both because of the position of the prime minister with regard to the formation of the government and because of the political nature of the government. It includes a large number of considerations and encompasses a wide margin of reasonableness’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 58). The prime minister’s special power with regard to the appointment of cabinet ministers and the termination of their office is intended to ensure the government’s ability to function and operate, and it is an integral part of the political process at the heart of the democratic system, which the court rarely subjects to the test of judicial review (HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister [18]; Movement for Quality Government in Israel v. Prime Minister [11]). The margin of reasonableness that characterizes the scope of the prime minister’s discretion when determining the composition of his government and the appointment of cabinet members is very broad, and his criteria include parliamentary, political and party considerations. This broad margin is intended to facilitate the government’s ability to function properly as the executive branch of the state, and to realize the policy goals that it espouses (Fuchs v. Prime Minister of Israel [17], at para. 29 of the opinion of President Barak). This broad discretion is founded on the public interest of ensuring the stability of the government and its ability to achieve its goals. Indeed —

‘When we address the discretion of the prime minister in a decision to appoint a minister, the margin of reasonableness for his decision, in which the court will refrain from intervening, is very broad, both because of the status of the prime minister as an elected representative and the head of the executive branch, and because of the nature of this power’ (Movement for Quality Government in Israel v. Prime Minister [11], per Vice-President Or).

The scope of the discretion of the prime minister and the government when appointing cabinet ministers, no matter how inherently broad it may be, varies according to the nature of the conflicting factors that they should consider during the appointment process. Discretion that is entirely based on professional qualifications for the position or on purely political or public considerations of various kinds cannot be compared to discretion that is exercised as a result of a duty to contend with the ethical-normative considerations that arise from a candidate’s criminal past or from another stain on his character, which affects his social and public standing and is relevant to his competence to hold office. The ethical-normative aspect of administrative discretion may affect its scope in this special context, and result in the discretion being narrower, and judicial review being correspondingly more rigorous.

23. The consideration concerning the ethical background of a candidate for appointment as a cabinet minister should be taken into account by the prime minister when determining the composition of his government, even when the candidate satisfies the statutory qualifications that are required for the appointment. The weight given to this consideration should be determined in accordance with the special circumstances of the case and with a view to the relative weight that should be given to other important considerations that are relevant to the appointment process.The broad discretionary authority given to the prime minister in the realm of appointments compels him to address a broad variety of considerations. The prime minister should examine, inter alia, the importance of appointing the candidate with reference to the field of activity for which he will be responsible and his skills and abilities as can be seen from his record in the past; he should assess the effect of the appointment on the composition of the government and its ability to function. Public, political and other considerations should also be included among the complex set of criteria that are a part of the appointment process. It is the task of the prime minister and the government to assess the relative weight of all the relevant factors in a reasonable manner, and to strike a proper balance when deciding upon the appointment.

It is the task of the authority making the appointment to strike a balance between the conflicting considerations when appointing a person to the cabinet who has been convicted in a criminal trial. Its discretion is broad, but not unlimited. The law will intervene and have its say when the appointment reflects an improper balance between all of the relevant considerations and it involves a real violation of the ethical principles accepted by society. The law will intervene where such an appointment is likely to harm the status of government institutions and public confidence in them in such a serious way that the appointment is unreasonable in the extreme.

Statutory qualifications and restrictions relating to appointments

24. As we explained above, ss. 6 and 23 of the Basic Law: The Government  lay down the statutory qualifications and restrictions that prevent a person who has been convicted in a criminal trial from being appointed as a cabinet member or that require the termination of his office as a cabinet member.

Section 6(c), which is relevant to this case, provides:

‘Qualification of ministers

6. …

(c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

The conditions that disqualify a person from holding office as a cabinet member, as stated in s. 6(c), are ‘minimum requirements’ that, when they apply, disqualify a person for the appointment. Where the restrictions upon the appointment do not exist, it does not mean that we are dealing with a ‘negative arrangement’ regarding the exercise of discretion by the authority making the appointment, whereby any appointment whatsoever will be valid. Even when there is no statutory restriction upon holding office, the authority should exercise discretion in making an appointment and strike a proper balance between the relevant considerations, according to their proper relative weight (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 457). The statutory qualification test for a person convicted in a criminal trial to hold office as a minister is closely linked to the question of the moral turpitude involved in the offence. Where there is moral turpitude, he is disqualified from holding office; this however, does not mean that the absence of moral turpitude necessarily legitimizes the appointment.  The reasonableness of the discretion of the party making the appointment is examined on its merits, according to all the circumstances of the case.

Notwithstanding, the existence of statutory restrictions upon the appointment of a cabinet minister does influence the scope of discretion of the person making the appointment when exercising the power of appointment granted to him. The stipulation of the legislature regarding the conditions that disqualify a candidate who has been convicted of a criminal offence for being appointed a minister has ramifications on the scope of the power of the person making the appointment and the margin of discretion regarding a candidate whose appointment is not ruled out by the minimum requirements. The statutory restrictions reflect the criteria that the legislature regarded as the proper ones for ensuring the minimum ethical standard for someone joining the government. Admittedly, meeting the qualifications that derive from compliance with these restrictions does not amount to an automatic ethical certificate of approval for the appointment, and the authority should examine in depth whether the candidate is suitable for the position, first and foremost from the viewpoint of his ethical qualities (Eisenberg v. Minister of Housing [1], at pp. 256-257). However, the statutory restrictions upon an appointment do cast light on the ethical criteria required by the legislature for the purpose of the appointment, and the effect of this is to increase the margin of discretion of the person making an appointment where the candidate satisfies the statutory minimum requirements for the appointment.

As the court held in Movement for Quality Government in Israel v. Prime Minister [11] (at para. 8 of the opinion of Justice Rivlin):

‘… the criteria for eligibility laid down by the legislature are not irrelevant when examining the discretion of the prime minister. The further we depart from the statutory criteria, the more difficult it will be to find a reason and justification for intervening in the prime minister’s discretion within the scope of his authority. Indeed, if the legislature has determined that the conviction of a minister of an offence involving moral turpitude necessitates his removal from office, the court will not lightly say that even when the minister has been acquitted of the offence, or a decision was made not to bring him to trial at all, the minister should be removed from office.’

The Knesset’s approval of the appointment

25. Under s. 15 of the Basic Law: The Government , the addition of a minister to the cabinet requires giving notice to the Knesset and receiving the Knesset’s approval. This process subjects the decision of the prime minister and the cabinet to add a minister to the cabinet and the identity of the minister who was appointed to a public, political and parliamentary test. The Knesset’s decision is made after a debate, and it is made by virtue of the Knesset’s position as the supervisor of the government’s actions. The Knesset’s approval for the government’s decision to add a minister to the cabinet reflects parliamentary approval of the elected house of representatives for the appointment that was made by the executive branch (Sarid v. Knesset Speaker [2], at para. 5 of the opinion of Justice Barak).

All organs of government are subject to judicial review, and the Knesset is no exception (HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19]). But the status of the Knesset as the legislative branch, as enshrined in the Basic Law and as determined by the structure of our democracy, requires the court to exercise its judicial review of Knesset decisions with caution and restraint. As a rule, the court will refrain from intervening in Knesset decisions, and the basic criterion by which the scope of the court’s intervention is determined depends upon the nature of the decision from the viewpoint of the amount of harm that it inflicts upon the principles of the constitutional system and the basic notions that lie at its heart (per President Shamgar in HCJ 325/85 Miari v. Knesset Speaker [20], at p. 195; Movement for Quality Government in Israel v. Knesset Committee [19]). The scope of judicial review of Knesset decisions is determined, inter alia, in accordance with the nature and characteristics of the specific decision. Intervention in a decision relating to legislation cannot be compared to intervention in a quasi-judicial decision or a decision concerning the Knesset’s scrutiny of the Government’s actions (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]).

26. The Knesset’s approval of the Government decision to appoint someone who was convicted of a criminal offence as a new minister has two aspects. One aspect relates to its nature as an act of scrutiny of the Knesset as the body that supervises the actions of the Government. The other aspect is of a normative-ethical nature, with quasi-judicial overtones; it reflects the ethical outlook of the Knesset as to the competence of someone who has been convicted of a criminal offence to hold office as a minister in the government. The first aspect concerns the relationship between the Knesset and the Government, and it involves ‘a significant political component in which the judicial branch should not interfere, in order to prevent, in so far as possible, the “politicization of the judiciary” ’ (Sarid v. Knesset Speaker [2], at para. 7). The other aspect involves the Knesset in making an ethical and principled decision regarding the competence of a candidate to serve as a cabinet minister from the viewpoint of his ethics and character. This determination has a normative significance that concerns the determination and application of proper ethical and moral criteria to the holding of a very high office in the Government of Israel. This aspect of the Knesset’s decision with its ethical dimension opens the Knesset’s decision to more rigorous judicial review, since where the Knesset’s decision leaves the purely political sphere and addresses a question relating to considerations of public ethics as applicable to the office of elected representatives in government institutions, the scope of judicial intervention may become broader in so far as the ethical dimension is concerned (HCJ 306/81 Flatto-Sharon v. Knesset Committee [22]; Miari v. Knesset Speaker [20], at p. 127; HCJ 1843/93 Pinchasi v. Knesset [23], at p. 496; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10]; HCJ 1139/06 Arden v. Chairman of the Finance Committee [24], at para. 5 of the opinion of President Emeritus Barak; Sarid v. Knesset Speaker [2], at p. 202 {56-57}; HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset [25]; HCJ 12002/04 Makhoul v. Knesset [26]; HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [27], at pp. 899-900).

The limits of judicial review of a decision of the Knesset to bring  a minister into the government, who has been convicted of a criminal offence, are therefore influenced by the dual aspect of such a decision, which features both a manifestly political dimension and an ethical-normative one. The nature of the Knesset’s decision requires, on the one hand, the accepted degree of judicial restraint with regard to Knesset decisions, and, on the other hand, it may require a judicial examination of the ethical determination contained in it. This balance means that when a decision of the Knesset to approve the appointment of a minister to the cabinet amounts to an extreme and unusual departure from proper ethical criteria, it is likely to justify judicial intervention.

A judicial determination in a criminal trial

27. The court in which MK Ramon’s criminal trial took place directly addressed the question of the appropriate consequence of his Ramon’s criminal conviction with respect to the continuation of his path in public and political life. In the balance that the court struck when passing sentence, it held that a distinction should be made between the question of sentencing, in which MK Ramon should be held accountable, and the question of his public activity. According to its express and implied determination, Ramon’s act, despite the wrongdoing and impropriety inherent in it, is not supposed to impair the continuation of his public activity, either as a member of the Knesset or as a cabinet minister. As I have said, the court’s approach in the criminal trial does not mean that the body making the appointment is exempt from exercising independent and rigorous discretion with regard to the propriety of the appointment, even when the court has held that the offence should not be regarded as involving moral turpitude and the candidate should not be prevented from complying with the minimum requirements for the appointment. But it would appear that the court’s position has weight and significance within the context of the balances that the body making the appointment should strike when making a decision concerning the appointment. The position expressed by the court when it left the door open for MK Ramon to continue his public activity affects and influences the margin of discretion of the person making the appointment, and consequently also the scope of judicial review as to the reasonableness of that discretion.

The court in which the criminal trial was held was aware of all of the legal, moral and public aspects of the case that it tried. By virtue of its authority, the Magistrates Court is trained in striking the proper balance between the various considerations and conflicting interests in the complex case being heard before it. A final judgment that a criminal offence committed by a public figure neither warrants a custodial sentence nor involves moral turpitude, and in which the court clearly states its intention not to curtail the defendant’s public activity, has considerable significance and weight in guiding the discretion of the body making the appointment and it affects the limits of judicial review exercised with regard to his decision.

28. Regarding the margin of discretion given to the Prime Minister and the Government when appointing MK Ramon as a cabinet minister and the nature of the Knesset’s approval of this appointment, it is possible to summarize as follows:

In determining the margin of discretion, there are two forces that pull in opposite directions. On the one hand, the identity of the person making the appointment, the criteria determined by the statutory qualifications and restrictions and the existence of a judicial decision that the criminal act did not involve moral turpitude pull in the direction of broadening the power and discretion of the person making the appointment. On the other hand, the substantive-normative nature of the appointment decision and  its connection to the appropriate proper set of values that should be applied when appointing someone to a high public office expose it in this particular aspect to rigorous judicial review within the broad margin of reasonableness granted to the authority making the appointment. An extreme departure from the proper ethical weight that should be given to the normative-ethical considerations relating to the appointment decision, relative to the other considerations relevant to the appointment, will justify judicial intervention.

From general principles to the specific case

29. The reasonableness of the decision to appoint MK Ramon as a member of the cabinet is subject to judicial review. In this regard, the court should examine whether the authority making the appointment considered all the factors relevant to the matter, and whether it gave them their proper relative weight. At the end of the process, does the decision to make the appointment strike a proper balance between the conflicting considerations that lies within the margin of reasonableness, when taking into account the scope of this margin in the special circumstances of the case? 

30. In the case of MK Ramon, the authority making the appointment considered all of the factors relevant to the matter. On the one hand, it considered the importance of his expected contribution to the Government, in view of his abilities, his considerable experience and his knowledge of the matters required by the position. On the other hand, as can be seen from the statement made by Minister Sheetrit to the plenum of the Knesset, it considered his criminal conviction relating to an offence of an indecent act, with its circumstances and implications. It may be assumed that it also took into account the fact that the criminal trial ended only a very short time earlier. In its decision, the Government balanced the weight of the criminal conviction, its character and circumstances, as determined in the criminal trial, against the considerations relating to the importance of bringing MK Ramon into the Government at this time. In this balance, the scales were tipped in favour of approving the appointment, while having consideration for the weight and significance given to the conviction and its circumstances, and the short period of time that passed since the judgment was given.

In the circumstances of the case, it cannot be said that the Government decision to appoint Ramon as a cabinet member suffers from a manifest lack of reasonableness that justifies judicial intervention by setting it aside.

31. The Government’s approach in making the appointment, which was approved by the Knesset, is characterized by the distinction made, in the special circumstances of this case, between the criminal,  penal and moral aspect of the offence committed by Ramon and its consequences on a public level for an active public figure, whose horizons of activity have yet to be exhausted. Alongside this consideration, the authority making the appointment took into account the needs of the governmental system from a functional and political viewpoint. This approach of the  Government  is consistent with the outlook of the court that considered the matter in Ramon’s criminal trial. It does not conflict with the approach of the Attorney General, who, even though he still believes that the offence does involve moral turpitude, did not file an appeal against the judgment in the criminal trial and accepted the decision of the trial court in this regard.

32. Ramon’s act for which he was convicted in the criminal trial has complex legal, public and moral aspects.  His act was particularly serious and opprobrious not merely because of its actual character, but also because of the special context in which it was committed and his high public office (Minister of Justice), the fact that the complainant was an officer in uniform, and the fact that it occurred in the Prime Minister’s office, the headquarters of the executive branch, where the vital issues affecting Israeli society are decided.

Notwithstanding, the appointment process should consider, inter alia, whether the characteristics of the offence necessarily show the perpetrator as having a fundamental moral defect, which because of its nature should disqualify him from public office, or whether the incident was an isolated one, which,   irrespective of its impropriety, does not necessarily indicate incompetence to hold public office.

This examination is bound up with the question whether public confidence in the person holding office and the government may be significantly impaired by the appointment. An improper act always depends upon the circumstances, and it should be assessed and evaluated against a background of the conditions in which it was committed and in view of an overall examination of the qualities of the candidate, his personal and professional record, and the needs of the governmental network in which he is being asked to serve (Schussheim v. Minister of Public Security, para. 20 [8]; Hass v. Deputy Chief of Staff, General Dan Halutz [7]).

Despite the impropriety of the offence committed by MK Ramon, it was regarded both by the court in the criminal trial and by the authority making the appointment as an isolated incident that does not reflect any fundamental moral defect requiring his disqualification from public office. It was regarded as a momentary expression of human weakness, the result of special isolated circumstances, and did not indicate an innate aberration of conduct and character or a misguided set of values, which might indicate a fundamental incompetence to holding public office. On the other hand, the Prime minister and the Government thought that despite the difficulties inherent in the appointment because of the criminal conviction, the systemic needs of the Government justified bringing MK Ramon into the cabinet. His personal and professional contribution was required, in their opinion, to strengthen and promote the Government’s ability to carry out its various tasks.

As can be seen from Minister Sheetrit’s statement to the Knesset, in making the appointment the Prime minister and the Government assessed the special abilities of MK Ramon against the wrongdoing in the improper act of which he was convicted. In the balance that was made between the facts of the criminal conviction and the human weakness that it revealed, as well as the brief period of time that had passed since the sentence was completed, on the one hand, and the abilities and professional skills of the candidate, his expected contribution to public life and the importance of bringing him into the Government for various general reasons, on the other, decisive weight was given to the latter. In the circumstances of the case, the balance that was struck did not involve any defect that indicates extreme unreasonableness in the discretion exercised by the authority making the appointment. In striking the balance, there was definitely consideration of the question of whether the appointment was likely to substantively damage public confidence; in the special circumstances of this case, this question was mainly answered in the negative, since public confidence also recognizes the concepts of rectification and repentence in appropriate cases (Schussheim v. Minister of Public Security [8], at para. 29; Sarid v. Knesset Speaker [2]).

It follows, therefore, that within the margin of reasonableness given to the Government and the Knesset in the circumstances of the case under consideration, there are no ground for judicial intervention in the appointment of MK Ramon as a cabinet member.

Before concluding

33. Before concluding, I have read the remarks written by my colleague Justice Grunis with regard to the place and status of the ground of reasonableness among the grounds for judicial review of decisions of a public authority. I do not see eye to eye with my colleague on the question of the current and ideal scope of the ground of reasonableness in administrative law. It seems to me that we should leave this ground within the limits outlined by case law in recent decades. I do not intend to set out a wide-ranging response to the legal thesis set out in my colleague’s opinion, if only for the reason that it seems to me that addressing this complex issue is not essential for deciding the issue in the specific circumstances of the present case. I will content myself with discussing the very crux of the difference of opinion between us.

According to the approach of administrative law in recent generations, the ground of reasonableness acts as a main and essential instrument of judicial review of the administration, and it stands at the forefront of the protection of the individual and the public against arbitrary government. This ground is used to examine the rationality of government decisions as a normative concept, and the court has laid down criteria that it should consider when examining this. First, did the administrative authority consider all the relevant issues, and no irrelevant ones, or did it perhaps consider irrelevant and extraneous matters? Second, did the authority give each of the relevant considerations its proper relative weight, and did it thereby strike a balance that lies within the margin of reasonableness given to it? This margin of reasonableness may vary from case to case, according to the circumstances and characteristics of the specific case. Without any safeguard that the administrative decision is reasonable and rational, the individual and the public may be seriously harmed. It is insufficient for the administrative decision to be made with authority and in good faith. The decision should be rational and sensible within the margin of discretion given to the competent authority.

Limiting this tool of judicial review that is intended to examine the rationality of the administrative decision, which is what my colleague proposes, may lead to a revolution in the understanding of the principle of the legality of administrative action and limit the legal tools available to the court for examining the action of a public authority within the scope of the judicial protection given to the individual against executive arbitrariness. Restricting the ground of reasonableness may create a vacuum in judicial review that may not be filled by other grounds of review and may seriously curtail the willingness of the court to intervene in cases where the administrative authority in its decision did not consider all and only the relevant considerations, or  considered them but did not give them their proper relative weight, or also considered irrelevant considerations. It is easy to imagine the damage that such a process can be expected to cause to the concept of the legality of administrative action and the purpose of protecting the citizen in his relationship with the government, which lies at the heart of the definition of the grounds of judicial review of administrative action.

Needless to say, the existence of the ground of reasonableness, like the other grounds of judicial review of public authorities, requires great care when applying it in practice. It is true that because this ground is wide-ranging and has a high degree of abstraction, there is a concern that its application in the specific case, if  done without proper restraint and sufficient care, may result in the court encroaching upon areas that lie beyond the scope of the law, where it ought not to tread. The concern that the court will replace the ‘unreasonable’ discretion of the administrative authority with its own ‘reasonable’ discretion and thereby appropriate the authority for itself is no empty concern, and should not be ignored. My colleague addresses this in his characteristically analytical way. At the same time, this concern in itself should not, in my opinion, affect the existence of this important tool of judicial review or the scope of its application. This concern should guide the administrative judge day by day and hour by hour when exercising the tool of judicial review, upon being required to decide in a specific case whether the act of the administrative authority satisfies the test of reasonableness. The judge should examine with care whether all the relevant considerations were considered, and no others; he should consider whether the authority arrived at a proper balance as a result of the relative weight given by it to each relevant consideration. There may be more than one balancing point. It may be placed at any point within the ‘margin of reasonableness’ given to the authority, and the breadth of this margin should be determined according to the case and its circumstances, in view of the specific issue under consideration.

The principle that examining the reasonableness of an administrative decision does not mean that judicial discretion replaces administrative discretion is a basic rule in administrative law, and it constitutes an essential element of the judicial review of administrative authorities. It coexists harmoniously with the other criteria for examining the reasonableness of administrative decisions.

Certain types of issue, according to their content, and the character of certain public authorities, according to their status and the nature of their responsibility in the government, may also affect the scope of the judicial discretion that should be exercised within the context of the judicial review of administrative authorities.

The correct and appropriate application of the aforesaid principles within the context of the ground of reasonableness does not create a real danger that the court will usurp the place of the administrative authority and do its work in a particular case. An unbalanced application of the aforesaid principles may lead to an undesirable result of this kind. Therefore the emphasis should be placed neither on the elimination of this tool of judicial review, nor on restricting its scope of application, as my colleague proposes. The emphasis should be placed on the proper methods of implementing and applying the long-established principles of administrative law — methods of implementation and application based on proper assessments and balances that are intended to ensure the rationality of administrative decisions, for the protection of both the individual and the public.

My response to my colleague — with regard to the crux of the difference of opinion between us — is therefore that we should not undermine an essential tool of judicial oversight of administrative authorities because of an inherent concern that it may be applied wrongly. The tool should be left as it is, with its full scope, and it should be protected. At the same time, care should be taken, day by day and hour by hour, to apply the principles on which it is founded correctly and properly. This will maintain the full protection currently given to the citizen in his relationship with the government, protect the status of the administrative authority against incursions into its sphere of activity, and coexist harmoniously with the whole constitutional system whose principles form the basis of Israeli democracy.

Conclusion

34. This court’s judicial intervention is restricted to examining the legal-normative reasonableness of the administrative action under examination. In this field, "the field of law", no ground was found for intervening in the appointment. This does not necessarily preclude a different approach to the issue under consideration from the extra-legal perspective of morality and public ethics, in which the considerations and the methods of striking a balance between them are not necessarily the same as the balance required by the law. Naturally, the individual and the public as a whole have the right to form their own ethical judgment regarding these matters, according to their own standards and moral principles.

35. I therefore propose that we deny the appeals.

 

Justice E. Arbel

The petitions before us concern ‘… imposing the rule of law on the government,’ inasmuch as   they concern  ‘public confidence in the actions of government authorities in general and of the supreme executive organ of state (the government) in particular’ (in the words of Justice Barak in HCJ 6163/92 Eisenberg v. Minister of Housing [1], at pp. 238, 242 {24, 30}; see also Justice H.H. Cohn, ‘The Qualifications of Public Officials,’ 2 Mishpat uMimshal (Law and Government) 265 (1994), where he discusses these remarks).

1.    The Prime Minister sought to appoint MK Haim Ramon as a minister in his government, in the capacity of Deputy Prime Minister. The petitions in this case were filed with the purpose of torpedoing the appointment. In the interim, MK Ramon was appointed to the post, after the Government, pursuant to s. 15 of the Basic Law: The Government  (hereafter, also: ‘the law’ or ‘the Basic Law’) notified the Knesset of the appointment and the Knesset approved it. The petitions therefore are concerned with cancelling the appointment of MK Ramon as a cabinet member.

I agree with the legal analysis and principles set out by my colleague Justice Proccaccia in her opinion. We all agree to the premise that under the Basic Law the Prime Minister has broad discretion in appointing ministers in his government, and that judicial review of this power of the prime minister should be exercised sparingly, carefully and with great restraint. In addition, I agree that there are several obstacles that stand in our way when we consider whether we should intervene in this decision of the prime minister: the limited scope of intervention in decisions of the prime minister relating to the formation of the government; the fact that, as required by law, the Knesset gave its approval to the Government notice regarding the appointment of MK Ramon as a minister; and the finding of the Magistrates Court that the act did not involve moral turpitude, when read together with s. 6(c) of the Basic Law. Notwithstanding, unlike my colleague, I am of the opinion that these three obstacles are countered by significant considerations that were not properly taken into account at the time the decision was made to appoint MK Ramon as a minister. These mainly concern the significance of the criminal conviction and the findings of the Magistrates Court in his case, the short period of time that has passed since the conviction and the nature and lofty status of the position to which he was appointed.

2.    The discretion given to the prime minister in decisions concerning the formation of the government is very broad and encompasses a wide range of considerations (HCJ 3094/93 Movement for Quality of  Government in Israel v. Government of Israel [9], at pp. 423, 427 {284, 290-291}; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at pp. 58-59; HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at pp. 846-847 {345-348}, and the references cited there). Notwithstanding, these decisions should satisfy the criteria of judicial review, like all administrative decisions: they should satisfy the requirements of reasonableness, fairness, proportionality and good faith, and they should contain no arbitrariness or irrelevant considerations (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 840, 846-847 {336-337, 345-348; Movement for Quality Government in Israel v. Government of Israel [12], at p. 54, although there the question under discussion was the power to remove a minister from office; HCJ 4668/01 Sarid v. Prime Minister [28], at p. 281). The relevant considerations should be taken into account when making decisions. Ignoring a relevant consideration, giving inappropriate weight to a relevant consideration or striking an unreasonable balance between the various considerations may lead to the decision being found to lie outside the limits of the margin of reasonableness, with the result that it is unlawful (HCJ 1284/99 A v. Chief of General Staff [29], at pp. 68-69).

On appointing a person with a criminal conviction to be a cabinet member and public confidence

3.    The decision under review — a decision to appoint a cabinet member — is governed by s. 6 of the Basic Law, which provides in subsection (c):

‘Qualification of ministers

6. …

       (c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.’

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

According to the ‘minimum requirement’ provided in s. 6(c)(1) of the Basic Law, a conviction in itself is insufficient to prevent someone becoming a member of the government. It is also essential that a custodial sentence was handed down and that the period of time stipulated in the section, which is a kind of purification period, has not passed since the candidate finished serving the sentence or the judgment was given. Indeed, case law has held that the existence of a criminal record in itself does not preclude the appointment of a person to public office, nor does it rule out his competence for the position. It has also been held that ‘in the absence of statutory qualifications, case law qualifications should not be laid down…’ (HCJ 727/88 Awad v. Minister of Religious Affairs [30], at p. 491). This is certainly the case where the legislature has provided statutory qualifications, as was done with regard to the appointment of a minister. Notwithstanding, as my colleague also emphasized, the fact that the law has determined statutory qualifications does not mean that it is possible to appoint as a government minister anyone who is not disqualified by the ‘minimum requirement.’ The arrangement in s. 6(c) of the Basic Law does not exhaust the grounds for disqualifying a person from holding office as a cabinet member, and even when the basic disqualification does not apply, the authority making the appointment should decide the question of the appointment after exercising discretion that includes an examination of all the relevant considerations and striking a balance between them (Movement for Quality Government in Israel v. Prime Minister [11], at p. 867 {374 }; HCJ 4267/93 Amitai, Citizens for Efficient Government  v. Prime Minister [10], at pp. 457-458). In other words, a distinction should be made between the question of whether the minimum requirements laid down by the legislature are satisfied and an examination of the discretion that was exercised in the decision to make an appointment.

This is also relevant to our case. The petitions before us do not concern the question of the power of the prime minister to appoint a minister to his government, since this power exists as long as the candidate satisfies the statutory minimum requirements, and there is no dispute that no statutory disqualification exists in the case of MK Ramon, since he was not given a custodial sentence at all. The petitions address the question of the discretion exercised by the Prime Minister as the person who had the authority to decide to appoint MK Ramon to the Government in the capacity of Deputy Prime Minister. We are not dealing with a question of authority but with a question of the reasonableness of discretion.

4.    My colleague discussed the principles laid down by case law with regard to the discretion that should be exercised when considering the appointment of someone who has been convicted in a criminal trial to a senior public office and the weight that should be attached to this consideration, and I shall therefore refrain from discussing this matter fully except where I need to do so in order to state my opinion.

The fact that a person is a competent candidate for holding office as a cabinet member according to the statutory requirements does not rule out the possibility — and in my opinion the duty — to take into account his criminal record, together with other relevant considerations, when exercising discretion in making the decision with regard to the appointment (Eisenberg v. Minister of Housing [1], at pp. 256-257 {54-56}; Amitai, Citizens for Efficient Government v. Prime Minister [10], at p. 459; HCJ 194/93 Segev v. Minister of Foreign Affairs [31], at p. 60; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). A criminal conviction may not disqualify someone from being appointed to public office, but it is always a relevant consideration of paramount importance, since an appointment to public office of a person who has a criminal record has an effect on the functioning of the public authority, and the public’s attitude to it and confidence in it (Eisenberg v. Minister of Housing [1], at pp. 258 {57-58}; Segev v. Minister of Foreign Affairs [31], at p. 61).

This approach is based on the fundamental principle that the public authority is a public trustee (Eisenberg v. Minister of Housing [1], at pp. 256-257 { 54-56}; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). The Government, the Prime Minister and the members of the Cabinet are public trustees. ‘They have nothing of their own, and everything that they have, they hold for the public’ (HCJ 1635/90 Jerezhevski v. Prime Minister [32], at pp. 839. 840; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 461; regarding the duty of trust, see also HCJ 7074/93 Suissa v. Attorney General [33], at pp. 774-776). Trust is the cornerstone of the government’s ability to function. It plays an important role in forming the conceptual and practical outlook regarding the duties that the government owes to its citizens. The duty of trust that the government and each of its members owes to the public is an absolute condition for public confidence in the government, even though it alone is insufficient. Without public confidence in the government and its organs, a democracy cannot survive. A public figure is charged with the duty of trust in all his actions:

‘The duty of trust imposed on the prime minister and the members of the government is closely related to public confidence in the government. This is self-evident: a trustee who conducts himself like a trustee wins confidence, whereas a trustee who does not conduct himself like a trustee does not win confidence. The government needs confidence, not merely the confidence of the Knesset but also the confidence of the entire public. If a government conducts itself like trustees, the public will have confidence in the organs of state. If the government breaches that trust, the public will lose confidence in the organs of state, and in such a case the court will have its say’ (Movement for Quality Government in Israel v. Prime Minister [11], at p. 902 {420).).

The duty of trust is not discharged merely by means of decisions on questions of policy, initiatives, planning and action, but also by preserving a proper and unsullied image of public office and those who hold the highest offices.

5.    As I have said, when making a decision regarding the formation of the government, the prime minister is obliged to consider all of the relevant considerations, including the candidate’s criminal record, to give each of them its proper weight in the circumstances of the case and to strike a balance between them that is consistent with the fundamental principles of our legal system and their relative importance from the viewpoint of the values of society (Segev v. Minister of Foreign Affairs [31], at p. 61; Eisenberg v. Minister of Housing [1], at p. 263; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

A decision to appoint someone who has a criminal record to public office requires a balance between two sets of considerations: the first set of considerations concerns the principle of repentance. As a rule, a criminal conviction should not become a mark of Cain that the convicted person carries eternally on his forehead; he should not be punished for his crime after he has ‘paid his debt to society’ and amended his ways (see the remarks of Justice Dorner in Sarid v. Prime Minister [28], at p. 286). It is in the interest of both the individual and the public to allow even someone who has been convicted to start afresh. The second set of considerations concerns the major public interest in having an untarnished civil service, which enjoys the confidence of the public. The concept of ‘public confidence’ has become a widely-used expression, but it is precisely for this reason that we need to understand that it is not a theoretical concept, or even worse, merely a cliché. ‘Without trust the State authorities cannot function’ (HCJ 428/86 Barzilai v. Government of Israel [34], at p. 622 {104}). Public confidence is essential if the government is to be able to govern in practice. It is the cornerstone of the proper functioning of the civil service and the existence of a healthy society:

‘… without public confidence in public authorities, the authorities will be an empty vessel. Public confidence is the foundation of public authorities, and it enables them to carry out their function. The appointment of someone with a criminal past — especially a serious criminal past like someone who committed an offence involving moral turpitude — harms the essential interests of the civil service. It undermines the proper performance of its function. It undermines the moral and personal authority of the office holder and his ability to convince and lead. It undermines the confidence that the general public has in the organs of government’ (Eisenberg v. Minister of Housing [1], at p. 261 {64}).

Moreover —

‘The way in which the public regards the civil service, the confidence that the public has in the propriety of its actions and the integrity of its employees are prerequisites for the existence of a proper government…’ (CrimA 121/88 State of Israel v. Darwish [35], at p. 692).

The public’s confidence in the government and its members is derived to a large degree from their conduct and the integrity that can be seen in that conduct. For all of the reasons that I have discussed above, public confidence in its leaders should not be taken lightly. Public leaders are the standard-bearers who lead the nation; they are expected to act as an example and a role-model for the whole public. Public confidence cannot exist when someone who has recently been tainted is found in the rank and file of the civil service and government — and especially in senior positions. Moreover, civil servants who serve under members of the government and under the most senior public officials take their example from them; their conduct contributes to and affects the shaping of basic outlooks and accepted modes of conduct in the civil service, as well as the ethos of the whole civil service (Suissa v. Attorney General [33], at p. 781).

The disqualification in s. 6(c) of the Basic Law also reflects the balance between the two sets of considerations that we mentioned — between the principle of repentance, on the one hand, and the interest of preserving the integrity of the civil service and its officials, and public confidence in them, on the other (Sarid v. Prime Minister [28], at p. 287). But, as has been made clear, this balance does not exempt the person in authority from exercising discretion in each case, even when the disqualification does not apply to the candidate.

6.    The weight of the consideration concerning a candidate’s criminal record for holding office in public service vis-à-vis the other relevant considerations is not fixed or static. It varies from case to case according to the circumstances, inter alia in view of the nature of the criminal record and the character of the office under discussion:

‘Someone who committed an offence in his childhood cannot be compared with someone who committed an offence as an adult; someone who committed one offence cannot be compared with someone who committed many offences; someone who committed a minor offence cannot be compared with someone who committed a serious offence; someone who committed an offence in mitigating circumstances cannot be compared with someone who committed an offence in aggravated circumstances; someone who committed an offence and expressed regret cannot be compared with someone who committed an offence and did not express any regret for it; someone who committed a “technical” offence cannot be compared with someone who committed an offence involving moral turpitude; someone who committed an offence many years ago cannot be compared with someone who committed an offence only recently; someone who committed an offence in order to further his own agenda cannot be compared with someone who committed an offence in the service of the State’ (Eisenberg v. Minister of Housing [1], at p. 261 {64-65}).

It has also been said:

‘… the type of office that the civil servant is supposed to hold also affects the weight of the criminal past in the holding of that office. A minor position cannot be compared with a senior position; a position in which one has no contact with the public cannot be compared with one where there is contact with the public; a position not involving the control, supervision, guidance and training of others cannot be compared with one involving authority over others and responsibility for discipline. Someone who holds the office of a follower cannot be compared with someone who holds the office of a leader; an office that in essence does not make special ethical demands on its holder and on others cannot be compared with an office that is entirely devoted to encouraging a high ethical standard’ (Eisenberg v. Minister of Housing [1], at p. 262 {65}; see also Segev v. Minister of Foreign Affairs [31], at p. 61; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

Another consideration that has weight when appointing someone with a criminal record to public office is the degree to which the candidate is uniquely qualified for holding that public office. Thus it is customary to distinguish between a candidate who is one of many and a candidate who is unique and may in certain exceptional circumstances be the only person for the job. A distinction should also be made between an emergency, which requires the recruitment even of someone with a criminal record, and an everyday act of the civil administration that as a rule should be done by upright workers (Eisenberg v. Minister of Housing [1], at p. 262 {65}).

I should re-emphasize that although my opinion focuses on the consideration relating to a candidate’s criminal conviction and the findings of the court in his case — since these were not, in my opinion, given proper weight in this case — this is not the only consideration, and the review of the reasonableness of the decision should assume that the person making the appointment balanced this consideration against other considerations, such as the special abilities of the candidate, how suitable he is for the position, the tasks faced by the organization to which he is being appointed, etc. (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 870-871 {379}.

7.    Summing up this point, according to the principles laid down in Eisenberg v. Minister of Housing [1], usually the appointment of someone who committed a serious criminal offence in the past to a senior position in public service is unreasonable. Notwithstanding, this is not a sweeping rule of disqualification from every possible senior position in the public service. Like every administrative decision, this decision should also be based on a proper balance between the various relevant considerations, which should each be given the proper relative weight in the circumstances of the case (Sarid v. Prime Minister [28], at p. 280). But I should make it clear that in the case before us we are not dealing with a conviction for one of the most serious offences. I shall discuss the significance of this below.

The criminal trial that is the background to this case

8.    Was proper weight given to the criminal trial and the judgment relating to MK Ramon when the decision was made to appoint him a cabinet minister and Deputy Prime Minister? In order to answer this question, let us first consider the details of the conviction under discussion, since the petitioners’ claim is that it is because of these that the appointment is unreasonable.

MK Ramon was brought to trial and convicted of an offence of an indecent act without consent, under s. 348(c) of the Penal Law, 5737-1977 (hereafter: the Penal Law), in that, when he was Minister of Justice, he kissed and stuck his tongue into the mouth of the complainant, an IDF officer, who was working for the military attaché in the Prime Minister’s office. The event took place only a short time before MK Ramon went into a cabinet meeting that discussed the kidnapping of two IDF soldiers in the north and at the end of that meeting a decision was taken to go to war (the Second Lebanese War).

In the criminal trial, MK Ramon admitted that the kiss did indeed take place, but he claimed that the complainant was the one who initiated it and that he only responded to her. The Tel-Aviv – Jaffa Magistrates Court (the honourable Judges Kochan, Beeri and Shirizli) convicted him after it held that it regarded the complainant’s credibility as unimpeachable. The court held that MK Ramon’s version of events was mostly consistent and it discussed the emotion he displayed when he testified in the witness box, when he came close to tears because of the occasion and the circumstances. Notwithstanding, the court found that his version of events did not pass the test of logic and reasonableness, since it ‘… did not have a strong foundation, in some parts it was not supported by other testimonies and in other parts it was even in conflict with the evidence…’ (para. 26 of the verdict).

The findings of the Magistrates Court regarding MK Ramon are not flattering ones. Thus, for example, it was held that ‘in our opinion, the defendant’s testimony under cross-examination was a clear and characteristic example of how he tried to distance himself from anything that might implicate him, at the cost of not telling the truth, while at the same time he had no hesitation in besmirching the complainant’ (para. 26(c) of the verdict). His testimony was defined by ‘a distortion and misrepresentation of the truth,’ and the court also found that MK Ramon ‘… was not precise with regard to the facts, to say the least’ (paras. 28-29 of the verdict). In summary the court held:

‘… After reviewing and examining all the evidence, we found that the complainant’s statements are completely true. By contrast, we found that the defendant did not stick to the truth, tried to divert the blame from himself and direct it elsewhere, minimized his actions and his responsibility, and at the same time exaggerated the complainant’s role, distorted and misrepresented the facts in a sophisticated and insincere manner’ (para. 94 of the verdict).

Hardly a flattering description!

9.    In the sentence, the Magistrates Court considered the application made by MK Ramon’s counsel to cancel his conviction. The court discussed MK Ramon’s public standing, his extensive public activity, the distress and pain he suffered ‘as a result of the loss of the public career that was interrupted,’ as well as the considerable price that he paid because of the incident and the personal and professional damage that he was likely to suffer if the conviction stood. The court took into account the fact that this was an isolated incident, ‘which did not show that we are dealing with a sex offender or someone who has developed a criminal way of conducting himself,’ as well as the fact that the act was not one of the more serious sex offences, and it would appear that the lesson had been learnt. Notwithstanding, it was held that the higher the public standing of the defendant, the higher the standards and norms of behaviour that were expected of him. The court also took into account the injury to the complainant, the circumstances in which it was caused and the fact that the regret expressed by MK Ramon for the act at a late stage of the trial was inconsistent with the manner in which he conducted his defence. All of the considerations led the court to the conclusion that the public interest should be preferred to MK Ramon’s personal interest, since ‘cancelling the conviction in this case would obscure the message and blur the criminal nature of the act.’

The court also considered    the prosecution’s application to determine that the circumstances in which the offence was committed involved moral turpitude, but it denied it and held that:

‘… the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in an emotional state of indifference. The act lasted two to three seconds and ended immediately.’

The court pointed out that ‘The defendant’s conviction is a punishment in itself’ and went on to say:

‘We are aware of the mitigating circumstances… and these have led us to the opinion that the defendant’s sentence should be minimal, so that the future harm that he will suffer will stand in due proportion to the nature of the offence and the circumstances in which it was committed.’

The court therefore sentenced the defendant to 120 hours of community service and ordered him to pay compensation to the complainant, while stating expressly that in passing sentence it had taken into account the provisions of s. 42A(a) of the Basic Law: the Knesset and had tailored the sentence to what is stated in that section. It should be explained that this section concerns the disqualification from the Knesset of any member who has been convicted in a final judgment of a criminal offence that has been held to involve moral turpitude.

Sentencing considerations, judicial review considerations and the issue of moral turpitude

10. As I have said, no one disputes the fact that MK Ramon satisfies the minimum requirements in s. 6(c) of the Basic Law, since he was not given a custodial sentence. He is therefore competent to hold office as a minister in the Israeli government. As I have explained, the question in this case is a different one, namely, did the decision to appoint him as a cabinet member — and in this case as Deputy Prime Minister — at the present time, fall within the scope of the margin of reasonableness?

MK Ramon was convicted of an offence that is one of the less serious sex offences. It was an act that does indeed appear to be an isolated incident that only lasted for several seconds. In view of all the circumstances, even though the conviction relates to a sex offence, I too share the opinion of the Magistrates Court that he should not be regarded as a sex offender. These considerations had a major effect on the sentence that the court handed down to MK Ramon and on the finding that the act did not involve moral turpitude.

Notwithstanding, these sentencing considerations, and even those that determine whether an act involves moral turpitude, are not identical to the considerations that should be taken into account when examining the reasonableness of appointing someone who has been convicted in a criminal trial to public office. The sentence is dictated by penal considerations, such as retribution, rehabilitation and deterrence of the individual and the public. The balance between these, when it is made against the background of the personal circumstances of the defendant and the circumstances in which the offence was committed, determines the sentence. Even if the sentence takes the interests of society into account, even if the court considers the message that may be conveyed by handing down a particular sentence to a convicted defendant, the principle of individual justice still lies at the heart of the sentencing decision. The individual who has been convicted is the focus of the decision, not the public or the public interest. Regarding the issue of moral turpitude, it has been held many times that the expression ‘offence involving moral turpitude’ does not address the elements of the offence of which the defendant was convicted but a serious moral flaw that was involved in its commission in view of the purpose of the legislation that speaks of that ‘offence involving moral turpitude’ (HCJ 11243/02 Feiglin v. Chairman of Election Committee [36], at p. 160; HCJ 251/88 Oda v. Head of Jaljulia Local Council [37], at p. 839; HCJ 103/96 Cohen v. Attorney General [38], at p. 326; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968)). Our concern is with an ethical evaluation of the nature of the act:

‘ “Moral turpitude” accompanying an offence gives it a negative aspect that goes beyond the mere dimension of breaking the law. This is a concept that contains a negative moral-ethical judgment, a kind of moral stigma, which derives from ethical outlooks and moral criteria that are accepted by society.

This is a multi-faceted concept that takes on different forms when it is applied to the character of a specific offence and its circumstances, and the special context in which it is being considered…’ (per Justice Procaccia in Feiglin v. Chairman of Election Committee [36], at p. 162).

A decision as to whether an offence involves moral turpitude is made with reference to whether the public regards the offence as one that carries with it a stigma, which affects the ability of the person who was convicted to serve the public. The court deciding the question of moral turpitude is aware that from the viewpoint of the defendant its decision is likely to act as an exclusion from, or a readmission into, public life and public service. The focus of the consideration is the nature of the act against the background of the circumstances in which it was committed and against the background of society’s values and outlooks.

Whereas an offence involving moral turpitude emphasizes the immoral element in its commission, a criminal offence that may make it unreasonable to appoint its perpetrator to public office does not necessarily need to have an immoral aspect (Eisenberg v. Minister of Housing [1], at p. 266 {71}). Moreover, unlike the discretion exercised when sentencing someone and determining whether the offence involves moral turpitude, examining the reasonableness of discretion in a decision to appoint someone to office is different for the reason that it concerns judicial review of administrative discretion. Judicial review is carried out ‘… from the perspective of the fundamental principles of the legal system, as they are reflected in legislation and case law, and from the perspective of the fundamental values and norms of society’ (A v. Chief of General Staff [29], at p. 69). The offence and the circumstances in which it was committed are only one of many considerations that the person making an appointment should consider and that judicial review should take into account. Moreover, as I have said, in order to determine that an appointment to public office of someone convicted in a criminal trial is unreasonable, it is not essential that the act shows the person who committed it to be tainted by a moral stigma or moral turpitude. Sometimes it is sufficient that the nature of the position and the need to preserve public confidence in it do not allow someone convicted of a particular offence to hold that office. It follows that the fact that the court held that an act does not involve moral turpitude cannot rule out a finding that an appointment is unreasonable because of the conviction.

Everything said hitherto was merely intended to say that the mitigating circumstances discussed by the Magistrates Court in the sentence, as well as the finding that the act did not involve moral turpitude, cannot in themselves decide the issue in this case.

11. Admittedly, the act was one of the less serious sex offences and of short duration. It was an isolated event and the lesson has been learned. But all this cannot obscure and blur the fact that MK Ramon was convicted in a criminal trial. He no longer enjoys the presumption of innocence. He is not one of those persons who fell under the shadow of a criminal investigation that was opened against them but were never charged. At the end of a trial, he was found guilty (see and cf. Movement for Quality Government in Israel v. Government of Israel [12], at p. 57). As a rule, in such circumstances, when we are dealing with someone who has been convicted or has made a confession, the proper weight that should be attached to the question of public confidence is greater than the weight that it would be, were we speaking of someone who has merely been indicted and who protests his innocence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at pp. 462, 467-468). The premise, therefore, is that when exercising discretion, the consideration of public confidence should be given considerable weight in the circumstances of the case. Was it indeed given the proper weight?

The time factor

12. Only a short period — several months — passed between the time when MK was convicted and served his sentence and his appointment to the position of Deputy Prime Minister. The time that passes from the conviction and serving the sentence until the appointment is relevant when considering the reasonableness of a decision to appoint someone to public office. The more time that has passed since the conviction and serving the sentence, the greater the tendency to prefer the considerations of repentance and rehabilitation and to think that the appointment will not undermine public confidence in public officials, and vice versa. The period of time that should pass from the time when the offence was committed and the sentence was served until the appointment varies according to the circumstances: ‘Certainly it is not measured in a few years. But decades also should not be required. The pendulum of time will swing between these two extremes, and it will stop in accordance with the circumstances of time and place’ (Eisenberg v. Minister of Housing [1], at p. 266 {72}; A v. Chief of General Staff [29], at pp. 73-74). In our case, only a few months passed from the time that sentence was passed on MK Ramon until he was appointed a minister in the Israeli Government. The relative lack of seriousness of the offence of which he was convicted cannot instantly efface the stigma inherent in the conviction. The appointment to the position of cabinet minister in the circumstances of the case, before the ink has even dried on the verdict and the sentence, and before the air has cleared, reflects an internalization, or at least an acceptance, of improper norms of conduct that should not be regarded as deserving of public forgiveness, as if they were mere acts of youthful impudence. I accept that the nature of the offence and the circumstances in which it was committed, as well as the fact that it is not one of the most serious offences, do not mean that decades should pass before MK Ramon’s appointment to a senior public office will be appropriate. But it is not right that only a few months pass before he returns to a senior position in public service.

The seniority of the position and the rule of law

13. The criminal conviction and the fact that the appointment decision was made a very short time after MK Ramon completed serving his sentence represent in my opinion the main difficulty in the discretion that was exercised in the appointment decision. Insufficient weight was given to the harm that the appointment would cause to public confidence in the Government and its members. An additional consideration that in my opinion was not given proper weight concerns the seniority of the position to which MK Ramon was appointed.

As I have said, in this case, where the conviction is a very recent one, considerable weight should attach to the question of public confidence. What is the picture that is conveyed to the public? Let us return to the beginning of the affair. When the police investigation against him began, MK Ramon suspended himself from the position of Minister of Justice. In doing so, it should be said, he acted properly. MK Ramon’s job was ‘kept for him’ and two ministers held office in his stead as Ministers of Justice on a temporary basis until it was known how his trial would end. A short time after MK Ramon finished serving his sentence, he returned to the cabinet, this time in a more senior position of Deputy Prime Minister. It should be remembered that the importance of the position requires considerable weight to be given to the consideration of preserving public confidence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 471).

As I have said, the more important the office, the greater the weight of the consideration concerning the criminal record of the candidate. It has been held in the past that the importance of the position is not determined merely on the basis of formal tests such as seniority and job description, but also in accordance with the extent to which the public identifies the office holder with public service and the damage that will be caused to public confidence in public service if the appointment takes place (Eisenberg v. Minister of Housing [1], at p. 267 {72}). The importance of the position to which MK Ramon was appointed, namely Deputy Prime Minister, requires us to consider that this is a position that involves representation of the whole government. The role of Deputy Prime Minister, even though it is not defined in legislation, is a very senior position. Whoever holds this position represents the government and the state, and therefore very careful consideration should be given to the question of public confidence in view of his appointment to hold the post and to represent the whole government. This is a position that requires a special degree of confidence that the public will feel towards the person holding the position and towards the whole institution to which he belongs and which he represents. In such circumstances, a distinction should be made between the possibility of allowing someone who has been convicted to rehabilitate himself and to return to live a normal life after he has completed his sentence, and between placing him ‘… at the top of the administrative pyramid’ (Eisenberg v. Minister of Housing [1], at p. 266 {69}).

The short period of time and the appointment to such a senior position both convey a message to the public that the criminal trial is unimportant, and that a criminal conviction has no significance in the public sphere.

14. The findings of the Magistrates Court in MK Ramon’s case are serious, and as stated they include findings with regard to distortion and misrepresentation of the truth, not telling the truth and conduct intended to besmirch the complainant. Indeed, not only are the conviction and the judicial findings regarding the offence important, but so too is the defendant’s conduct during the trial. The fact that someone who was convicted after such serious findings were reached in his case nonetheless returned to public office immediately after he finished serving his sentence and was even given a more senior and more prestigious office is unreasonable. It reflects a normative approach that it is hard to accept. Prima facie, it does not take into account the need to maintain public confidence in public service and its integrity. A decision of an authority to appoint someone to public office while treating a criminal conviction, de facto, as insignificant, as if it had never happened or was carried away by a gust of wind, cannot be regarded as a decision that gave proper weight to the interest of maintaining public confidence in public office. The requirement that the more senior the office of a public figure, the stricter the standard of conduct that he is expected to follow, was drained of all significance in the case before us. Such a decision cannot be regarded as a decision based on a commitment to the rule of law. The following remarks should be taken to heart by the general public, and by authorities and persons in charge of them:

‘… The rule of law is not created ex nihilo, nor is it something intangible. It should be reflected in a tangible and daily observance of binding normative arrangements and in their de facto application to everyone, in the realization of basic freedoms, in guaranteeing equality and in creating a general atmosphere of trust and security. The rule of law, public welfare and the national interest are not contradictory or conflicting concepts. They are intertwined, interrelated and interdependent.

The court is specially charged with the practical realization of these expectations, but every state authority has the duty to act to realize these goals.

A sound administration is inconceivable without care being taken to uphold the rule of law, for it is this that protects us against anarchy and guarantees the stability of the system of government. This order is the basis for the existence of political and social frameworks and the safeguarding of human rights, none of which can exist in an atmosphere of lawlessness’ (Barzilai v. Government of Israel [34], at p. 554-555 {53}).

The message that the appointment conveys is that even if a criminal trial takes place, and even if it ends in a conviction, it may be said, possibly by way of hyperbole, that no one is accountable. The criminal stain that MK Ramon carries at this time is capable of tarnishing the whole Government, and this was not given proper weight. The quick appointment to a senior position, only a short time after the criminal trial ended and the sentence was served, sends a message to the public that there are no values, that one organ of Government has no respect for the work of the others, nor does it act in concert with them, even though all of these are essential for the existence of a democracy.

The nature of the offence and the effect it has on the public

15. Moreover, an additional consideration that should have been considered concerns the nature of the offence of which MK Ramon was convicted. The offence of an indecent act is relatively low on the scale of sexual offences, in view of all the circumstances. Notwithstanding, this does not diminish the seriousness of the act. As the Magistrates Court said: ‘… An offence was committed which, in other circumstances, might have been considered an offence that was not especially serious, but in view of all of the circumstances in which the offence was committed, it becomes more serious and acquires a dimension that has considerable public significance’ (para. 91 of the verdict).

An offence of an indecent act involves not only an injury to the person but also to the dignity of the victim of the offence as a human being, and to the victim’s autonomy as an individual, two things that are interrelated and closely intertwined. The existence of more serious sex offences in the statute books does not diminish the injury to dignity, nor to the autonomy of the individual:

‘Every woman and man is entitled to write his or her life’s story as he or she wishes and chooses, as long as no one encroaches upon the domain of another. This is the autonomy of free will. When a person is compelled to follow a path that he did not choose to follow, the autonomy of free will is undermined. Indeed, it is our fate — the fate of every man — that we constantly act or refrain from acting for reasons other than that it is our own free will, and in this way the autonomy of our will is found wanting. But when the injury to the autonomy of free will is a major one, then the law will intervene and have its say’ (per Justice Cheshin in CrimA 115/00 Taiev v. State of Israel [39], at pp. 329-330, even though that case concerned more serious offences).

The protection of the dignity and person of women is a social interest. No civilized society exists in which the dignity of women — or the dignity of any other person — is trampled without a murmur or without any proper response. The protection of society’s values, of which the value of human dignity is one, is not effected merely by prosecuting criminal trials and holding defendants accountable. It should be expressed wherever such expression is required by the nature of the matter. In our case, what is the message sent to the whole public — men, women and children — when they see that a cabinet minister was convicted of a sex offence that he committed against a young woman officer and then, within a short time, albeit after serving a sentence, he returns to a position that is at least equal to the one he held before his conviction, if not a more important one? It is a message that not only makes the criminal trial and the judicial ruling meaningless, but also erodes the values of respecting the person, dignity and wishes of women, especially in situations involving a disparity of forces (see also in this regard the remarks of Justice Strasberg-Cohen in A v. Chief of General Staff [29], at p. 76). It is a message that elected public officials do not need to be held to the high standard of ethics and the high standard of conduct that might be expected of them as persons who are supposed to serve as examples and models for the whole public (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470; Cohen v. Attorney General [38], at p. 326). How can the appointment be reconciled with the need to uproot norms that have no place in a civilized society? What message is sent to potential complainants that see the trials and tribulations endured by the complainant, who suffered denials and slanders, who underwent cross-examination ‘in a manner deserving of our respect’ (para. 10(a) of the verdict), who is found by the court to be a witness whose veracity is undoubted, and yet after her testimony is accepted, the conviction is reduced to nothingness?

16. I have not overlooked the fact that in sentencing MK Ramon the Magistrates Court expressly left open the possibility of his returning to the Knesset. But the Government went much further. It did not merely re-establish the status quo ante but it completely disregarded the explicit verdict and promoted someone who was recently convicted. The sentence handed down in the Magistrates Court sought to balance between the seriousness of the acts and the conduct of MK Ramon during the trial, as described above, and between the nature of the act and the circumstances in which it was committed. The Magistrates Court sought to achieve this balance by leaving the conviction as it stood, while imposing a light sentence and rejecting the proposition that the offence involved moral turpitude. The court expressly stated in its verdict that this balance was based on a premise that the MK Ramon suffered considerably as a result of the criminal trial and was likely to continue to do so as a result of the court refusing to cancel the conviction. Notwithstanding, the balance that the court struck does not, as I have said, make the exercise of discretion redundant when considering the appointment of MK Ramon to the cabinet.

I should emphasize that the decision in the petitions before us does not concern the competence of MK Ramon to serve as a member of the Knesset, which would give rise to the difficulty of undermining the will of the electorate. Intervening in a decision to appoint someone to the position of cabinet minister does not give rise to a similar difficulty, since it concerns a decision of the person in charge of the executive branch of government, in judicial review of his discretion, and it does not undermine the will of the electorate. Indeed, in the past when this court has considered petitions that sought to cancel the appointment of MK Raphael Pinchasi as chairman of one of the Knesset committees, it was held: ‘A distinction should therefore be made between the competence of a member of the Knesset to carry out his duties as a member of the Knesset and his competent to act in contexts outside the Knesset, such as in the context of the executive branch’ (HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [40], at p. 557; see also H. Cohn, ‘The Competence of Public Servants,’ Selected Writings (2001), at pp. 391, 402). This is also the position in this case.

I should clarify that I do not belittle the damage and mental anguish that MK Ramon certainly suffered as a result of being prosecuted in the criminal trial. Nor do I ignore the fact that the sentence was served in full or that the offence of which he was convicted was a relatively light one. But it is inconceivable that in the case of a public figure, who is expected ‘… to serve as an example to the people, to be loyal to the people and deserving of the trust that the people place in him’ (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470), where the damage that he suffered to his standing was a mitigating factor in his sentence, the outcome should be as it is in this case.

17. It should be emphasized that nothing in the aforesaid casts even the smallest doubt on the professional experience and abilities of MK Ramon to carry out the role given to him by the Prime Minister. In this respect, the offence of which he was convicted does not, in my opinion, have any effect or ramification on his ability to carry out this office. I am not questioning at all the additional considerations that were taken into account, and my assumption is that the Prime Minister, as the person who made the appointment, made the decision regarding the appointment after considering the tasks that confronted the Government and understanding the talents required of the ministers serving in the Government for the purpose of carrying out those tasks (see also Schussheim v. Minister of Public Security [8], at p. 846). I am prepared to accept that MK Ramon has the appropriate and proper qualifications and experience for the position. Nonetheless, it is well-known that disqualifying a candidate from holding public office does not depend only upon a connection between his criminal record and its effect on his professional ability to carry out the job for which he is a candidate, but also on his ethical and moral capacity to carry it out, unless a ‘real and urgent’ state of emergency makes it essential to appoint him as the only candidate (Sarid v. Prime Minister [28], at p. 280). In our case no such argument was made, and that is sufficient to prevent the conviction from being denied its proper weight.

A determination that a government decision to appoint a minister suffers from unreasonableness that goes to the heart of the matter creates a tension between the world of law and the world of politics, between two separate worlds that are governed by different sets of laws and different game rules. ‘The law is based, to a large extent, on ethics; democracy is based, first and foremost, on representation’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 63). When deciding petitions concerning the formation of the government, the court has the task of carefully balancing, with an approach of maximum restraint, the need to allow the public to be represented as it wishes by someone who was successful in an election and the need to preserve public confidence in government institutions and the proper moral standards of elected representatives (see CSA 4123/95 Or v. State of Israel [4], at p. 191; Movement for Quality in Government in Israel v. Government of Israel [9], at p. 429 {293-294}; HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [41], at p. 186).

This court has already, on several occasions in the past, considered the relationship between law and ethics, and between legal norms and ‘government culture’ norms (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 917-918 {440}; Movement for Quality Government in Israel v. Prime Minister [41], at pp. 157-158, 176-177). Petitions concerning the formation of the government — the appointment of a minister or his removal from office — often give rise to questions concerning the location of the border between the ethical sphere and the legal sphere, which decisions are determined by government culture norms and which are also determined by legal norms. The remarks made by Justice Cheshin in another case are pertinent in this regard:

‘… We should be always mindful of the fact that we are speaking of a government culture that is steeped in law — in norms from the field of criminal law — and the question we should ask ourselves is whether in this sphere that contains both government and law, the weight of law is so minimal that we will shrug it off and continue on our way without law. Surely allowing the demands of law to recede… is tantamount to giving up norms to which we, as people of law, regard ourselves as being committed, and which, moreover, we regard ourselves as obliged to disseminate and impose on those around us?’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 176).

He also held:

‘When we realize that the culture of “it simply isn’t done” has been undermined and that our standards have fallen very low, should the law not make itself clearly heard? Surely its voice should not sound merely like a piccolo, “clear and pure, but drowned out by the tumult?” ’ (ibid. [41], at p. 177).

President Barak also discussed the relationship between the rules of ethics and the rules of law and the proper place of the principle of reasonableness in regard to them, when he said:

‘One of the ways in which the rules of ethics become rules of law, in so far as the public authority is concerned, is through the value of reasonableness. An unethical act may, in certain conditions, be an unreasonable act. Indeed, I am of the opinion that a comprehensive application of the principle of reasonableness to all the acts of the executive branch — including acts that harm the integrity of the administration — is proper. Of course, in countries where the government exercises self-restraint, it is possible that there is no need to develop the principle of reasonableness and apply it to the field of governmental ethics. But in countries where this self-restraint is lacking — and the concept of “it simply isn’t done” is not sufficiently developed — the principle of reasonableness and the concept of the margin of reasonableness should be extended to all government acts’ (A. Barak, The Judge in a Democracy (2004), at p. 369).

There is no statutory restriction upon the appointment of MK Ramon, but it would appear that the appointment, in the circumstances described above, undermines those principles that support the rule of law, are essential to the existence of a civilized society, and ensure that public service enjoys and deserves public confidence. In such circumstances, I am of the opinion that this court has no alternative but to intervene in the appointment decision, in order to protect the norms to which our legal system is committed.

Postscript

19. I have read the opinion of my colleague Justice A. Grunis and the remarks of my colleague Justice Procaccia in response thereto. I agree in full with her remarks concerning the place and status of the ground of reasonableness in our law, and I would like add to them a few brief remarks:

a.     The premise of judicial review is the principle of the separation of powers. The separation of powers is essential for the existence of democracy. At the same time, the separation of powers does not imply that there is no connection between the branches of government. On the contrary, there is a connection between them: ‘… there is a reciprocal relationship between the different powers, so that each power checks and balances the other powers’ (HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [42], at p. 786; see also Barak, The Judge in a Democracy, at pp. 103-105). One of the expressions of the separations of powers lies in the principle, which has been mentioned innumerable times in the case law of this court, that the court will not intervene in a decision of the authority as long as it falls within the margin of reasonableness. The court does not examine whether it was possible to make a more correct, more proper, more efficient or better decision. As long as the decision that was chosen falls within the margin of reasonableness, there is no ground for the intervention of the court. Notwithstanding, it is obvious in my opinion that the principle of the separation of powers and the respect that each power shows the others — which also lie at the heart of my opinion — cannot render the function that the power has been authorized to exercise devoid of any real content. In our case, the rule of very narrow intervention in the decisions of the executive branch and the legislative branch cannot result in the decisions of those branches having a de facto immunity against judicial review. Moreover, where the court does not exercise its judicial review, it errs with regard to the principle of the separation of powers, the checks and balances that the powers owe to one other. In my opinion, restricting judicial review to various forms of procedural failures and questions of authority presents a real danger to the future of Israeli society and the proper functioning of the organs of government, since it leaves the court with a function that is almost totally technical and rules out real judicial review in which the court protects and promotes the values of society. In my opinion, restricting judicial review by an almost complete rejection of the ground of reasonableness leaves the public exposed to danger, since it is the public that will pay the price of those decisions that fall outside the margin of reasonableness.

b.     The difficulties raised by my colleague Justice Grunis in his opinion are indeed real ones, but as my colleague Justice Procaccia also says, the solution to them does not require complete or almost complete abandonment of the use of the ground of reasonableness, only great caution and maximum restraint that the court should adopt when exercising judicial review. Particularly in the case before us, I am of the opinion that the difficulty discussed by my colleague — the court being no better placed than any citizen of the state to assess the reasonableness of the decision — does not really arise. The reason for this is that the court has expertise with regard to assessing the weight of a criminal conviction, the time that has passed from the conviction and the serving of the sentence until the appointment, and the other considerations that I have discussed. No one can assess their weight as well the court. Moreover, even if it is true that determining the unreasonableness of the decision solely from the outcome that was reached — an outcome-based decision — gives rise to considerable difficulty, in the case before us the weight given to these considerations in making the decision can be seen not only from the outcome but also from the proceedings of the Knesset and all of the material presented to us. I should re-emphasize that ultimately I saw no reason to reconsider the approval given by the Knesset to the Government’s notice of the appointment, since this has been discussed in detail in the opinion of my colleague Justice Procaccia, it is not the subject of dispute in my opinion and I only saw fit to address the issues on which my opinion is based.

My remarks above address only a very small part of my position regarding the place and status of the ground of reasonableness as a tool of judicial review. The matter will, no doubt, arise in the future, and when it does, I shall discuss it in full.

Summary

20. The government’s ability to rule is based not only on the confidence expressed in it by elected representatives. The government’s ability to rule also depends ultimately on public confidence in it. As such, even if we assume that political and parliamentary considerations have considerable weight in determining the composition of the government, an essential condition for its proper functioning is a proper standard of principles, values and morality. When the court is called upon to exercise judicial review with regard to a decision that concerns the composition of the government, it should be guided, not only by the principles and rules that my colleague discussed, but also by the values and principles that society cherishes. Even in such a case it needs to strike a balance, which is merely a balance between different considerations:

‘When striking this balance, idealism that has no normative basis should be avoided. The judge does not aspire to the lofty and the pure that are unattainable. He does not contemplate an ideal society that has no real existence and cannot be achieved. He does not rely upon a perception of man as an angel. At the same time, the court should avoid a pragmatism that is based on market morality. The judge does not reflect the distorted views that are widespread in society. He does not direct his gaze at a sick society that is sinking into the abyss. He does not rely on a perspective that man is an animal… He takes current reality into account, but he does not regard it as the whole picture. The fact that “everyone does it” is not a criterion for the proper conduct of a civil servant. The fact that it is customary, commonplace and normal to act in a certain way does not make it the proper way to act…’ (Suissa v. Attorney General [33], at p. 781; see also H. Cohn, ‘Thoughts on Integrity,’ Selected Writings 417 (2001), at p. 451).

These remarks that were made in a different context are also apt in our case.

I have not overlooked the public debate surrounding the appointment in the prevailing circumstances and following the differences of opinion that surrounded the decision to bring MK Ramon to trial. Notwithstanding, judicial determinations are made in accordance with legal criteria, according to the basic principles of the State of Israel as a democratic state that espouses the rule of law and a culture of law, and the court has a duty to stand guard and protect these (see also Barzilai v. Government of Israel [34], at p. 585-586 {68-69}).

The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the Government and its members. As I have said, we are dealing with an issue that focuses on imposing ‘the rule of law on the government,’ to use Justice Barak’s expression in Eisenberg v. Minister of Housing [1], at p. 238 {23}. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. At the same time, I would emphasize that these remarks relate to the present moment, a short time after the events and the trial. Obviously, when a proper period of time has passed since the conviction and the serving of the sentence, the shadow cast by the criminal conviction and the disparaging remarks made by the Magistrates Court will fade, and it will no longer stand in the way of an appointment to a senior public office. I see no reason to consider the question of what should be the proper period of time that should pass before the appointment would be a proper one, since it has already been said in the past that ‘… any period of time that is determined contains an element of arbitrariness’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 175). We are not dealing with a question of mathematics, and in any case the determination depends inter alia on the nature of the position, the unique abilities of the candidate and the nature of the offence of which he was convicted, and these differ from case to case. Notwithstanding, a period of a few months, as in this case, is insufficient.

For all the reasons set out above, I am therefore of the opinion that it was right to issue an order nisi in the petitions. However, in view of my colleagues’ position, I have sought to set out my position, which, in essence, is that at the present time there is no alternative but to revoke the decision to appoint MK Ramon to the cabinet.

In conclusion I would like to refer to the remarks of Justice Türkel in A v. Chief of General Staff [29], where he cited remarks made originally by Justice Silberg:

‘If we seek to be a model state, a society that is a light unto the nations and a chosen people, we should remember — as Justice M. Silberg put it so well — that:

“Morality is the ideological basis of the law, and the law is the external, concrete form of some of the principles of abstract morality… The provisions of the law are — in the eyes of the legislature — the minimum moral standard that is required and expected of every citizen.

The desired ideal is that they will… coincide with one another to the fullest extent, as the water covers the sea’ (M. Silberg, Kach Darko Shel Talmud (1964), at pp. 66-67; emphasis in the original).”

This ideological basis is the infrastructure that enables the court to enforce legal norms that embody moral values. In my opinion, more than any other consideration, this is the cornerstone on which our decision stands’ (A v. Chief of General Staff [29], at pp. 77-78).

The image of society and the state is fashioned by decisions of the government in practical matters. Words are not enough. This consideration should be given a proper weight when making a decision to appoint someone to public office, and this is what should have been done in this case.

 

 

 

Justice A. Grunis

1.    With respect to the difference of opinion between my colleagues, I agree with the opinion of Justice A. Procaccia that the petitions should be denied. However, my approach is different from that of my colleague. According to my approach, in a case of this kind, where the Knesset approves the addition of a new cabinet minister, following a proposal of the Prime Minister and a decision of the cabinet, it is doubtful whether there is any basis for intervention by the High Court of Justice. Even if the court does intervene, it will do so only in a very rare and exceptional case. The present case does not justify intervention.

2.    Section 15 of the Basic Law: The Government sets out how a new minister can be brought into an existing government. The process begins with a proposal of the Prime Minister that is brought before the cabinet. The cabinet may decide to add a new minister. The Government is required to notify the Knesset of the decision and of the position that the new minister will hold. However, these steps alone are not sufficient. It is also necessary for the Knesset give its approval to the Government’s notice. In other words, the process of adding a new minister to the cabinet is not complete without a decision of the Knesset. The need for the Knesset’s approval is a characteristic of our parliamentary system, in which the formation of a government and its continuation in office depend upon the confidence of the Knesset. Thus, s. 13(d) of the Basic Law: The Government  provides that ‘The Government is constituted when the Knesset has expressed confidence in it,…’, whereas s. 28(a) of the Law states that ‘The Knesset may adopt an expression of no confidence in the Government.’

3.    In any case of court intervention in a decision of another branch, we need to take into account the relationship between three factors: the identity of the person or body that made the decision, the nature or classification of the decision and the error  tainting the decision or the ground for intervention. We shall address each of these, but we should emphasize that in this case we are not dealing merely with a challenge to a decision of an administrative authority. The addition of a minister to the government requires, as aforesaid, a decision of the Prime Minister, a decision of the Cabinet and a decision of the plenum of the Knesset. ‘The Government is the executive authority of the State’ (s. 1 of the Basic Law: The Government ). The government is the most senior administrative authority in the state. Of course, the rules applicable to judicial review of decisions of administrative authorities also apply in principle to decisions of the government. Nonetheless, the court will exercise great caution when intervening in a government decision (see HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], especially at pp. 836-837, 840-841 {316-328, 321-323}, per Justice E. Rivlin, at pp. 867-868 {359-360}, per Justice T. Or; I. Zamir, Administrative Authority, vol. 1 (1996), at pp. 89-91). Bringing a new minister into the cabinet does not take effect until the Knesset has made a decision. It follows that the success of the petition to the court depends on the court setting aside not only a decision of the most senior administrative authority, but also a decision of the Knesset. Naturally there should be a difference between judicial review of a decision of an administrative authority, and even of the Government, and judicial review of a decision of the Knesset. In our case, we are speaking of a decision of the Knesset that does not take the form of statute. Statutes are also the result of Knesset decisions, but the decisions to which we are referring give rise to different and separate questions. We are speaking of decisions of various kinds. Some of them have normative effect and may be made by various bodies in the Knesset, such as the Speaker, one of the Knesset committees, or the plenum. Since the ‘The Knesset is the parliament of the state.’ (s. 1 of the Basic Law: The Knesset), it follows that judicial review of its decisions should not be exercised in the same fashion and in the same manner as it is with regard to an administrative authority. Decisions made by the parliament, which was elected by the whole body of citizens, should not be treated in the same way as decisions of administrative authorities, even if we are speaking of the most senior authorities (see, for example, Movement for Quality Government in Israel v. Prime Minister [11], especially at p. 848 {332-333}, per Justice E. Rivlin; HCJ 73/85 Kach Faction v. Knesset Speaker [43], at pp. 158-159). When we speak of the identity of the body making the decision, we should distinguish between a situation in which a decision is made by the Knesset, such as in the present instance, and a case in which the Knesset takes no action and for that reason the administrative decision requiring the approval of the Knesset is not valid. Let us assume that the Prime Minister decides to bring a new minister into the cabinet and also that the cabinet makes a decision approving this. Were the minister to begin to act in the ministry over which he has been given responsibility before the Knesset has given its approval, we would say that the minister is acting ultra vires. If a scenario of this kind occured, it is possible that the court would act, since the seriousness of the defect is so blatant that prima facie little weight would be attached to the fact that the most senior administrative authority — the Government — has approved the appointment. Since the law requires the approval of the Knesset, if such approval was not given, it would appear that there would be a strong basis for the intervention of the court. The court’s intervention in such a case would constitute support and backing for the Knesset’s role, as opposed to intervention in a decision of the Knesset.

4.    In addition to examining the identity of the body that made the decision being challenged before the court, we should examine the decision in accordance with the nature of the act or decision. On this subject, it has been said in the past that the activity of the Knesset should be divided into three categories: legislation, decisions regarding internal parliamentary affairs, and quasi-judicial decisions (see, for example, HCJ 652/81 Sarid v. Knesset Speaker [2], at pp. 201-202 {55-56}; HCJ 1956/91 Shammai v. Knesset Speaker [44], at pp. 315-316; HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19], at pp. 141-142; HCJ 12002/04 Makhoul v. Knesset [26], and many other cases; A. Rubinstein & B. Medina, The Constitutional Law of the State of Israel (vol. 1, 2005), at pp. 235-259). Alongside the aforesaid three categories, there is another category of decisions — namely, decisions concerning parliamentary scrutiny of the Government. The main decision of this kind is a decision expressing confidence in the Government when it is formed. In addition to this decision, we should mention a decision of no less importance, which is the opposite decision — expressing no confidence in the Government (regarding the importance of such a decision in a parliamentary system, see Kach Faction v. Knesset Speaker [43]; C. Klein, ‘On the Legal Definition of the Parliamentary System and Israeli Parliamentarianism,’ 5 Hebrew Univ. L. Rev. (Mishpatim) 309 (1973), at pp. 312-313). Less significant powers given to the Knesset with regard to the formation of the government, its structure, and its composition, are the approval of government decisions regarding a change in the division of functions between members of the government (s. 31(a) of the Basic Law: The Government); transferring a power given by law from one minister to another (s. 31(b) of the Basic Law: The Government); combining, separating or eliminating government ministries; establishing new ministries (s. 31(c) of the Basic Law: The Government); and, of course, adding a new member to the cabinet.

5.    In addition to the aforementioned powers of the Knesset relating to the Government, the Knesset has additional powers of supervision. The ultimate possibility of exercising supervision is by means of primary legislation. The Knesset can pass various laws that increase or limit the powers of the executive branch. In this way, it is possible to exercise supervision of this branch. Another possible type of supervision is introducing a condition that the validity of subordinate legislation depend upon a decision of the Knesset (usually, one of the Knesset committees). The authority for such a requirement arises from an express provision in a Basic Law or an ordinary statute (for a general discussion of the Knesset’s supervisory role regarding subordinate legislation, see B. Bracha, ‘Towards Parliamentary Supervision of Subordinate Legislation? The Draft Basic Law: Legislation, Chapter 3,’ 7 TAU L. Rev. (Iyyunei Mishpat) 390 (1979)). In this context we should mention that this court has held that the scope of judicial review with regard to subordinate legislation that has received the approval of the Knesset is narrower than that exercised with regard to ordinary subordinate legislation that does not require such approval (see, for example, HCJ 108/70 Manor v. Minister of Finance [45], at p. 445; HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [46], at p. 774; HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [47], at p. 172; for a general discussion of the grounds for intervening in subordinate legislation, see HCJ 156/75 Daka v. Minister of Transport [48]). It follows that the fact that the Knesset approved an administrative decision — in that case subordinate legislation — narrows the scope of the scrutiny. In addition to supervision that has normative force, the Knesset has additional means at its disposal. We should mention the possibility of tabling motions, debates in the plenum or in one of the Knesset committees, submitting questions, and the activity of the Knesset (and especially the State Control Committee), with regard to reports and opinions of the State Comptroller (see chapter four of the State Comptroller Law [Consolidated Version], 5718-1958; for a general discussion of the Knesset supervision of government actions, see Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 2), at pp. 745-756).

6.    We therefore need to ask how we should rank the various types of Knesset decisions — legislation, parliamentary supervision, internal parliamentary matters, and quasi-judicial acts — from the viewpoint of judicial review. In other words, when will judicial review be relatively broad and when will it be narrow? There is no doubt that, with regard to primary legislation, judicial review is very limited. The court does not have the power to set aside a statute, except in those cases where there is a conflict between an ordinary statute and a Basic Law. At the other extreme of the spectrum lie quasi-judicial decisions of the Knesset or of one of its committees. Between these lie the decisions on internal parliamentary matters and decisions concerning parliamentary supervision of the executive branch. It can be said that insofar as a decision concerns the essence of the parliamentary function, namely legislation and parliamentary supervision of the executive branch, the court will tend to refrain from intervention. The relatively broad scope of intervention in quasi-judicial decisions is founded, it would appear, on the idea that the parliamentary minority needs to be protected against the excessive power of the majority (regarding the protection of a parliamentary minority, even with regard to a decision that is not quasi-judicial, see Kach Faction v. Knesset Speaker [43]; Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 1), at pp. 241-242). The difference in the scope of judicial review exercised with regard to different decisions is also explained on the basis of the political element in the decision under consideration. The greater the political element in a decision, the greater the restraint that is required of the court. This can be shown by means of a comparison between intervention in subordinate legislation that has received the approval of the Knesset and exercise of judicial review with regard to a vote of confidence in a new government. Clearly the court will intervene in a decision of the latter type only in extreme cases (see Movement for Quality Government in Israel v. Prime Minister [11]), and in cases where forgery, fraud, or a similar voting impropriety determined the result (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [49]). Decisions within the framework of parliamentary supervision are often decisions in which the political element is considerable. The court ought to distance itself from intervention in decisions of this kind (see the opinion of the majority justices in Movement for Quality Government in Israel v. Prime Minister [11]).

7.    Another factor that may affect the intervention of the court and its scope in decisions of the Knesset is the ground for the intervention or the defect in the decision or in the decision-making process. Broadly speaking, the defects can be divided into three types: ultra vires, procedural impropriety, and unreasonableness. In addition to these we should mention other defects such as discrimination, conflict of interest, incorrect interpretation of the law, and disproportionality.

8.    The defect of a procedural impropriety, in the context of judicial scrutiny of Knesset decisions, presents a special problem. The court has recognized expertise on the subject of procedural improprieties. Sometimes a claim is raised in the court that an administrative decision should not be allowed to stand because of an impropriety in the decision-making process. The willingness of the court to intervene in a decision because of a procedural impropriety is relatively high. One reason for this is that intervention on the ground of a procedural impropriety does not consider the question whether the decision on its merits was right, reasonable, or logical, since the court is not the competent body to make that decision. Another reason is that the court, and especially an appeals court, is responsible for correcting procedural improprieties that are found in the actions of lower courts. When the court sets aside an administrative decision because of a procedural impropriety, it compels the authority to act in accordance with the law. It tells the authority that it should comply with the provisions of the law in the process of making the decision. It follows that there is great justification for judicial intervention when a decision is not made in accordance with the proper procedure. On the other hand, insisting upon every detail of the proper procedure, no matter how minor, may make it difficult for the authority making the decision to function. Not every procedural defect is significant, nor should every impropriety in procedural matters result in judicial intervention. The problem is particularly obvious with regard to procedural improprieties in acts of the Knesset. There is a natural desire to refrain from judicial involvement in the activity of the Knesset, in view of the fact that the Knesset is the body elected by all the citizens of the state. This reluctance is highlighted in cases of internal parliamentary matters. This term often refers to procedural matters and the everyday proceedings of the Knesset. Therefore the court does not intervene with regard to the time at which a debate on a no-confidence motion in the government will be held (Sarid v. Knesset Speaker [2]), a petition against a decision of the Speaker of the Knesset to include a certain matter in a debate at the request of the Government when it is claimed that insufficient notice has been given (Shammai v. Knesset Speaker [44]), or a decision of the Speaker to postpone the holding of a vote on a draft law when the delay is a short one (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]). Notwithstanding, procedural defects may be very harmful, even when we are speaking of the actions of the Knesset. One example of this is the lifting of a Knesset member’s immunity without giving him an opportunity to state his case (see Pinchasi v. Knesset [23]). The justification for judicial intervention here derives from the fact that this was a quasi-judicial proceeding in which there was a serious flaw. It is possible that even when we are not speaking of a quasi-judicial proceeding in the Knesset, the court will intervene if the procedural flaw seriously harms an opposition party in the Knesset. Case law has held, in a very broad fashion, that the court will intervene if major values of the constitutional system are undermined (as in Sarid v. Knesset Speaker [2], at pp. 203-204). For example, if a decision of the Speaker of the Knesset denies an opposition party the right to address the Knesset, thereby committing a flagrant and ongoing breach of the rules of the Knesset, it is possible that the court ought to intervene. If the court does not grant relief, there would be no other body that could help to enforce the law upon the parliament. Thus, in my opinion, by intervening here the court would fulfil its classic role in the field of public law — the protection of minorities — which in this case concerns a parliamentary minority.

9.    The defect on which the petitioners base their petition against the decision to bring MK Ramon into the Government is unreasonableness. My colleague, Justice E. Arbel, accepts this argument and holds that the decision was unreasonable. My opinion is different. We should recall that in this case we are not speaking merely of a challenge to a decision of the Prime Minister and of the Government to appoint MK Ramon as a cabinet minister, but also of a challenge to a decision of the Knesset. The ground of unreasonableness is essentially different from the defects of ultra vires and procedural defect. When the court examines these two defects, the advantage and unique role of the court are self-evident. The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws. We should point out that questions of authority and procedural flaws arise also in the fields of criminal law and civil law. By contrast, the court has no special advantage or expertise on the subject of unreasonableness. Admittedly, the ground of unreasonableness is not new to our law and it was recognized in the early years of the state (see, for example, CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [50]). Notwithstanding, in recent decades, especially since the judgment of Justice A. Barak in HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], it has undergone a change and has almost developed into a kind of ‘supreme norm’ (like good faith and public policy). In the course of this development, it has swallowed up, like a person whose appetite is insatiable, specific grounds for judicial scrutiny that were recognized in the past (for example, the grounds of irrelevant purposes and irrelevant considerations). The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case. The development of the law in common law countries is done by the courts, inter alia by means of doctrines and subtests that apply very abstract norms, whether founded on statute or case law, on a more specific level. The ground of reasonableness is different in the sense that the passage of time has not resulted in the development of norms on a lower level of abstraction, which would make it easier for us to find a concrete solution and to reduce uncertainty when a claim of unreasonableness is raised. In this it differs, for example, from the ground of disproportionality (regarding the subtests of disproportionality, see for example HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [51] (opinion of Justice A. Barak); HCJ 3379/03 Mustaki v. State Attorney’s Office [52], at pp. 907-908; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [53], at pp. 839-840 {296-297}, and many other cases). Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account (see Daka v. Minister of Transport [48], at pp. 105-106; HCJ 935/89 Ganor v. Attorney General [14], at pp. 514-516 (per Justice A. Barak); HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at pp. 420-421 (per President M. Shamgar); HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 464, and many other cases). Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result. The problem is particularly acute when the authority making the decision is a collective body.

10. The decision to approve the appointment of MK Ramon to the cabinet was approved by a majority of members of the Knesset, 46 versus 24. Where a decision is made by a body composed of a number of members, it is difficult to examine the considerations that were taken into account. Even if each of the members of the body publicly stated his reasons, it is impossible, or at least very difficult, to determine the relative weight that was given to each consideration in reaching the final result, which is a collective decision. This is the reason that the duty to give reasons, which usually applies to administrative authorities and other authorities, has not been applied, at least not in full, to authorities that are collective bodies (see, for example, HCJ 89/64 Greenblatt v. Israel Bar Association [54], at pp. 409-410; HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [55], at pp. 329-330; HCJ 306/81 Flatto-Sharon v. Knesset Committee [22], at p. 133). In the case before us, only a small number of Knesset members expressed their opinions during the debate in the plenum, and even they did not address the appointment of MK Ramon in specific terms but only in general statements (minutes of the 138th session of the seventeenth Knesset (4 July 2007). Clearly, in such circumstances it cannot be said with certainty what were the considerations that were taken into account by each of the members who voted to approve the decision. It is even harder to determine the weight given to each consideration. Therefore, what is done de facto by the judge who thinks that the decision is tainted by unreasonableness is to examine the outcome, i.e., the ramifications of the decision. Sometimes what is done in such cases can be referred to as ‘reverse engineering.’ In other words, the court examines the outcome, i.e., the decision, and in a process of hindsight it lists the considerations that it imagines were taken into account by the body that made the decision. If the final decision is unacceptable to the court, it will say that one of the considerations was given excessive weight or that a certain consideration was not taken into account at all. We therefore need to take with a grain of salt the remark that is sometimes made in this regard, that the court does not replace the discretion of the authority authorized by the law to make the decision with its own discretion (for use of this formula, see for example HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [56], at p. 69 (per Justice I. Zamir); HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [57], at p. 125; HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security [58], at para. 7(c) (per Justice E. Rubinstein); for a case in which, despite this statement, it was decided to intervene in the authority’s discretion, see Zidan v. Minister of Labour and Social Affairs [47]). It would therefore appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is indeed replacing the discretion of the authority with its own discretion. In this case we should remember that we are dealing with a collective body of 46 members of Knesset who voted for the decision to bring MK Ramon into the Government.

From our deliberations hitherto we see that the use of the ground of unreasonableness is highly problematic, especially when a decision of a collective body is challenged on this ground.

11. I do not intend to say that we should ignore or cancel the ground of unreasonableness. In my opinion, the use of relatively narrower and more concrete grounds — such as irrelevant reasons, irrelevant purposes, or discrimination — should be preferred. These grounds or defects have a lower level of abstraction and therefore their use will reduce the scope of judicial discretion and increase legal certainty. The use of the ground of unreasonableness will be justified in extreme cases, only when all the possibilities of judicial review on the basis of more precise grounds have been exhausted, and especially when the case involves a violation of human rights. It is possible that we should return to the use of the term extreme unreasonableness, which it would appear has been forgotten to some extent. Of course, this verbal test also suffers from imprecision and involves a significant amount of judicial discretion. Notwithstanding, the use of the adjective ‘extreme’ acts as a warning to the court. The court should refrain from replacing the authority’s discretion with its own discretion, not merely as a matter of rhetoric but also in practice.

12. The petition before us raises a claim of unreasonableness with regard to a decision of the plenum of the Knesset, which gave its approval to a decision of the Prime Minister and the Government to add a minister to the cabinet. The new minister is MK Ramon, who was convicted a few months ago of a sex offence. MK Ramon was sentenced. The sentence he was given and the determination of the court that the act does not involve moral turpitude lead to the result that the conditions provided in the law were not violated by the appointment (I am, of course, referring to the provisions of s. 42A of the Basic Law: The Knesset, and s. 6 of the Basic Law: The Government). Should this court determine that the decision of the Knesset, when it approved the appointment, was unreasonable? My answer to this question is no. The body that made the ultimate decision that completed the appointment process was the parliament. The decision to approve the appointment is clearly a political one. Naturally, the members of the Knesset had a duty to take into account the fact that the new minister had been convicted of a sex offence. We cannot say how this consideration compared with other relevant considerations. The alleged defect in the decision is not one of ultra vires. The defect on which the petitioners rely does not concern a procedural impropriety in the process in which the Knesset reached its decision. We are not even dealing with a question of the interpretation of statute, nor with a decision that violated an existing right of an opposition minority. The claim is that the decision to bring MK Ramon into the Government is unreasonable. As stated, this ground is very amorphous, because of its high level of abstraction. In these specific circumstances, the court is no better placed than any citizen of the state to determine the question of the reasonableness of the decision. We are not dealing with a matter that requires legal expertise. On the basis of all the aforesaid, my conclusion is that the court should refrain from intervening in the decision.

13. The determination that the court will not set aside the decision to bring MK Ramon into the Government does not amount to a ratification of that decision (see and cf. Movement for Quality Government in Israel v. Prime Minister [11]). Non-intervention is not equivalent to giving approval or legitimizing a decision. All that the court is saying is: ‘In the circumstances of the case, it is not for the court to determine whether the decision is improper.’ The court leaves the question in the public domain. It may be assumed that there will be citizens who will think that the appointment of a cabinet minister who has committed a sex offence is absolutely wrong. They may think that such an appointment is a stain on the Government. Even if this is the case, the matter does not require the court to intervene. We are distinguishing between our opinion as citizens and our thinking as justices. Public opinion and judicial opinion are not necessarily the same thing, and it is right and proper that they should not be.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

26 Kislev 5768.

6 December 2007.

 

Full opinion: 
PDF icon Emunah v. Prime Minister.pdf
Link to original Hebrew text of decision on official ISC website: 
http://elyon1.court.gov.il/files/07/530/058/R07/07058530.r07.pdf

Mandelbrot v. Attorney General

Case/docket number: 
CrimA 118/53
Date Decided: 
Friday, February 24, 1956
Decision Type: 
Appellate
Topics: 
Criminal Law
Conviction
Criminal responsibility
Abstract: 

The appellant was charged under section 214(b) of the Criminal Code Ordinance, 1936, with the murder of one Meir Shifman. He was employed at the Ata textile works in the north of Israel in the year 1951. On December 26, 1951, he went to work taking a loaded revolver with him. At 9.30 a.m. he went towards a fellow employee, with whom he had at one time been friendly, one Luba Kreiner, and fired two shots at her which struck her in the right arm. She tried to run away from the appellant, but tripped up and fell. Shifman, a member of the workers' committee, seeing what had happened threw himself face down on the floor of the works but the appellant came up to him, fired two shots into his head, and killed him. After firing these two shots, he reloaded his revolver, fired further shots at Kreiner and at other persons and then left the place where he had been working.

           

The appellant was arrested on the following day and charged with the murder of Shifman and with the attempted murder of Kreiner and another. After the charge had been read to him and he had been warned that he need not say anything but what he did say might be used at his trial, he admitted that he was the man who had done the acts that had occurred at the Ata works, one day previously.

           

At the trial his defence was that he was not of sound mind when he fired the shots at Shifman and he relied upon the M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance, 1936.

               

The appellant was examined by a number of medical experts who came to the conclusion that he was a paranoiac, that he knew what he was doing and knew that what he was doing was wrong, but after he had fired the first shots he was in a state of trance and that at the moment when he fired at Shifman and thereafter he acted in a trance.

           

The District Court held that the defence set up under the M'Naghten Rules must, in the light of the medical expert evidence, fail and was further of the opinion, in the light of the statements made by the appellant the day following the killing, that he was not in a state of trance at the time he fired at Shifman. As, however, the element of preparation had not been established he was convicted of manslaughter and sentenced to life imprisonment.

 

The appellant appealed against the conviction and sentence. The Attorney-General cross-appealed.

               

Held: by a majority that the appeal be allowed and that the cross-appeal be dismissed.

               

Per Agranat J., the M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance did not provide a defence in the present case but that section 14 did not exhaust the rights of a paranoiac. Such a person may also rely on section 11 of the Ordinance which lays down that a person shall not be criminally liable for any act or omission which occurred without the exercise of his will. As in the present case the appellant was not capable of exercising any will, he had a good defence to the charge of murder.

               

Per Silberg J., the court below was wrong in refusing to accept the unanimous and uncontradicted evidence of all the medical experts that at the time of the shooting at and killing of Shifman, the appellant was in a state of trance. The court of first instance was not entitled to refuse to accept this evidence merely on its own belief that certain actions of the appellant at the time of the shooting, of which the experts were aware, seemed to negative their conclusion. Accordingly, as the only evidence before the court was that the appellant was in a state of trance at the time when he fired the fatal shots at Shifman, it could not be said that he knew what he was doing or knew that what he was doing was wrong. The M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance therefore applied, and the appellant had a good defence to the charge of murder.

               

Per Goitein J., on the medical evidence the M'Naghten Rules did not apply and the court below was entitled to rely upon the statements made one day after the killing by the appellant himself, from which it might be inferred, and the court of first instance was entitled to infer, that the appellant was not in a state of trance when he fired the shots which killed Shifman. It was not for the appellate court to find facts different from those found by the court of first instance when the findings of the judges of that court were based on an appreciation of the evidence. Accordingly the appellant knew what he was doing at the time he fired the shots and knew that it was wrong to fire them. As, at the time, he was not in a state of trance, section 14 of the Criminal Code Ordinance offered him no defence and since, however, the element of preparation had not been proved, the court below was right in finding him guilty of manslaughter.

Voting Justices: 
Agranat, Shimon
Primary Author
majority opinion
Silberg, Moshe
Author
concurrence
Goitein, David
Author
dissent
Full text of the opinion: 

Crim.A. 118/53

ZALMAN MANDELBROT

 v.

THE ATTORNEY-GENERAL

 

In the Supreme Court sitting as a Court of Criminal Appeal

[February 24, 1956]

Before Agranat J., Silberg J., and Goitein J.

 

Criminal Law - Criminal Code Ordinance, 1936, sections 11, 14, 214(b), 216 (c), - Murder - M'Naghten Rules - Paranoiac - State of trance - Manslaughter.

 

                The appellant was charged under section 214(b) of the Criminal Code Ordinance, 1936, with the murder of one Meir Shifman. He was employed at the Ata textile works in the north of Israel in the year 1951. On December 26, 1951, he went to work taking a loaded revolver with him. At 9.30 a.m. he went towards a fellow employee, with whom he had at one time been friendly, one Luba Kreiner, and fired two shots at her which struck her in the right arm. She tried to run away from the appellant, but tripped up and fell. Shifman, a member of the workers' committee, seeing what had happened threw himself face down on the floor of the works but the appellant came up to him, fired two shots into his head, and killed him. After firing these two shots, he reloaded his revolver, fired further shots at Kreiner and at other persons and then left the place where he had been working.

           

            The appellant was arrested on the following day and charged with the murder of Shifman and with the attempted murder of Kreiner and another. After the charge had been read to him and he had been warned that he need not say anything but what he did say might be used at his trial, he admitted that he was the man who had done the acts that had occurred at the Ata works, one day previously.

           

            At the trial his defence was that he was not of sound mind when he fired the shots at Shifman and he relied upon the M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance, 1936.

               

            The appellant was examined by a number of medical experts who came to the conclusion that he was a paranoiac, that he knew what he was doing and knew that what he was doing was wrong, but after he had fired the first shots he was in a state of trance and that at the moment when he fired at Shifman and thereafter he acted in a trance.

           

            The District Court held that the defence set up under the M'Naghten Rules must, in the light of the medical expert evidence, fail and was further of the opinion, in the light of the statements made by the appellant the day following the killing, that he was not in a state of trance at the time he fired at Shifman. As, however, the element of preparation had not been established he was convicted of manslaughter and sentenced to life imprisonment.

 

                The appellant appealed against the conviction and sentence. The Attorney-General cross-appealed.

               

                Held: by a majority that the appeal be allowed and that the cross-appeal be dismissed.

               

                Per Agranat J., the M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance did not provide a defence in the present case but that section 14 did not exhaust the rights of a paranoiac. Such a person may also rely on section 11 of the Ordinance which lays down that a person shall not be criminally liable for any act or omission which occurred without the exercise of his will. As in the present case the appellant was not capable of exercising any will, he had a good defence to the charge of murder.

               

                Per Silberg J., the court below was wrong in refusing to accept the unanimous and uncontradicted evidence of all the medical experts that at the time of the shooting at and killing of Shifman, the appellant was in a state of trance. The court of first instance was not entitled to refuse to accept this evidence merely on its own belief that certain actions of the appellant at the time of the shooting, of which the experts were aware, seemed to negative their conclusion. Accordingly, as the only evidence before the court was that the appellant was in a state of trance at the time when he fired the fatal shots at Shifman, it could not be said that he knew what he was doing or knew that what he was doing was wrong. The M'Naghten Rules as set out in section 14 of the Criminal Code Ordinance therefore applied, and the appellant had a good defence to the charge of murder.

               

                Per Goitein J., on the medical evidence the M'Naghten Rules did not apply and the court below was entitled to rely upon the statements made one day after the killing by the appellant himself, from which it might be inferred, and the court of first instance was entitled to infer, that the appellant was not in a state of trance when he fired the shots which killed Shifman. It was not for the appellate court to find facts different from those found by the court of first instance when the findings of the judges of that court were based on an appreciation of the evidence. Accordingly the appellant knew what he was doing at the time he fired the shots and knew that it was wrong to fire them. As, at the time, he was not in a state of trance, section 14 of the Criminal Code Ordinance offered him no defence and since, however, the element of preparation had not been proved, the court below was right in finding him guilty of manslaughter.

           

Palestine case referred to: -

 

(1)        Cr. A. 6/42 - Asa'ad Ibn Haj Said el Khalil v. Attorney-General, (1942) 2 S.C.J. 88.

 

Israel cases referred to: -

 

(2)        Cr. A. 125/50 - David Ya'acobovitz v. Attorney-General, (1952), 6 P.D. 514.

(3)        C.A. 150/50 - Aryeh Kaufman v. Binyamin Margines, (1952), 6 P.D. 1005.

(4)        Cr. A. 46/54 - Attorney-General v. Segal, (1955), 9 P.D. 393.

 

English cases referred to: -

 

(5)        Sodeman v. R., (1936) 2 All E.R. 1138.

(6)        R. v. James Jefferson, (1908), 1 Cr. App. R. 95.

(7)        R. v. Ronald True, (1921-22), 16 Cr. App. R. 164; (1922) 127 L.T. 561.

(8)        R. v. James Frank Rivett, (1949-50), 34 Cr. App. R. 87.

(9)        Daniel M'Naghten's Case, (1843), 8 E.R. 718.

(10)      R. v. Georges Codere, (1916-17), 12 Cr. App. R. 21.

(11)      Hadfield, (1800), 27 St. Tr. 1281.

(12)      Reg. v. Edward Oxford, (1840), 173 E.R. 941.

(13)      R. v. Hay, (1911), 22 Cox C.C. 268.

(14)      R. v. Fryer, (1915), 24 Cox C.C. 403.

(15)      R. v. Frederick Rothwell Holt, (1920-21), 15 Cr. App. R. 10.

(16)      R. v. Joseph Edward Flavell, (1925-26), 19 Cr. App. R. 141.

(17)      R. v. Alfred Arthur Kopsch, (1925-26), 19 Cr. App. R. 50.

(18)      R. v. Davis, (1881), 14 Cox C.C. 563.

(19)      R. v. Haynes, (1859), 175 E.R. 898.

(20)      Felstead v. R., (1914) A.C. 534.

(21)      Reg. v. Pitts, (1842) 174 E.R. 509.

(22)      Reniger v. Fogossa (1550) 1 Plowd. 1.

(23)      Reg. v. Charlson, (1955) 1 All E.R. 859.

(24)      R. v. Arnold, (1724) 16 St. Tr. 695.

(25)      R. v. Bellingham, (1812), 1 Collinson on Lunatics, 636.

(26       )R. v. Charles Aughet, (1917-18), 13 Cr. App. R. 101.

(27)      R. v. Frederick Henry Thomas, (1911-12), 7 Cr. App. R. 36.

 

American cases referred to: -

 

  1. Parsons v. State, (1886) 81 Ala. 577; cited in 70 A.L.R. 663.
  2. Smith v. United States, (1929) 36 F. 2d. 548.

(30) State v. Nixon, (1884) 32 Kan. 205; 4 Pac. 159; 5 Am. Crim. Rep. 307; cited in 70 A.L.R. 677.

(31) Monte W. Durham v. United States of America, (1954) United States Court of Appeals for the District of Columbia Circuit, No. 11859, 16.

 

 Levitsky for the appellant.

Rabinowitz, District Attorney, Haifa, for the respondent.

 

AGRANAT J: Zalman Mandelbrot (hereinafter called "the appellant") was charged in the Haifa District Court with murder under section 214(b) of the Criminal Code Ordinance, 1936, in that on December 26, 1951, at the Ata factory in Ata Village, with premeditation, he caused the death of Meir Shifman. The appellant's defence at the trial was based mainly on a plea of insanity. The learned judges who tried the case rejected the plea, but on the other hand decided to convict the appellant of manslaughter only, under s. 212, after finding that the element of "preparation" had not been proved. In the event, they sentenced him to life imprisonment. Both the appellant and the Attorney-General (hereinafter called "the respondent") have appealed against the judgment.

 

            At the hearings that took place before us the appellant's arguments revolved first and foremost around the finding of the judges of first instance that the plea of insanity had not been proved. I think it right to deal first with that part of the appeal, seeing that if I find that the appellant ought not to be held liable from the point of view of criminal law by reason of the mental disease from which he was suffering at the time of the act, I shall not have to deal with his other submission concerning the severity of the sentence, nor with the respondent's appeal against the appellant's conviction of manslaughter only, and not of murder.

           

            There being no dispute that the appellant committed the act of homicide which is the subject of the charge I shall, for the purpose of describing the circumstances surrounding that act, content myself with quoting the following passage from the judgment of the District Court:

           

"The accused and the deceased were both employed as workers in the spool department of the Ata factory at Kfar Ata. A girl by the name of Luba Kreiner also worked in that department. The department is housed in the large hall measuring 30 by 30 meters, and in the hall are machines for winding the thread on the reels and other machines, in two groups separated by an aisle. The main entrance to the hall is from the south side and along the south wall are a number of tables at which workers are engaged in marking the reels of thread that have been wound in the department, and in packing them in cases. Another aisle separates these tables, from the group of machines on the south side of the hall, and in the aisle the cases, into which the finished reels of thread are packed, usually stand. The incident took place on December 26, 1951, during the morning shift which commences at 5.30 a.m. According to the ordinary work arrangement the deceased Shifman did not have to work in that shift, but on the previous day he had agreed with another workman by the name of Mizrachi to change over with him, at the latter's request. The deceased worked at one of the tables on the south side of the hall, and at the time of the incident was engaged in closing a case and was holding a hammer in his hand. Two other workmen, prosecution witnesses Besser and Appelstein, were working next to him. It was their task to collect the finished reels from the spooling machines and to arrange them inside the cases. Besser was working at some distance from the deceased on the east side, and Appelstein at a distance of several meters from the deceased on the west side. The length of each of the spooling machines in the hall is approximately ten meters, and at each machine there work four female hands, two on each side, each one attending to half the length of the machine. Luba Kreiner worked that morning next to the spooling machine which was then known as machine no. 6, …facing the machine and the east wall of the hall. Her section was the left-hand (northern) side of that machine. The accused was working that morning in transporting cases containing the unwound thread reels to the spooling machine, and in transporting the finished reels from the machines to the south side of the hall, where they were packed. At approximately 9.30 a.m., he went up to Luba Kreiner, who was standing by her spooling machine, and from a "Tuppee" revolver fired two shots which hit her right arm. At the sound of these shots panic broke out in the factory, and male and female workers began running in every direction. Luba Kreiner herself tried to get away to the south side along machine number 6, but next to the aisle where the cases were it appears that she tripped over some boards that were lying on the floor and fell down. The accused went or ran after her up to that spot. The deceased Shifman, whose place of work next to the cases was only a few meters, diagonally, from the place where Luba Kreiner fell, threw himself flat on the floor, face down. The accused approached him with the revolver drawn in his hand and from a short distance of about half a meter, fired two shots into the deceased's head. The bullets penetrated the skull at two places close to each other, and the deceased died on the spot from a cerebral haemmorrhage. After shooting Shifman, the accused withdrew several paces backwards and reloaded his revolver. In the meantime, Luba Kreiner had managed to rise and was continuing to make good her escape by retracing her steps along machine number 6 until she reached the wide aisle between the two groups of machines, and from there she turned left (westwards). The accused continued to chase after her, and while so doing hit her in the back with four more shots. From those shots she at length fell in the wide aisle, and the accused stood close to her and once more loaded his revolver. At the same time Dr. Otto Weinrib, the department manager, appeared opposite the accused. When the accused saw Dr. Weinrib, he fired one shot at him which hit Weinrib's leg. Thereafter, the accused left the hall and continued to walk at an ordinary pace along the internal road of the works to the west side. On his way, he encountered a worker by the name of Zalts, who works in the stitching department, and he turned to him with the question: 'Zalman, what's happened?' Instead of answering him, the accused turned to Zalts and fired one shot at him which missed its mark; he continued walking along the road and entered the offices that are in a hut at the side of that road, opened the doors of the hut as if he were looking for somebody, but did not find what he was looking for, went back once more, continued on his way along the road and disappeared on the west side."

 

            The facts found by the court in connection with the manner of the appellant's arrest after the incident and his being brought to the police station are also of importance, because of the contents of the statements that he then made to the police. These are the judges' findings in that connection:

           

            "The police began to search for the accused, but he was not found until the next day, December 27, at 12.30 p.m., when he entered the offices of the Kiryat Binyamin quarter, which borders on Kfar Ata. The offices are in the water-tower of Kiryat Binyamin. The accused announced to those sitting in the office that he was the one that had committed the deed in the Ata factory. Mr. Nehemia Rosenberg, an official of the Kiryat Binyamin Committee, got in touch with the police, and a patrol-squad of policemen appeared under the command of Sergeant Patievsky, who charged the accused with the murder of the deceased Shifman and with attempting to murder Luba Kreiner and Dr. Weinrib. The accused briefly replied to the charge: 'I intended to kill Luba and Shifman, but not Otto Weinrib' (see exhibit P/3). He was brought to the police station at Shfar'am and was there charged a second time on the same day, at 4. p.m., by Assistant District Inspector Movshovits. and made a further statement".

           

The contents of that statement ought to be quoted in full: -

 

            "I understand the charge and the warning and I want to say that what led me to this affair is that the late Mr. Shifman ever since I have worked in that department, was all the time making trouble for me, like when I asked for a rise and he said I was not entitled to it. Two months ago they took me off to paint in the housing estate and they promised to take me back to my department where I had been working. I applied to the late Shifman and he answered me that that is impossible. So I argued if my department is working three days a week and for the other three days they are getting fifty per cent, so I am also entitled just like the other workers. After that, things turned out that for a week and a half I wandered around without work. Now, for the business of Luba. I have been working in that department for about two years, that girl started what you might call 'making up to me', and all the time I put her off. And after that I was in the army and I invited her to a date in Kiryat Motskin and after that we used to meet almost every evening and once I also invited her to my home and she came. And slowly I got what you call mixed up with her. During the time that I went out to the estate to the painting job, we lost touch with one another. Once I turned up at her place of work, and I asked her once more for a date. She did not want to. A couple of days later I turned up once again and she also refused. Once I waited for her at two o'clock when she returned from work and I said to her if she would not meet me then I would do for her and myself together. She agreed to meet me and I had my revolver with me. She begged me not to kill her and for my part I did not have any intention at all of killing her, only of threatening her. And she agreed to meet me a second time. Two months later, when I came back from the estate, I went back to our department, that is to say my department, the spooling department. That business started again, me asking her to have pity on me and to meet me a second time because I was already what you call not all right, at home I had no rest, I did not sleep nights. My wife shouted at me that I was useless, whatever I do is no good, and I was already under the influence of Luba's love, and once more I turned to her to have pity on me and on herself and once more she refused and laughed at me. On the 26th in the morning, I took the revolver with me to work and I decided to do what I did. As far as Dr. Weinrib is concerned, I had no intentions. It seems I was a little sort of what you call sort of foggy and all mixed up at the time I fired, then he went by and I had no intention of hitting him at all. About the tall chap who I think works in the stitchery it is also not right like it looked as if I wanted to plug him with a bullet, fact is that there is in our department a chap by the name of Besser who I like just as I liked the late Shifman and he stood in front of me and I did not do anything to him either. That is all."

 

            The main defence at the trial was that the effect upon the appellant of his attack upon Luba Kreiner was to be taken into account in addition to the mental disease from which he was suffering prior to the commission of the criminal acts mentioned. The consequence of both these factors was that he was no longer conscious of what he was doing, or his mind became blurred immediately after he had fired at the woman, so that when he aimed his revolver at the victim Shifman and pressed the trigger, he was in fact acting as an automaton. This version of the facts was supported by the evidence of the appellant himself in court, in which he testified (and once more, we may rely on the judges' summary of his evidence) that, after the first shot at Luba Kreiner, he became completely confused by the shouts that broke out all around him and by the noise of the machines, so that he does not at all remember what he did and what happened to him from that moment until the evening of the same day, at nightfall, when he awoke and found himself on the water-tower at Kiryat Binyamin. Of what happened before he has but a very vague picture in his memory, in which he sees himself standing in front of the water-tower. The appellant went on to describe in his evidence the various attempts that he made at that stage to commit suicide until eventually he lost his nerve and decided to surrender to the police.

 

            The version of the defence is supported principally by the expert opinion of each of the three doctors who gave evidence in the case. The first of them is Dr. Vinik, Superintendent of the Mental Hospital of the Kupat Holim 1) in Talbieh, Jerusalem, who appeared in the case as a witness for the defence. At the close of all the evidence the court decided, on the suggestion of counsel for the parties, to adjourn the trial in order to enable the appellant to undergo a further examination by two other doctors: Dr. Mengel, Superintendent of the Government Mental Hospital at Bat-Yam, and Dr. Feldman, Deputy Director of the Mental Hygiene Department of the Ministry of Health. After these examinations had taken place, the opinions of the latter two doctors were produced to the court, and the doctors were also examined in court on the contents of their reports. In their judgment, the judges noted that, from the formal point of view, Dr. Mengel appeared as an additional witness for the prosecution, whilst Dr. Feldman was summoned to give evidence as a witness called by the court.

 

            The unanimous opinion of all those doctors was that, at the time of the attack on Luba Kreiner, the appellant had been suffering from the disease of paranoia in a very advanced stage, and that immediately after he had fired at her the first or second shot, he had entered into a state of "trance" such that when he fired at the deceased Shifman, he was acting subconsciously, as stated.

 

            The learned judges accepted the first part of that opinion, namely, the part touching upon the nature of the disease of the mind from which the accused was suffering at the time he carried out the attack on Luba Kreiner, but they were not convinced that, after he had shot her, there was suddenly added to this disease the mental situation of a state of "trance". Counsel for the appellant argued before us that the judges erred in rejecting this latter version.

           

            According to the law of Israel (section 13 of the Criminal Code Ordinance. 1936) every man is presumed, until the contrary is proved, to be of sound mind at all times relevant to the matter in question. It follows that the burden of proof lies on the accused if he pleads that at the time of the criminal act with which he is charged, he was suffering from such disease of the mind that he ought not to be regarded as liable for that act. However, the burden of proof lying on him is no heavier than that imposed on a party in a civil case; in other words, he is not bound to prove more than that his version is the likely one (Sodeman v. R. (5); Khalil v. Attorney-General (1), at p. 33).

           

            In their judgment, the judges emphasized that they had considered those principles and had acted in accordance with them, and that nevertheless they had come to their conclusion in spite of the consensus of opinion prevailing among the expert witnesses. From a theoretical point of view there is indeed nothing in the law to prevent the court from arriving at such a result. In every criminal case in which the accused relies on a plea of insanity, two questions fall to be considered: -

           

(a) Was the accused at the time of the act suffering from a disease of the mind, and what was that disease ?

 

(b) Is it right to absolve him from criminal responsibility in consequence of his suffering from the mental disease at the time of the act ?

 

            The determination of each of those two questions is within the sole jurisdiction of the judges hearing the case (I am not dealing here with the power of the court of appeal to interfere with the findings of those judges). It is true that whenever the opinions of the expert doctors who have given evidence are identical as regards the factual questions concerning the defence of insanity, such as whether the accused was suffering from a mental disease, the kind of disease, whether he knew the nature of the act and that the act is prohibited, the court will be disposed to hold, generally speaking, in accordance with those opinions (see Khalil's case (l), and the case of R. v. Jefferson (6)). But there is no compulsion to do (see R. v. True (7), in which the jury brought in a verdict against the opinion of the four expert doctors who testified as to the nature of the mental disease from which the accused was suffering, and whose evidence was not contradicted). For example, if the court is convinced that the doctors have given their opinion on the basis of a mistaken appreciation of the facts surrounding the accused's act, or have disregarded certain factual details relevant to the case in question, it may be right in such cases not to take their opinion into account (see the observations of Goddard L.C.J., in R. v. Rivett (8)).

 

            Again I must emphasize that the fact of the accused's labouring under a grave mental defect at the time when the event, the subject of the charge, took place, so that "from the medical point of view" he is not to be regarded as responsible for his actions, does not always constitute a sufficient answer to the further question that the court must put to itself, namely, whether, by reason of that defect, one of the criteria laid down by law exempts the accused from punishment. This particular approach of the local law which is, in this respect, identical with that of the English law, is aptly demonstrated in the extreme language once used by McCardie J. in his charge to the jury in the above mentioned case of True (7):

           

            "Insanity from the medical point of view is one thing; insanity from the point of view of the criminal law is something different. Doctors exist for the purpose of healing physical and mental ills. Judges... exist for the purpose of protecting the life, property and peace of the community."

           

            This approach to the problem is of considerable importance in this case, for even if, as is admitted, the attack on Luba Kreiner, which also led eventually to the killing of Shifman, originated in the disease of paranoia from which the appellant suffered at the time and from which he is suffering to this day, nevertheless, if the judges were right in rejecting the doctors' version that he passed into a state of "trance" before he shot the deceased, neither of the criteria laid down by the legislator in section 14 of the Ordinance as being essential to the upholding of a plea of insanity is, as we shall see later, applicable to the appellant.

 

            In order properly to examine the grounds which led the judges to reject the version of a state of "trance" that the doctors had adopted, it is desirable that we should clarify for ourselves the nature of the disease of paranoia from which the accused suffered. For the sake of convenience only, I quote here the passage in which Dr. Angus MacNiven, a recognised British expert in this field, described the features of this disease in his article, Psychosis and Criminal Responsibility, published in the collection of essays, Mental Abnormality in Crime (edited by Radzinowicz and Turner, p. 8 et seq.). At p. 26, he writes:

           

            "Paranoia is a chronic mental illness which develops gradually over a long period. The delusions which are a characteristic symptom are well systematised. It is an essential characteristic of the illness that the memory and intellectual process are well preserved. The essential core of the personality is preserved. In many cases a study of the patient's life shows that his general attitude to others has been one of suspicion, and that he has always been ready to attribute enmity and hostility to those with whom he has been associated. Persons of this type often appear shy, timid and sensitive, but these outward characteristics often conceal an underlying feeling of self-importance and a desire to lead and to dominate. Sometimes one finds that the patient has an exaggerated idea of his own abilities, and that his failure through incompetence to realize his ambition appears to be the starting point of a delusional system, the purpose of which seems to be to explain and excuse his failure in life.

 

            Not infrequently a painful experience over which the patient has brooded until its true significance has been completely distorted, appears to have been the focus round which his morbid thoughts had developed... a failure...in business may initiate, in a predisposed person, a searching ruminative state of mind which gradually develops into a chronic delusional state.

 

            Although many paranoiacs are querulous, suspicious and aggressive, many maintain friendly relations with those with whom they are in contact, and even with persons whom they believe are taking part in their persecution...

           

            In these cases which form a majority, the illness is of gradual development, and there is usually a prodromal period during which the patient is uncertain about the truth of the delusional ideas which are slowly taking form in his mind. He is alert and suspicious. He feels that his suspicions are well founded, but he is willing to agree that the incidents which have aroused them, may be capable of an innocent interpretation.

           

            This ebb and flow process may last a long time, and even when the illness is fully developed, periods of acute mental tension during which the patient is entirely dominated by his delusions may alternate with periods in which the morbid ideas appear to be in abeyance. When conviction has replaced suspicion, the patient may be forced to act in accordance with his delusional ideas, what action he will take will depend upon the nature of his delusions and upon his general character...

           

            If he is by nature aggressive, his first protest may be an attack upon his aggressor. If he is timid he may decide to flee from his imaginary persecution, or he may, in a state of despair, commit suicide...

           

            For them (paranoiacs) the whole world is hostile and menacing, and every one is an active agent in their persecution. Everything they hear has a double meaning. Every action done by anyone in their presence is misinterpreted as an insult, or a symbolic assault. They are mocked and humiliated. Their characters are besmirched, and life for them is a continuous battle against tyranny and persecution.

           

            The paranoiac's persecutors may be a single individual but usually it is a body of persons...

           

            Offences against the person may arise from different motives. They may be the result of the patient's natural impulse to retaliate upon his persecutors and mete out to them the punishment he believes they deserve, or he may resort to crime from altruistic motives. He may believe he is benefiting his country or the world by killing a tyrant. He may commit his offence not out of ill-will towards the victim, but because he has failed to obtain redress for his injuries by constitutional means, and at last he comes to the conclusion that by committing a crime which will lead to his arrest or trial, he will have an opportunity of ventilating his grievances in Court. The offence may be premeditated and carefully planned, or it may arise out of the impulse of the moment.

           

            A man who believes that his wife is unfaithful to him, and outraged by her denials of his accusation, may strike her impulsively, or he may lie in wait for her paramour and kill him..."

           

            Another expert, who investigated 66 paranoiac cases (see the book, Forensic Psychiatry, by W.N. East, at p. 194), writes:

           

            "In these forms of insanity crimes of violence may be postponed for many years, in spite of the provocation to which the patients are subject as a result of their imaginary persecutions, if they retain their auto-critical faculty. These, however, may become so dominating that volition is ultimately dethroned. And the subjects of delusional insanity, particularly the persecutory and jealous cases, should be regarded as potential homicides always, and the more dangerous if they have tried legitimate means of defeating their enemies and rivals, believe their threats are unheeded, consider they are above the law and indicate by their words and actions that they are losing self control."

 

            In the light of those descriptions, which correspond precisely with what was contained in the opinions of the doctors who gave evidence in our case, I can summarise the principal features of the said disease as follows:

           

(a) This is a chronic disease that develops gradually and over a long period of time;

 

(b) The characteristic symptom of the disease is the existence of a series of delusions, concentrated on an erroneous central assumption;

 

(c) Subject thereto, the memory and reasoning faculties are preserved;

 

(d) The paranoiac develops within himself feelings of suspiciousness, persecution and enmity, towards those with whom he comes in contact, but that does not prevent friendly relations being maintained with his imaginary persecutors outwardly and over a long period of time;

 

(e) An exaggerated estimation of his capabilities on the one hand, and the lack of success in realising his ambitions or in becoming satisfactorily adjusted to life on the other, are likely to serve as the primary basis for the establishing of feelings of discrimination and persecution by others in the mind of a mentally deranged person of this kind;

 

(f) In the further development of the disease, the feeling is aroused within him that his whole universe is full of enemies and detractors, and so he is likely to interpret every action done by others as an attack on his interests. For him, his life takes on the nature of a lengthy and continuous struggle in relation to his persecutors, and even against tyranny and for the cause of justice in general;

 

(g) When the development of the illness reaches the "difficult" degree or "advanced stage", the paranoiac is likely to commit a serious crime, including homicide, because of the feeling that he is forced to act in accordance with his delusions;

 

(h) The crime may he committed according to a programme planned in advance, or it is possible that it will originate in a sudden, internal impulse, in both of which cases the criminal outburst will derive from the loss of control over the will or its weakening to a considerable extent (I shall return to this subject later).

 

            Anyone reviewing the appellant's life-story, and observing his reactions to the various events that have occurred therein, will become aware of the fact that those reactions coincide with the phenomena symptomatic of a paranoiac whose derangement has reached the stage of serious development. A precise analysis of the various stages in that development, based on the evidence of the appellant, of his relatives and workmates, as well as upon the many examinations of the appellant conducted by Dr. Mengel out of court, may be found in the written opinion presented by that doctor (exhibit P/15); but for the purpose of our discussion, I shall again content myself with the summary of these matters found in the judgment of the learned judges who write as follows:

           

            "The source of the accused's mental disorder appears to be an inheritance from his father, and his mode of life which was inducive to the development of the disease; the hard childhood of an orphan who grew up in the Diskin Orphanage in Jerusalem, and after that many years of military service as a supernumerary policeman and a soldier under difficult external conditions which prevented him from achieving rest and reward. From this soil sprouted psychopathic symptoms in the accused, nourished by inferiority complexes and expressing themselves in suspiciousness and feelings of deprivation in his relations with the world around him. Those feelings increased with the passage of time and turned into illusions of wrongdoing and persecution, in his private life, in his work relations in the Kordana plant where the accused worked from 1949, and afterwards in the Ata factory. The accused began to fight against his surroundings.

 

            While he was at the Kordana plant, the accused lost his temper, shouting and threatening the manager of the plant, Dr. Rakoshi, without any objective justification for his behaviour. The accused was then dismissed from his work, and only after great endeavours was returned to work in another place, in the spooling department in Kfar Ata. Here, too, he continued to have a constant feeling of being frustrated and persecuted, and lived in a world of his own which he filled with delusions and in accordance with which he interpreted whatever took place around him. To that must be added the fact of his relationship with Luba Kreiner. On this subject, there is a profound contradiction between the description given by the accused and the version of Luba Kreiner. She does not deny that friendly relations existed between her and the accused, whereas the accused attributes to those relations a much greater importance and contends that, at first, Luba Kreiner attracted him towards her, and afterwards, when he had already surrendered to her influence, threw him over and left him. It is impossible to decide whose description is the more correct, but there is no doubt that from the subjective point of view and in the structure of morbid thoughts in which the accused lived, this affair had a decisive effect on the development of his disease and upon the final outburst, on the day the tragedy took place. Even before that day, the accused's disorder had developed from a psychopathic condition into genuine paranoia and, as the accused's actions that very day testify, he must now be regarded as a danger to his surroundings."

 

            That description of the systematic delusions that have developed in the appellant's mind in the course of his life and which are characteristic of the disease of paranoia in the serious form in which he was suffering prior to carrying out the attack on Luba Kreiner proves, as everyone admits, that that illness ought to be regarded as the principal cause of the attack. However, it is no less certain that those same paranoiac disorders serve equally as an element in the further attack that he made on the deceased Shifman who, as a member of the workers' committee at the Ata factory, belonged to that same group of people which constituted the object of the delusions of frustration and persecution which took control of the appellant. If so, why were the abovementioned doctors unable to rest content with that explanation, and why did they find it necessary to explain the outburst against the deceased Shifman by the fact that the accused suddenly passed into a state of "trance" which means that the appellant was at that moment acting under a clouding of his consciousness, in fact, like an automaton ? There are, indeed, three grounds for this diagnosis of the doctors:

           

            First, they considered that the deceased Shifman - by reason of his being a member of the workers' committee at the factory - ought in particular to have been regarded by the appellant as his good and devoted friend, seeing that it was Shifman who had helped to have him taken back to work after the dismissal resulting from the quarrel that had broken out between him and the plant manager at Kordana; it was he who had assisted the appellant to obtain housing on easy terms and had even signed promissory notes for him in order to make the deal possible; it was he who had seen to it that the appellant would not be out of work when there was a shortage of raw materials at the factory.

 

            That ground did not recommend itself to the judges, in the light of the phenomenon, characteristic of a paranoiac, that in his mind even his best friends often become his enemies and detractors; and on the other hand, Shifman belonged to that same group of persons, the workers' committee, in whom the appellant saw his persecutors.

           

            That view of the judges is supported by the description of the disease of paranoia above quoted, but even Dr. Vinik testified that "a person may also concentrate his hatred on a person who takes an interest in him and assists him, such as a doctor, friend and so on" (p. 171 of the record). Dr. Feldman (p. 216) and Dr. Mengel (in his written opinion, p. 3), too, gave evidence in a similar vein. Moreover, a passage in the statement (P/8), which he made to the police the day after the event, in which he said, "Shifman ever since I have worked in that department, was all the time making trouble for me...", provides additional proof of the negative attitude of the appellant towards the deceased.

           

             Secondly, the doctors considered that the passages in the appellant's evidence (pp. 81, 110, 130), where he states that after he had fired the first shot at Luba Kreiner he became so confused that he did not know at the time what he was doing and after that did not remember how he behaved, ought to be believed. In this connection, they relied on their evaluation of what the appellant said to them when he was examined by them. Dr. Mengel, for example, said in his evidence:

           

            "As a psychiatrist, I believe in the facts he described to me and that he acted in an obvious state of clouding of the consciousness and did not know what he was doing" (pp. 213-214).

 

            Neither did this basis for the doctors' conclusion convince the judges, in the light of what the appellant said in his two statements to the police. In the first statement (P/3), he distinguished between Luba Kreiner and Shifman on the one hand (viz., those whom, according to him, he wanted to kill), and Dr. Weinrib, whom he did not intend to kill, on the other. In his second statement (P/8), he mentioned the worker Besser as one whom he also liked "just as I liked the late Shifman and he stood in front of me and I didn't do anything to him either".

 

            Regarding what the appellant said in his first statement, the judges note that, even assuming that he had heard from Nehemia Rosenberg, the official who was present when the appellant appeared at the office in the water-tower at Kiryat Binyamin and who said to him, "A pity about Shifman", and perhaps also from the other officials in the same office, that he had attacked the deceased and Dr. Weinrib, "it is odd that the accused showed no signs of surprise or agitation when he was suddenly informed that he had hit two more people". As for the remarks of the appellant in the second statement, the judges had difficulty in understanding how the appellant knew, the day after the event, about the fact (which was proved in the case) that when he fired at the deceased, the worker Besser was standing in front of him, if in fact the appellant was acting in a state of "trance" and under a clouding of the consciousness. After all, that is a state of mind which would make him particularly unlikely to remember what he did after he had fired at Luba Kreiner.

           

            That reason of the judges is strengthened by Dr. Vinik's statement (at p. 151) that a person who has fallen into a state of "trance" remembers, after he awakens, only "a few stray details of what he has done" during that time (see, too, the similar evidence of Dr. Mengel at p. 211). In his book, "Criminal Law" (p. 345), the learned Professor Glanville Williams goes further, remarking that only if "the accused has totally forgotten the mischievous act, there will be a tendency to say it was committed in a dream state".

           

            When the doctors were examined in court on the contents of their opinions, they discounted the appellant's remarks in his statements to the police, and counsel for the appellant has followed in their footsteps in his submissions to us. But it seems to me that there is considerable justification in the judges' approach when they say that the words spoken by the appellant the day after the event have a value that cannot be overlooked, to the extent that they provide us with evidence as to his memory of what happened after he had fired the first shots at Luba Kreiner, and therefore also evidence that, at that period of time, he had not fallen into a state of trance at all. In his profound research in the field with which we are concerned here, Mental Disorder and the Criminal Law, Professor Sheldon Glueck writes (at pp. 367, 368), that when one comes to apply, in relation to a paranoiac defendant pleading insanity in a criminal case, the tests whether he knew at the time of the act what he was doing or that his act is forbidden, then:

 

            "If a narrow interpretation of these tests is taken, then language or actions on the part of the defendant, prior to, during, or after the offence, which, to the layman, and considered apart from the whole medical and social history of the defendant, would indicate the existence of such knowledge, may be regarded as conclusive proof that normal knowledge actually existed at the time of the offence."

           

True, he adds that:

 

            "If the precaution is taken to explain to the jury that the knowledge of the paranoiac is necessarily colored by the patient's entire warped judgment and his intellectual and emotional absorption in his delusional beliefs, it is less likely that miscarriages of justice will occur."

           

            Admittedly, this addition is of no importance in relation to the question of the value of the statements of the accused after the criminal act as proof that he committed it at a time when he was fully conscious. It should also be noted that the judges' approach in this matter does not differ from that of the Court of Criminal Appeal in England in the case of Rivett (8), in which it relied on the remarks of the accused to his friend after the commission of the crime as proof that he knew, when committing it, what he was doing and that the act was forbidden (loc. cit. (8), pp. 94, 95).

           

            On the other hand, the statements made by the appellant to the doctors a long time after the incident in question, and on the basis of which they drew their inference that at the time he was in the grip of a state of "trance", requires cautious evaluation, in the light of the well-known phenomenon that people claiming that they cannot remember the wrongful act that they have committed, as it were, during a clouding of the consciousness, are often no more than pretending (see Dr. Vinik's evidence at p. 165). Also from this point of view, therefore, the judges' attitude in rejecting the second ground that served as a foundation for the doctors' conclusion receives cogent support.

 

            The third ground was that, at the time of the incident, the appellant fired, as Dr. Feldman says in his opinion (p. 3), "without rhyme or reason at whoever crossed his path". The judges countered that argument, at least insofar as the moment when the shots were fired at the deceased Shifman is concerned, by relying on the evidence of the worker Besser (at p. 79), that:

           

            "The accused ran in the direction of Shifman. His object was Shifman. The accused deliberately went over to Shifman, and Shifman did not happen to be in front of him."

           

            They also referred to the evidence that the accused did not continue to march like an automaton, but "turned round and continued to chase after Luba Kreiner while she was escaping and to fire at her in particular out of all the male and female workers that were still in the hall of the spooling department". That, continue the judges, "indicates the opposite of just running amok". They explain the shot fired at Weinrib by saying that that man, as distinct from Shifman, who threw himself flat on the floor when he heard the first shots fired at Miss Kreiner, appeared in the direction of the appellant "as an interrupting factor", indeed, they do not completely reject the possibility that at that stage the appellant's mind had already become a little clouded from the shots he had fired up to then and from the panic that had broken out around him. But the essence of the judges' reasoning is based, equally in relation to the third ground of the doctors' version, on the contents of the statements that the appellant made to the police, contradicting as they do the existence of a state of "trance" and complete loss of memory, as has been stated.

           

            The judges' reasons, here set out, seem to me to be sufficiently logical in themselves as to justify our refusing to interfere, as judges sitting in an appellate capacity, in their finding on this point. But even aside from that, I think that that finding may be supported on two additional grounds. First, the trance version hardly seems con­sistent with the disease of paranoia one of the characteristic symptoms of which is. as we have observed. that the power of the person Iabouring under it is generally preserved, and that. subject to his systematic delusions, his powers of reasoning are equally preserved. Whereas the state of trance is, according to Dr. Feldman (on p. 217), tantamount to "a collapse of the ego", in the case of the paranoiac (as Dr. MacNiven emphasizes), 'the essential core of the personality is preserved."

 

            Dr. Feldman admitted this obstacle to the trance version, when he says (ibid.):

           

"In this case, there is a certain difficulty, and that is that on the one hand you have a paranoiac, process, a thing that develops very slowly and is unlikely to affect the clarity of the consciousness, and on other hand, a state of trance, that is, a loss of consciousness for the limited time in which something happened that cannot be understood in the light of the assumption of a paranoiac set-up".

           

            Secondly - and this is the main point - the appellant's attack on the deceased Shifman can be explained by the disease of paranoia alone, not only because of the inclusion of that victim in the class of the appellant's imaginary persecutors, but also, following upon this phenomenon, because of the disease dominating him to the extent of depriving him of his will-power or of weakening it in considerable measure. We shall return later to that explanation, which was put forward by Dr. Mengel as a possible alternative.

           

            It follows, therefore, that neither of the two tests mentioned in sections 14 of the Ordinance, the existence of each of which suffices to absolve from criminal responsibility, existed here. Those two tests, as is well known, originate in the replies of the English judges in 1843 to some of the questions put to them by the House of Lords, in consequence of the case of Daniel M'Naghten (9), for the purpose of clarifying the rules in force in relation to the defence of insanity. It would be right, therefore, to interpret those tests in the light of the English judgments that expound the "M'Naghten Rules".

           

            The first test is whether, at the time of the doing of the act, the accused was incapable, by reason of the disease of the mind under which he was labouring at the time, of understanding what he was doing. The meaning of that test is that, if the accused did not know, at the time of the criminal act, the physical nature (as distinct from the moral nature) of that act - that is to say, in our case, that he is using a fatal instrument in such a way as to be likely, by that act, to kill someone - he is absolved from responsibility (see the case of Codere (10); see also Glanville Williams' above-mentioned book, at pp. 318-319).

 

            Having rejected the trance version, and taking into account the phenomenon that the paranoiac's reasoning faculties are unaffected (apart from the influence of his delusions), I must clearly hold that the appellant knew at the time of the act that he was firing at Shifman and that by means of that shot he was likely to cause his death.

           

            The second test is whether, at the time of the doing of the act, the accused was incapable, by reason of the mental disease, of knowing that he ought not to do the act. "Ought not", means ought not from the moral point of view. The standard of morality is not measured according to the peculiar outlook of the accused but according to the outlook of reasonable men. In other words, the standard in question is an objective one. If, for example, the accused knew at the time of the act that he was carrying out on action in contravention of the law, then he knew that he ought not and should not, from the moral point of view, carry it out (the Codere case (10)).

           

            Here, too, it is clear that once the trance version is rejected, the evidence does not show that at the time that he killed Shifman, the appellant did not know that his act was one that he ought not to do. The fact that he gave himself up to the police indicates the very opposite. Neither does the evidence of the appellant assist him. He testified (on p. 142) that, after he had given evidence to the police, he met Dr. Kelly, and in response to the latter's question, "If I were in your place, what would I deserve?", said to him: "Death". Again taking into account the symptom of the disease of paranoia that was mentioned last, it must be inferred from that answer that also at the time of committing the fatal act in question he knew of its improper nature from the moral point of view. As East said (at p. 204): The offender suffering from systematic delusions "often knows what he is doing and also that he is doing something that the law punishes". Dr. Vinik, too, testified (on p. 154) that when a paranoiac offender carries out a dangerous action "he may know that what he is doing is contrary to the laws of society".

 

                Counsel for the appellant submitted in the alternative that, if the trance version is not accepted, then the cause of the attack on Shifman ought to be found in the loss of control over his will-power, which in its turn originates in the paranoiac disorder. The judges rejected that argument, both from the factual and from the legal point of view.

           

            I shall deal first of all with the question of fact. I am of the opinion that in their attitude to this question, the learned judges were mistaken. Having discounted the explanation regarding the addition of the state of trance to the appellant's mental condition, they had no choice but to accept the same alternative explanation that Dr. Mengel regarded as a possible explanation of the appellant's outburst against the deceased, namely, that his paranoiac disorder dominated him to the extent of depriving him of his will-power or of weakening it to a considerable extent.

           

            (a) In this connection, Dr. Mengel wrote in his opinion (see p. 7 thereof ):

           

            "Another pathological situation was also within the realm of possibility, namely, that the deceased Shifman...could have provided the accused with an object for the expression of his paranoia, and fallen victim as one of his imagined foes; and also in the face of such an account ofthe circumstances, it would be clear that if so, the accused would have been acting not of his own free will, but underthe constraint of overpowering motives of disease over which he had lost his control".

 

And in his evidence in court, he said (on p. 212):

 

            "At times, the psychopath knows what he is doing, but he is powerless to gain control over the pressures of his sick impulses, because they are stronger than the forces of control. I cannot dismiss the possibility that that is what happened".

 

 

            Dr. Vinik also testifies (on p. 154):

 

            "A paranoiac gives expression to his illness at the same moment as the feeling of frustration and the fight for justice dominates him to the extent of depriving him of the will to wage open war against his consciousness...He can give effect to that by the most difficult acts and by the most dangerous means even to the extent of killing men".

 

            b) The remarks of MacNiven have already been quoted above to the effect that when the disease of paranoia has developed to the stage where conviction replaces suspiciousness, "the patient may be forced to act in accordance with his delusional ideas"; so also the remarks of East, that "the imaginary persecution... may become so dominating that volition is ultimately dethroned".

           

            To those two views must be added the remarks of Professor E.R. Keedy, in his article, "Insanity and Criminal Responsibility" (published in the Harvard Law Review, Vol. 30, p. 535, at 559), that:

           

            "In the persecutory stage of paranoia where the patient has a delusion that persons are trying to injure or annoy him, a homicidal impulse frequently develops".

           

            In order to illustrate his remarks, the learned Professor quotes the case of Daniel M'Naghten (9), a paranoiac who suffered from imaginary persecutions and was acquitted of the charge of murder on account of a plea of insanity, seeing that the medical evidence, as Keedy emphasizes, "was to the effect that at the time of the shooting he had no self-control" (ibid.).

           

            (c) The learned judges identified the plea of loss of self control with the plea of "irresistible impulse", and rejected it, from the point of view of fact, on the strength of one solitary reason, namely, that, when "Dr. Vinik was asked, in accordance with the well-known English test, whether in his opinion the accused would have acted the way he did even if a policeman were at his elbow... the answer was that it was difficult to determine that". Admittedly, the judges also bore in mind Dr. Vinik's reservation, that in his answer he was referring only to the first shot fired at Luba Kreiner, whereas as far as the shooting at the deceased Shifman was concerned, "the presence of a policeman would not have made any difference". However, they did not take that reservation into account, since it was based on the version of the "trance" and "amok" theory, and they had already rejected that version.

 

            In my opinion, that reason of the judges is not based on firm ground, since Dr. Vinik was not required to express an opinion, so far as the stage prior to the shooting of the deceased Shifman is concerned, whether that reservation still held good on the assumption that the trance version is untenable. If the question had been posed to him in the light of that assumption, I have no doubt that he would not have altered the content of his qualified reply. I infer that from the statement in his evidence, that:

           

"It may happen that such a patient might, at the time of an outburst, recognise, feel the domination of the destructive forces within him and feel that he is powerless to withstand them, and will warn the others not to come into contact with him and leave him alone and keep away from him. On the one hand, he is in control of himself when he warns and admonishes others, and on the other hand, he is not in control of himself as regards the action itself. Until the action, he can control himself, but at the time of the action he has already lost his balance and the power of control over his will" (p. 155).

 

            It follows from this evidence that that doctor would distinguish between the stage prior to the first shot at Luba Kreiner and the stage that preceded the shooting of the deceased Shifman, and would hold, even without any connection with the trance version, that immediately after he began to fire at the woman, and as a result of that action, the appellant lost his self-control.

           

            (d) The judges' decision on the facts on this point is mistaken from another point of view also. We saw earlier, when the features of paranoia were described, that a paranoiac may commit a criminal act as the result of a sudden internal impulse that he is powerless to resist, but that he may also carry it out with premeditation and in accordance with a programme worked out in advance. Now in the latter case, too, the paranoiac offender should be regarded as having acted the way he did for lack of choice; because the delusions so dominated him, that he could see no way out other than to act according to them. From that point of view, he committed the crime when in fact he was not master of his own free will.

 

            The matters that were noted in the Report of the English Royal Commission on Capital Punishment (1949-1953) may serve to clarify that approach. After criticising (at p. 110, paragraph 314) the use of the term "irresistible impulse" as "too narrow" and "misleading", in that it seems to refer only to cases where the commission of the crime by the person suffering from a mental disease originated in a sudden impulse that moved him to act thus, the Commission draws attention to types of mentally sick persons, among them paranoiacs, that did the wrongful act in accordance with a programme worked out by them in advance, "coolly and carefully". Now the Commission regards such types of patients, too, as persons whose mental disease has affected their will-power (paragraph 315), and it formulates a test the use of which is likely to result in the absolving of those "offenders" from criminal liability. The test is whether (paragraph 317):

           

            "at the time of committing the act, the accused as a result of disease of the mind... was incapable of preventing himself from committing it."

           

            Finally, the Commission quotes the case of an act of one Ley, whose behaviour testified to his being "a typical case of paranoia" and who, as a result of that disease, killed a man after he had planned the execution of the fatal plot for some considerable time. That man, it held, knew indeed the nature of the act and that it was forbidden, but it may nevertheless be argued that he was not capable of avoiding the realization of his criminal programme since he was incapable, on account of his delusions and the world of other false values in which he lived, of desiring, or of making an attempt, to avoid committing the crime - he was not capable of evaluating properly those moral considerations that have the effect of restraining a sane man (p. 111, paragraphs 319-320). Had he, accordingly, set up the defence of insanity, there would have been room, according to the said test, for absolving him from criminal liability. The Commission emphasises, however, that they might perhaps have come to the opposite conclusion by applying the well-known test of Lord Bramwell (which the judges in our case favoured), that if the insane person (who knew in fact what he was doing and that his act was forbidden) would not have "yielded to his insanity if a policeman had been at his elbow", he cannot be relieved of responsibility. According to that test, it held, only those defendants that have acted in a state of semi-consciousness, automatism and frenzy, will escape conviction. (In another part of the Report, note is made of the fact that in England, the latter test has in practice been abandoned for some time. p. 103; see also the criticism levelled at it by MacNiven, from a different point of view, in the above mentioned article, p. 53; and the disapproving remarks of Guttmacher and Weihofen on the same matter, in their book Psychiatry and the Law, p. 411).

 

            (e) The remarks of Dr. Mengel (on p. 213) may be understood in the light of this approach when he states that even if the appellant had contented himself with shooting Luba Kreiner in order to kill her, "then, too. he would have done what he did in consequence of a psychiatric condition, and would not have been in a condition to be able to control what he was doing". He arrived at the conclusion notwithstanding his assumption that the appellant "had determined to put an end to that woman" (loc. cit.). We know from the evidence of the appellant, that he had brought the revolver that he used on the day of the incident from his home - a fact indicating a prior planning of the fatal programme against Miss Kreiner - and we know also that Dr. Mengel had before him a copy of his evidence on which he based his conclusions (p. 209). This version of the doctor, namely, that in planning the attack on Miss Kreiner, the appellant was acting in a state of lack of self-control, can only be understood in the light of the explanation that his disease had brought him to the stage where he was incapable of acting otherwise than in accordance with the dictates of his sick delusions and the world of "justice" in which he lived, that he was incapable, even at the time of committing that act, of being influenced by ethical considerations that are calculated to restrain a sane man from committing it. By which I mean that he could not control himself even in the primary stage of the attacks that he made on the day of the incident.

           

            (f) The last quoted approach, too, is calculated to rebut the judges' attitude in relation to the question of fact that was argued. But in our case, I see no reason for calling that approach in aid. When one reads together the observations of Dr. Mengel and Dr. Vinik, which I considered in paragraphs (a) and (c) above, then there is only one conclusion to be drawn from them: that in any event, at the stage when the first shots were fired at Luba Kreiner, the effect of this act upon the appellant was added to his paranoiac state, so that at the same time, there were liberated "the pressures and the sick impulses that are stronger than the powers of control". as Dr. Mengel says, and he lost ''his balance and the power of control over his will", as Dr. Vinik words it (the third doctor, Dr. Feldman, confined himself to the trance version). The necessary conclusion is, therefore, that when he attacked the deceased Shifman and killed him, the appellant did so while in a state of lack of self-control, lack of ability to act according to his free will.

 

            So much for the question of fact. Were the judges right in the attitude they adopted as regards the question of law? If we consider this question from the point of view of the "M'Naghten Rules", and therefore from the point of view of the tests laid down in section 14 of the local Ordinance, we shall have no alternative but to accept their decision.

           

            1. Those who, in the countries in which the "M'Naghten Rules" apply, favour the view that in insanity cases it is proper to recognise the plea of "irresistible impulse", do so from three different points of departure. One school of thought holds that the common law includes a third test additional to those laid down by the rules, namely, that the accused will not be liable if it appears that in consequence of the disease of the mind under which he laboured, he was not in a position to control his behaviour. The reasoning behind this view is threefold. First, in their replies to the questions of the House of Lords, the judges did not intend at the time to present an exhaustive account of the law applying to the problem of insanity, and did not intend to exclude the possibility of the effect that the mental disease is liable to have on the volitional and emotional systems. For in the proviso to their statements in reply to the second and third questions - the reply containing the tests whether the accused of unsound mind knew what he was doing and that he ought not to do it - they added an important reservation, being that, when directing the jury to decide according to the above stated tests, the direction ought rightly to be accompanied with such observations and corrections as the circumstances of each case may require" (Stephen, "History of Criminal Law", Volume 2, p. 159; also Glueck, p. 180). Secondly, one of the fundamental elements of criminal law is that no accused person may be judged guilty unless the act, the subject of the offence with which he is charged, was specifically "voluntary", and so if he was labouring under a disease of the mind which prevented the existence of that element, then he is not liable (see Kenny, "Elements of Criminal Law", edited by Turner, at pp. 24, 80; also Keedy, in the aforementioned article, at p. 548). Thirdly, the common law does not constitute a system of law frozen in its tracks; rather it continues to develop in accordance with the experience of life and the teachings of medical science in general. Now that science teaches us that the "mind" of man is not divided into individual compartments unconnected one with the other, but is a singe unit, that is, a combination of reason with the systems of will and emotion, between which there is constant, mutual activity. Therefore, what appears on the surface as a partial impairment of the reason (as in the case of systematic delusions), is nothing but a symptom of the mental disease affecting the "mind" as a whole, including the will and the emotions. This phenomenon, whenever it exists, must be taken into consideration, and by reason thereof, the accused person of unsound mind is to be regarded as not responsible for his acts (see Glueck pp. 172-173, 265-266).

 

            As authority for the view that the common law embraces the above stated test, in addition to the M'Naghten tests, those in favour of this approach usually point to the judgments given: -

           

            (a) Before the giving of the judges' replies, in the cases of Hadfield (11), (Russell, Vol. 1, p. 49); Daniel M'Naghten (9), above referred to ; R. v. Oxford (12), (Glueck, p. 153) ;

           

            (b) Afterwards - in the cases of R. v. Hay (13); R. v. Fryer (14), and R. v. Holt (15). Counsel for the appellant relied on these last three judgments in the present case. In the case of Hay (13), Darling J. directed the jury to bring in a verdict of "guilty but insane" if they believed the medical evidence, which had established that the accused knew "he was firing a revolver, and that it was wrong to do so, but that owing to disease of the mind he was unable to control the homicidal impulse which dominated him".

           

            (c) The same test has been accepted by courts in some of the States of the United States (see A.L.R., Vol. 70, p. 663 et seq.). The leading judgment is that in Parsons v. State (28); see also Smith v. U.S. (29).

           

            (d) And in South Africa also (see South African Criminal Law and Procedure, by Gardiner and Landsdown, 5th ed., Vol. 1, p. 67).

           

            To my mind, it is quite clear that, within the framework of the local section 14, at all events, there is no room for adding as a third and independent test, the test of inability to control the will-power as a consequence of the disease of the mind. The reason is that, in laying down the rules mentioned in that section (and from the medical point of view, that indeed is the weak spot in them), the legislator put the emphasis on the impairment of the system of reasoning faculties, as distinct from the volitional and emotional systems. The test, as has been stated, is whether the accused by reason of his mental disorders, did not "understand" what he was doing or, alteratively, did not "know" that his act was forbidden. In criticising the "judges' replies" from the scientific point of view, Glueck writes (loc. cit., p. 172) that they do not take into consideration the fact that:

 

            "The cognitive mode of mental life can hardly be said to be disturbed without this also being an indication of the disturbed condition of the inseparable emotional-volitional life of the accused."

           

            That applies equally to the identical tests laid down in our section 14, and it follows therefrom that its language leaves no room, ex vi termini, for the addition of another test, namely, that which absolves from criminal liability on account of the injury inflicted by the mental disease on the will-power.

           

            In fact in the courts in England, the view has recently become crystallised that the "M'Naghten Rules" are exhaustive on the question of insanity, and it has accordingly been held in a number of cases there, that the law is not to be extended by the addition of a rule providing that the accused will be absolved from liability if driven to committing the offending act by an impulse originating in a disease of the mind (see, in this connection, R. v. Flavell (16);R. v. Kopsch (17); Sodeman v. R. (5); R. v. True (7), obiter).

 

            The judges in our case indeed placed their reliance on those English precedents. I shall return later to deal with the question whether in section 14 the local legislator intended to include provisions of an "exhaustive" character. What I mean to establish at this stage is only that, within the framework of those provisions, at all events, no room is left for applying any additional tests.

           

            2. The second school of thought that urges the taking into account of a mental disease affecting the accused's will-power, claims to remain within the limits of the M'Naghten Rules. Its point of departure is that, so long as the medical evidence points in that direction, it is proper to absolve a man from liability if the interval impulse that drove him to commit the crime and which originates in a disease of the mind was sufficiently powerful so as completely to destroy the ability to distinguish between right and wrong. In his book, Glueck writes (at p. 239):

 

            "In some of the States where the irresistible impulse rule does not obtain, some courts make a rather questionable concession to the principle, by saying that if the irresistible impulse is the result of mental disease sufficient to override reason and judgment, and to obliterate the sense of right and wrong, it will excuse from criminal responsibility. This doctrine seems to be the expression of a transition stage between the exclusive right-and-wrong rule rigidly applied, and the judicial recognition of the fact that there is more to mental activity than its cognitive mode, and that the law itself, when treating of criminal intent, considers volitional capacity as necessary as cognitive capacity."

           

            The American court established a rule in accordance with this "compromise" approach in State v. Nixon (30); and in the light thereof, Greer J. explained the purport of his remarks when, in his direction to the jury in the above mentioned case of Holt (15), he lent his authority to the test of "irresistible impulse". He meant (so he said afterwards in the case of True (7)), that "if a man's will power was destroyed by mental disease it might well be that the disease would so affect his mental powers as to destroy his power of knowing what he was doing, or of knowing that it was 'wrong'. In this event, 'uncontrollable impulse' would bring the case within the rule laid down in the M'Naghten case" (see R. v. True (7), at p. 167).

           

            Finally, it is possible to explain away the verdict of acquittal brought in by the jury in the case of Daniel M'Naghten (9), according to the same approach. It will be recalled that the learned Professor Keedy regarded that decision as authority for the existence of the test of "lack of self-control" as an independent test, in that - as he explained in his article (pp. 558, 559) - on the one hand there was no evidence that the accused could not distinguish between right and wrong and, on the other hand, it was proved that at the time of the criminal act, he was deprived of all self-control. If that view is right, there is indeed an inconsistency between the verdict of acquittal and the direction of Tindal C.J. who presided over that case, and who confined himself to the test of the ability to distinguish between right and wrong. In fact, if we closely examine the medical evidence, as summarised in the English Reports, at p. 718 (9), we find that it established no more than that a man labouring under a sick delusion might succeed in appreciating right and wrong, but that in the case of the accused M'Naghten, "it was a delusion which carried him away beyond the power of his own control, and left him no such perception". Such a finding, therefore, enables the inconsistency existing between the verdict of acquittal and the judge's direction to be cleared up, in that it connects the fact of the destruction of the will-power (by the mental disease) with the test of loss of ability to distinguish between right and wrong. That is the true meaning of the verdict of acquittal in that case, and it is perfectly consistent with the outlook of the second school of thought.

 

            This school of thought would take into consideration, therefore, the effect of the mental disease on the accused's will-power, but only to the extent that that influence has in itself resulted in the utter destruction of his ability to distinguish between right and wrong; and in that special way, claims to remain faithful to the M'Naghten Rules and not to exceed their limits. Indeed, whatever the value of that approach may be, in our case I find it impossible to draw any assistance from it, having upheld, on the facts, the judges' conclusion that the appellant knew, when he fired at Shifman, that his act was morally wrong.

           

            3. The third school of thought, too, is in favour of the general aim of remaining loyal to the M'Naghten Rules, but demands the granting of a "wide" or "liberal" interpretation to those rules. The doctrine is that a man, whose mental disease has impaired his willpower, is likely to be in a state of inability to weigh, in a rational manner, the significance of the act that he is about to do, whether it be a physical significance or a moral significance. It may be that in the "narrow" sense, he knows that the act will result in the killing of a man and that a prohibition of the law applies to it; yet nevertheless, because of the weakening of his volitional powers and the injury to his emotions, his reasoning faculties also fail him (in that state of "momentary anger"), to the extent that he is unable to appreciate properly the true nature of his criminal action or that it is prohibited. From the broad point of view, it cannot be said of such a man that he "understood" what he was doing or that he "knew" that his act was improper in the moral sense, and for that reason he does not bear responsibility according to the M'Naghten Rules either. The foundation-stone of that approach is once more the modern medical theory regarding the insoluble connection between the reasoning, volitional and emotional faculties of man, so that if one kind of faculty is impaired, it means that the other kinds are impaired also.

 

            Stephen, who favoured the test of lack of self-control originating in a mental disease as an independent test (the first school of thought), but was not certain whether it was included in the existing law (see History of the Criminal Law in England, Vol. II, p. 149, note l), also belongs to the third school of thought. He expounded his doctrine in these words (ibid., at p. 170):

           

            "The power of self-control must mean a power to attend to distant motives and general principles of conduct, and to connect them rationally with the particular act under consideration, and a disease of the brain which so weakens the sufferer's powers as to prevent him from attending or referring to such considerations, or from connecting the general theory with the particular fact, deprives him of the power of self-control.

           

            Can it be said that a person so situated knows that his act is wrong. I think not, for how does anyone know that any act is wrong except by comparing it with general rules of conduct which forbid it, and if he is unable to appreciate such rules, or to apply them to the particular case, how is he to know that what he proposes to do is wrong ?"

           

Again, at p. 171:

 

            "If the words 'know' and 'wrong' are construed as I should construe them . . . . . the absence of the power of self-control would involve an incapacity of knowing right from wrong."

 

Finally (ibid.):

 

            "Knowledge and power are the constituent elements of all voluntary action, and if either is seriously impaired the other is disabled. It is as true that a man who cannot control himself does not know the nature of his acts as that a man who does not know the nature of his acts is incapable of self-control."

           

            Stephen J. put this theory into practice in the spirit of that approach - a kind of "practise what you preach" - in his direction to the jury in the case of Reg. v. Davis (18); and many instances of its application may be observed today, too, particularly with regard to cases of paranoiacs and their systematic delusions (see "Criminal Law", Part 2, by P. Dickstein, at pp. 399, 400; also Glueck, at pp.366-367). Stephens explains the verdict of acquittal in Hadfield's case (11), mentioned above, in the light of that approach. The facts were: Hadfield Iaboured under a fancied notion that he had received an order from Heaven to sacrifice his life in order to save the world. Accordingly, he decided to shoot King George III during the latter's visit to the theatre, in order that he might afterwards be prosecuted in a criminal court for that act, convicted and sentenced to death. In the event he missed the target and was arrested. At the trial, he was defended by the famous lawyer Erskine, whose attractive arguments (which at the time marked an important turning-point in the rule of insanity in England) moved Kenyon C.J. to direct the jury to absolve the accused from responsibilty (see "History of the Criminal Law", etc., p. 59). Hadfield, says Stephen, did in fact know the nature of the act - that he was firing a loaded revolver at the King. Moreover he knew of the prohibition imposed by the law; in fact it was that very knowledge that led him to effect his plan of which - or so he anticipated and even desired - the immediate result would be his conviction under the law of treason and his execution. But, Stephen goes on to hold, "I could not say that such a person knew that such an act was wrong. His delusion would prevent anything like an act of calm judgment in the character of the act" (ibid., p. 167).

           

            The fact is that many of those who are opposed to an amendment of the M'Naghten Rules by adding the test of "irresistible impulse" place their reliance on the same view, that the existing tests can take the "wide or liberal" interpretation of Stephen. For example, in the debate that took place in the House of Lords on a Bill drafted in the spirit of such amendment (following on the recommendation of the Committee of Experts presided over by Lord Atkin), Lord Haldane explained his opposition to the Bill in these words:

 

            "I have never heard of these rules embarrassing any judge who really had a case before him in which justice required an acquittal or prevented him from giving such direction to a jury as would enable them to apply these rules in cases.... when the impulse was so dominant as to deprive a person of freedom or of any realisation of what he was doing."

                        (This is quoted from East's book, at pp. 67-68,)

           

            Can this somewhat attractive view afford us any assistance when we come to interpret the language of the legislator in section 14 of the local Ordinance ? I have given serious consideration to this possibility, for applying such a free interpretation of the rules provided in that section would certainly deliver us from the network of difficulty in which the present appeal has enmeshed us. I say "network of difficulty" since, on the one hand, there can be no doubt that the appellant, at the time when he shot the deceased, was suffering from a mental disorder which had already reached very serious proportions, to the point of depriving him of his will-power; it was that disorder which provided the cause and the reason for that act; and justice and common sense would require that we relieve him of responsibility for it. On the other hand, it has been found that he understood what he was doing and he knew the prohibition of the law. The approach last mentioned is attractive because by bestowing a "wide" or "liberal" interpretation on the words "to understand" and "to know" in section 14, we could relieve the appellant from punishment within the framework of the tests laid down in that section.

           

            However, I cannot see that the way is open to us to call that particular solution in aid. For if we interpret the terms "to understand" and "to know" in section 14 in the sense of "properly appreciating" or "weighing quietly and in a rational manner", we shall only confer on them a far-fetched and artificial interpretation, in place of the simple meaning that the words convey. If the appellant knew at the time of the act that he was aiming a loaded revolver at the deceased and that by pressing on the trigger a bullet would escape which was likely to hit the victim and to kill him, then he "understood", in the language of ordinary man, the physical nature of his act. If he knew at the same time that he deserved punishment for his behaviour, then he "knew" - again, in the language of ordinary men - that it is improper from the general moral point of view. It is a different matter altogether to say that, in consequence of the impairing of the volitional and emotional system, by the disease of the mind, the appellant passed into a state of "momentary anger" in which he was deprived of the ability to appreciate properly or to weigh in a quiet and rational manner the extreme significance of his lethal behaviour or its far-reaching effects. And it is a different thing entirely to hold, as the Royal Commission held in relation to the case of Ley, that the systematic delusions of a paranoiac are so likely to dominate him as to render his mind no longer open to counter-persuasion and he will, for that reason, lose the capacity to refrain from carrying out the criminal plan dictated to him by the delusions. But, neither of these constitutes the tests that the legislator provided in section 14, in which the emphasis was placed on the element of absence of "knowledge" in its ordinary meaning. From that "narrow" point of view, the disease of paranoia, as we have seen, does not produce an absence of knowledge in the man who is suffering from it.

 

            I have analysed at some length each of the three opinions referred to in order to answer the question whether, in our case, the argument of lack of self-control caused by a disease of the mind can be included within the framework of the rules laid down in section 14. The upshot of this analysis is that, from the point of view of those rules the negative answer of the learned judges to the question is well-founded.

           

            But, having reached that last conclusion, the complex matter in which we are engaged has not, to my mind, been solved. The question still remains at the forefront of our attention: whether the tests stated in section 14 in fact serve as complete and exhaustive tests, or whether there is room in our criminal law for applying the principle, of which the foundation is laid in section 11 subsection (1) of the Ordinance, which provides as follows:

           

            "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

 

            I emphasise the words "act or omission which occurs independently of the exercise of his will", and the question I pose is this: whether, in the light of the requirement proceeding therefrom – "the requirement of the exercise of the will in committing the criminal action" - it would not be right to assert that the local law envisages the use, as regards the defence of insanity, of a test distinct and separate from those provided in section 14, namely, the test of inability to control the will-power originating in the mental disease of the accused.

 

            Now, this question renders it necessary to return first of all to another, similar question, one we have already hinted at, namely, whether there is not in first something in the assertion of the "first school of thought", that we can scarcely suppose that on the problem of insanity, the common law would not also recognise the last mentioned test, and not give it the authority of an independent, self-supporting test and, that being so, the M'Naghten Rules cannot be regarded, on any account, as being complete and exhaustive in this field? It seems to me that, in this instance, we would be best advised to act as we have acted in the past whenever we have sought to solve other problems concerning criminal law, namely, by having recourse first of all to the fundamental approach of the common law to the problem with which we are engaged, seeing that that law, as this court has declared from time to time, constitutes the source from which the legislator drew in enacting the provisions of the local Ordinance.

           

            It will surely be asked : how is a fresh examination possible, in this country, of the question whether the common law regards with favour the plea of "irresistible impulse", where the accused is relying on the defence of insanity, when that question has already been given an authoritative answer in the negative by the English courts in judgments in which it has recently been considered - judgments such as Flavell (16), Kopsch (17), and Sodeman (5) (vide supra). I am not of that opinion, if only for the reason (and at this stage, I confine myself to that reason alone) that in England today, in life and in first, that negative answer does not correspond to actual practice, in the vast majority of cases. By that I mean that there exists ample evidence that in recent years English courts of first instance have succeeded in giving effect to the argument, so long as there is sufficient ground for doing so in the body of evidence. Even in those few exceptional cases where the plea had been proved, yet for all that rejected, the court occasionally drops a hint as to the possibility of commuting the sentence of the convicted man (see, for example, True's case (7), at p. 170). Even without such a suggestion, the Home Secretary in England in cases of that kind and after all the trials at the various instances have been completed, would usually carry out a fresh medical examination (something that the law empowers him to do), and if the results of that examination were to justify it, would also recommend that the extreme penalty be not exacted. So, for example, Lord Atkin asserted in a lecture that he gave in 1925 to the Medico-Legal Society:

 

            "The illustration of the law is very much more generally liberal than would be the case if it were carried out in strict accordance with the letter. In practice, the judge, the counsel, the jury, the witnesses and all concerned are desirous, in case of uncontrollable impulse, to acquit the accused on the ground of insanity." (Quoted from "The Modern Approach, etc.", at p. 416.)

           

            Moreover, in 1953, the Royal Commission, in the Report mentioned above, after reviewing the evidence placed before it on the question of the actual application of the M'Naghten Rules as exhaustive rules, held that:

           

"The broad conclusion... from this evidence is that,...in cases where their strict application would result in a manifestly unjust verdict they may be 'stretched' or even ignored, and that nevertheless cases do occur – though no doubt rarely - in which the effect of applying the Rules is that sentence of death has to be pronounced on a prisoner whom it would be clearly wrong to regard as responsible for his act. This does not mean that anyone who is certifiable as insane would ever be executed. It was generally accepted by our witnesses that the safeguard of the statutory medical inquiry after conviction ensured that no one who was definitely insane would now be executed."

(p. 85.)

 

            Having regard to that shaky and not very firm standing enjoyed today in England by the aforementioned "negative" rule -a kind of "rule that nobody teaches"1) or at all events, that "nobody observes" - I am of opinion that those judgments in which that rule was laid down need not prevent us from investigating afresh, as if it were a prima impressionis, whether the fundamental approach of the common law to the defence of insanity requires us to turn a favourable ear to the plea of irresistible impulse above referred to.

 

            Accordingly, let us open that investigation.

           

            A. The common law looks at the problem of insanity in two ways: it is basically an ethical-legal approach. Its ethical assumption, and that even in days gone by, is that if, when he committed a wrongful act, a man was labouring under disorders of the mind in such a way as to make it unreasonable to hold him responsible, it would not be right to convict him, still less to inflict punishment on him. Thus, as early as the reign of King Edward I (1272-1307), this approach could be perceived in the repeated recommendation of the jury, when they were satisfied that the accused was mad when committing the act, that he be pardoned; and at the beginning of the fourteenth century, after the granting of a pardon, as a consequence of recommendation on that ground, had become a matter of course, the plea of "lunacy" in murder cases acquired the status of a defence as of right, absolving the accused altogether from criminal liability (see Holdsworth, "History of English Law”, Vol. 3, pp. 312-316; also, Stephen, Vol. 2, p. 151). At the beginning of the seventeenth century, Coke gave pungent expression to that ethical notion, when he wrote (Institutes, Part III): "Furiosus solo furore punitur". That that was not a mere notion, detached from the outlook of his generation, appears from the words that Shakespeare put into the mouth of the hero of his play:

           

"... Hamlet is of the faction that is wronged; his madness is poor Hamlet's enemy".

           

            That special approach, originating in a sense of justice and fairness, has remained applicable in England, so far as the question of insanity in criminal law is concerned to this day; and a straight line may be drawn between Coke's epigram I have cited and the account of the same principle by the Royal Commission in 1953. So, the assumption of the Commission as to "the continuance of the [said] ancient and humane principle that has long formed part of our common law" is of importance (Report, p. 98).

           

            If we pause here for a moment and examine the question before us from the standpoint of that fundamental principle, namely that it is a problem of justice and morality which accounts for the person of unsound mind being absolved from responsibility, for otherwise punishing him for his criminal act is like punishing him for his madness, against which our sense of justice revolts, then it would be difficult, if not impossible, to reject the defence of inability to control the will-power and to withstand an internal impulse, when it has been proved that the existence of that mental state is accounted for by a disorder from which the accused was suffering at the time of the act. In his article, "The Royal Commission and the Defence of Insanity" (Current Legal Problems, 1954, p. 18), Glanville Williams writes :

           

            "...it is generally felt to be unjust (or inhumane) to punish one whose powers of control are seriously weakened by mental disease. An insane person, said Maudsley, has the right to claim the privilege of his disease, and the compassion which attaches to affliction in civilised lands."

           

            Guttmacher and Weihofen also note (in their above-mentioned book, p. 412), that:

           

            "Justice does not call for retribution from one who did not act from choice. On this premise, irresistible im­pulse should be accepted as a defense, for there is no justice in punishing a person for what he could not help."

           

            True it is that, while it was concentrating on the ethical aspect of the problem, the common law directed its attention (and in the time of Coke and his predecessors, it was natural that it should so do) only to the object of "retribution", and, as it were, ignored another penal object, deterrence. The first object - that the sense of justice should be satisfied - excludes the approach that the sinner shall not profit thereby" 1) from application to the insane offender; on the contrary, the sense of justice demands, as we have seen, that the insane offender in particular should not be punished. But, does a result such as that coincide with the social aim of the protection of life and property through the threat of the law to punish all who break it? Does not the object of "that others may hear and fear", therefore, require that we should reject the defence of "irresistible impulse" no less in the case where it originates in a disease of the mind? This argument indeed, being bound up with the principle of deterrence as a fundamental aim of the criminal law, served as a guide, in the second half of the previous century, to certain individual English judges in their rejection of that defence. So, for instance, in the case of Reg. v. Haynes (19), Bramwell B. said, in his direction to the jury:

 

            "But if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it... But if the influence itself be held a legal excuse rendering the crime dispunishable, you at once withdraw a most powerful restraint - that, forbidding and punishing its perpetration." (Quoted from the collection "Cases on Criminal Law", edited by Turner and Armitage, pp. 64, 65.)

           

            I do not think that argument can survive examination. The principle of "deterrence" or "restraint of the law", when serving as an end of the criminal law, has two sides to it. One is that the man about to carry out some vile crime is likely to hold back on recalling to mind the threat of the law to punish him heavily if he puts his plan into action. The other side of it is that the fact of the offender's being punished is liable to serve as an example and a warning to others. These two aspects together are no more than two sides of the same coin: the desire to restrain the committing of offences. Those who criticise the aforementioned argument for rejecting the plea of "sick impulse" must take into account both those aspects of the principle of deterrence, and their reply to those protagonists of the admonitory character of the criminal law as a foundation for that negative approach must, therefore, be a double one. Indeed, such a reply, that knocks the ground from under the "objectors", was once more given by Guttmacher and Weihofen, when they said (ibid.):

           

            "An individual who labors under irresistible impulse cannot be deterred and so there is no purpose in holding him criminally responsible."

           

            And at p. 413:

           

            "Nor is the punishment of such a person very valuable as an example to others. The average man is not exposed to increased inner temptation at seeing a person go unpunished who could not... avoid his act. On the contrary, punishing such a person is likely to be repugnant to the average man's sense of fairness and justice."

           

            These last words restore us to the healthy approach of the common law, which, in its relation to the insane offender, prefers the human aspect to the object of deterrence. Indeed, the fact that the convict Haynes (19) was in the end pardoned by the king (see Turner and Armitage's Collection, at p. 65), rather weakens, from the functional point of view of the criminal law, the argument about "the restraint of the law", used by Bramwell B. in the above mentioned case. Finally, even if we assume (I, for one, do not share that view) that one cannot be entirely certain that the threat of the criminal law might not succeed, in a certain case of "sick impulse", in influencing behaviour, even then the conclusive consideration is bound to be the one tied up with the sense of justice which all feel, and not in the consideration that perhaps the fear of punishment may, for all that, have the effect of turning the scales, in the thoughts of the person labouring under such an impulse, in favour of deterrence and restraint. Even Glanville Williams, who is party to the view concerning the possible influence of the criminal law even in the case of ''sick impulse", agrees that that should not constitute a decisive consideration. "In practice", he writes in his above mentioned article (ibid.),

           

"criminal punishment is not governed exclusively by the deterrent theory; the deterrent theory is modified by a notion of justice; some value is attached to the personality of the killer... Even those lawyers who think that insane impulse should not be a legal defence now generally concede the propriety of executive intervention to avert punishment."

 

            B. So much for any answer to the present question, in the light of the ethical side to the approach of the common law to the defence of insanity. The other aspect - the legal one - is: the accused, who was suffering from a disease of the mind at the time of committing the criminal act, will not be punishable simply because his disorder had the effect of negativing the existence of a criminal mind or "mens rea", the element that the criminal law has postulated in regard to the vast majority of serious offences. This way of dealing with the problem - which is bound up with positive criminal law - was once more indicated at the time by Coke, when he laid down (vide his Institutes, supra, ibid.):

 

            "...For in criminal causes, as felonie, etc., the act and wrong of a madman shall not be imputed to him, for that in those causes, actus non facit reum, nisi mens sit rea, and he is amens... sine menti, without his mind or discretion."

           

            This view, too, that exemption from liability on account of a mental disorder is like exemption by reason of the absence of a criminal mind, has remained to this day in England a corner-stone of the institution of insanity on the criminal side, as the judgment in the case of Felstead v. R. (20) testifies. Explaining there the true meaning of the verdict "guilty but insane", Lord Reading states, at p. 542:

           

            "That is not a verdict (holding) that the accused was guilty of the offence charged, but that he was guilty of the act charged as an offence... this verdict means that, upon the facts proved, the jury would have found him guilty of the offence had it not been established to their satisfaction that he was at the time not responsible for his actions, and therefore could not have acted with a 'felonious' or 'malicious' mind, which is an essential element of the crime charged against him."

 

He adds:

 

            "The indictment of the appellant was for 'feloniously' and 'maliciously' wounding (the victim) with intent to do some grievous bodily harm. It is obvious that if he was insane at the time of committing the act he could not have had a mens rea, and his state of mind could not then have been that which is involved in the use of the term 'feloniously' or 'maliciously', for 'crimen non contrahitur, nisi voluntas nocendi intercedat'."

           

            We learn there from that the common law, on the strength of the principle of "mens rea" which it championed, made the accused's conviction dependent upon the fact that his mental faculties were working properly at the time of the act; accordingly, whenever a mental disease has impaired those faculties to the extent that one of the elements of that principle is absent, the upshot ought to be exemption from criminal liability. Indeed, in the case of Ya'acobovitz v. Attorney-General (1), at p. 545, I noted that:

           

            "The concept of "mens rea" as an element required in every offence originating in the common law, demands that the prosecution prove at least these two things : (1) that the accused voluntarily carried out the action which is the subject of the charge; (2) that at the time of the act, he foresaw the possibility that the result which the law prohibits might spring from that conduct of his."

 

            In that case, indeed, much was said concerning the second element - foreseeing the forbidden result - whereas here, the case calls for the placing of emphasis on the first element, volition.

           

            (1) In my judgment (ibid (1), at p. 545), I added these words:

           

"Intention' means that at the time of the act, a person not only foresaw what was to come but also desired it... It is necessary to prove criminal intent as regards most offences, that is to say, in addition to a voluntary action, anticipation accompanied also by a desire to cause the outcome which is forbidden."

           

            "Criminal intent", therefore, constitutes a more complex notion than "criminal mind" in its aforementioned meaning, in that "volition" plays a part in it (the criminal intent) even as regards the injurious result and not only as regards the immediate action that served as the means for causing that result. We are accustomed to saying that A '"intended" to do a certain act, whereas, assuming that that act does not constitute by itself the object of the legal prohibition with which we are concerned, we will not attribute to that man a "criminal intent", if he did not have in mind, as the final aim "desired" by him, the injury that will flow from his act and which the criminal law is designed to prevent. If A, holding a loaded revolver in his hand, waves it in the direction of B only in order to frighten him, and a bullet happens to fly out and causes the latter's death, we will not attribute to A a "lethal intent". in that he did not "intend" such a result, that is to say, did not wish it. But on the other hand, it is true that where a volition exists regarding the injurious outcome, there in any event exists a volition in respect of the means by which it is obtained ( Salmond, Jurisprudence, tenth edition, p. 380) - whence the saying: "He who wills the end wills the means".

 

            In our case, in order to commit the felony of murder, of which we are asked by counsel for the respondent to convict the appellant, there is required, inter alia, a "lethal intent" (see section 216(a) of the Ordinance), that is to say, a volition regarding the fatal result, and of necessity also a volition regarding the action likely to lead of itself to the same result; in other words, a "criminal intent". The lighter offence of manslaughter, however, of which the appellant was convicted by the District Court, is satisfied, in addition to the foreseeing of the anticipated danger to the life of the victim or to the soundness of his body, by the existence of a volition only as regards the criminal action. Accordingly, "volition" relating to the criminal action constitutes an element common to both those offences. But for the purposes of the trial of the restricted question before us at this stage, there is no point in separating the two aspects of volition. It will be recalled that the question is whether the defence of insanity is available to a person criminally charged either with murder or with manslaughter, where it has been proved that in fact, on the one hand, he was aware of the fatal result likely to flow from the act that he was about to do, whereas, on the other hand, he lacks volition, in that the mental disease that afflicted him has released powerful forces lying dormant within him and has forced him to act in the way he has acted. The facts hypothesised in order to establish that question mean, therefore, that the element of volition is absent "all along the line", both as regards the result and as regards the action, in that in consequence of the mental disorder, the accused has been deprived of the capacity of avoiding the act that was to enable the realisation of that aim. Thus, as we established earlier, those facts are identical with facts in our case. It follows that hereafter we shall concentrate on the "voluntary element" of mens rea, without separating the two aspects of this element, as stated.

 

            (2) Even if the phrase "the foreseeing of the prohibited outcome", in place of the expressions "knowledge", "understanding","capacity to understand", and the like, is a relatively modern phrase in use for describing the intellectual element that the notion "mens rea" entails, the fact is that the need for the presence of the "voluntary" element, in its plain meaning, has been referred to over and over again in English legal literature throughout many generations. In the middle of the seventeenth century, Hale wrote ("Pleas of the Crown", Vol. 1, pp. 13-15):

 

            "Man is naturally endowed with these two faculties, understanding and liberty of will... The consent of the will is that which renders human actions either commendable or culpable... Where there is no will to commit an offense, there can be no transgression, or just reason to incur the penalty or sanction of that law instituted for the punishment of crimes or offenses."

 

            Blackstone, who wrote in the latter half of the eighteenth century, also referred to the same principle of volition ("Commentaries", Vol. 4, Chapter 2); so, too, Stephen, more than a hundred years later ("History of the Criminal Law of England", Vol. 2, p. 97), and even Holmes, at about the same time (in his book "The Common Law", p. 54). In our times, Turner stated it (see Kenny, "Elements of Criminal Law" edited by him, p. 24) in these words:

           

            "In cases in which a man is able to show that his conduct, whether in the form of action or of inaction, was involuntary, he must not be held liable for any harmful result produced by it."

           

            Those authorities suffice to show that we are not speaking of a single or chance ruling, but of a principle that has become a firm foundation of the common law and which started back in early days (the idea of voluntas nocendi is mentioned as early as the writings of Bracton, who wrote in the thirteenth century; vide Keedy's above mentioned article, at p. 548, note 43). If in England, therefore, the rule of insanity on the criminal side has become crystallised through a neglect of the voluntary element, that phenomenon should be regarded as a serious departure from the system that struck roots in that branch of the law a long time ago and which has continued in it till this day.

           

            (3) What is meant by "the voluntary element"? First of all, it is important to note that when they talked of "volition", common lawyers were referring, in the main, to the process in which a person exercises a "choice" between alternative objectives. and therefore also a "choice" between alternative lines of conduct. Their basic approach, again a completely ethical approach, apparent also from the remarks of Hale which I have mentioned, was that every normal man is endowed with a "free will", and is able, therefore, to choose between right and wrong, between conduct that is proper from the moral point of view and conduct that the criminal law (giving expression to the rules of morality) looks upon with disfavour. So they called an offender the man who was faced with the choice of doing "as one should", and yet went and misbehaved and did wrong; in the language of Maimonides (Hilchot Teshuva, Chapter 5, Halacha "A"):

 

            "The right is given to every man: if he wishes to follow the good path and to be righteous, he is free to do so; and if he desires to follow the path of evil, and to be wicked, he is free to do so".

 

Professor Roscoe Pound once wrote (quoted by Glueck, p. 111):

 

            "Our traditional criminal law thinks of the offender as a free moral agent who, having before him the choice whether to do right or wrong, intentionally chose to do wrong”

           

            According to that viewpoint, "will" means, not just will, but free will, and "volition" means, not only a muscular movement, but an action preceded by free choice. "Willed movement", comments Perkins (in his article, "Rationale of Mens Rea", 52 H.L.R., on p. 912), "always has a voluntary element and hence the phrase voluntary act' is merely tautological as so applied." There is perhaps no need to state, that experts in psychology also recognise today the function fulfilled by "choice" as regards the process of volition (see the book "Psychology", by Harvey A. Carr, at p. 314). But, while English lawyers in the past placed the emphasis on that factor, those engaged in research in the above-mentioned field today also take into account the "striving or conative tendency" working in any case within every person and frequently aiming at giving relief to the emotions. In his book, Glueck writes (p. 114):

           

"The striving or conation... is of the very essence of mental life, and continues constantly. The volition is merely a more strongly felt striving, as the result of judgment or choice between alternatives; in other words, the volition necessarily implies the entering of conscious intelligence into the compound mental experience.”

 

            Thus, that mode of thought of giving preference to the action of an utterly intellectual faculty, or "choice", in the process of volition, is what led astray the shapers of the rule of insanity on the criminal side in England, as will become clear later in this judgment.

           

            Secondly, a distinction should be drawn between an "unwilled" action and an action carried out as the consequence of compulsion, that is to say, between the contention that mens rea is lacking by reason of the absence of volition, and the defence of constraint or duress. When a particular person threatens to injure the life or property of another if the latter does not commit a criminal act, the possibility of "choosing" is indeed restricted, but it does exist within certain limits. If the man to whom the threat is directed yields and commits the act demanded of him, it means that he has acted "of his own free will", since even if that criminal act is not "desired" by him, even less desirable to him - at least so he considered - is the loss of his life or property; so he chose to follow a line of conduct that led to the outcome less objectionable to him (see Stephen, pp. 101-102). Accordingly, it is understandable why the defence of necessity was limited in its application to a limited number of cases - those where the threat is of injury to life or limb, as distinct, for example, from the threat of injury to property (see section 17 of the Criminal Code Ordinance). On the other hand, however, it is equally clear that nothing in that same restricted approach adopted by criminal law to the problem of necessity, hints at a narrowing of the principle of mens rea in the sense of the voluntary element therein, a principle that logically requires exemption from liability in every case that is unaccompanied by the element of ''choice" or "free volition" of the act, the subject of the offence charged.

           

Thirdly, the fact is that in the past, in order to illustrate an action that was "not voluntary" and was for that reason bereft of any criminal character, some of the English authors and judges were content to quote an example of the kind where the hand, arm or body of another person is used as the instrument by means of which the injurious result was caused. Take for example, Hale, who wrote in his work (Vol. 1, p. 343):

 

"If A by force takes arm of B and the weapon in his hand, and therewith stabs C, whereof he dies, this is murder in A, but B is not guilty."

           

            As early as 1842, in the case of Reg. v. Pitts (21), the English judge explains to the jury that "A man may throw himself into a river under such circumstances as to render it not a voluntary act; by reason of force, applied... to the body..."

           

            It is in fact very doubtful whether it is possible in cases of that kind to attribute even the criminal act to a person whose body, or part thereof, has served as an instrument in the hands of another, and whether the question of volition arises there at all. But it is very likely that the start of the "voluntary element" is to be found in a case concerned with facts of that kind (an example similar to that quoted by Hale was cited as early as 1550 in the case of Reniger v. Fogossa (22); see Keedy's article (loc. cit.), and vide Russell on Crime, tenth edition, p. 29). Nevertheless, such words of illustration ought not to be regarded as indicating a tendency to restrict the rule of exemption from liability by reason of the absence of volition only to that class of cases in which physical force exerted by another constituted the cause of the criminal act; for a person will equally be exempt if his criminal action was not accompanied by will as a consequence of his being stricken with a particular mental condition that is quite unrelated to external physical influence. In other words. there is no justification (and this equally applies to the provision to be found in section 11 of the local Ordinance) for limiting the generality of the "voluntary" principle, as it has developed in England in the course of time and the meaning of which, as Stephen stated, is that "no involuntary action . . . amounts to crime" (Vol. 2, p. 100). "I do not know indeed", he goes on to comment, "that it has ever been suggested that a person who in his sleep sets fire to a house or caused the death of another would be guilty of arson or murder".

           

            Only a few months ago, in the case of Reg. v. Charlson (23), a man was acquitted in England of a charge of causing grievous bodily harm to his son and maliciously wounding him, in view of the medical evidence which raised the possibility that he was suffering from a cerebral tumour, and as consequence of that condition was acting, at the time of the deed, as an automaton without self-control, even though he did not raise the defence of insanity at his trial. After dealing with the standard of mens rea required for each of the offences contained in the indictment, Barry J., in his address to the jury, cited the example of the man who, while in the throes of an epileptic fit causes another's death. That man, as he said, would not be punishable since he was acting as an automaton without any control or knowledge of the act which he was committing" (ibid., at p. 862). In likening such a case to the matter being tried before him, the judge arrived at the following summary:

 

            "The question is whether the accused knew what he was doing when he struck the blows. If he did not know...if his actions were purely automatic and his mind had no control over the movement of his limbs, if he was in the same position as a person in an epileptic fit then no responsibility rests on him at all..." (Ibid. p. 864 (23).)

 

            See also the remarks of Professor Jerome Hall in his book, "General Principles of Criminal Law", p. 388:

           

"...movements in the course of an epileptic seizure no more constitute volitional conduct than does slipping on an icy walk..."

           

            Fourthly, the cases last mentioned, namely, where a person commits a criminal act in his sleep or during an epileptic fit, are truly cases in which that person was acting without cognisance or consciousness. That indeed is the fact that determines that there is a lack of self-control, seeing that volition involves the presence of cognisance or consciousness. A person who extends his hand without sensing that he is doing so is not making a voluntary movement-he lacks consciousness. All criminal behaviour, according to Glueck (p. 98), entails:

           

            "...the exercise of the capacity for conscious, purposive, and therefore voluntary action."

           

                        "Free volition", he says (pp. 104-5), means:

           

            "The capacity to express, partially inhibit and consciously guide the innate tendencies to purposive action."

           

            Again (at p. 107):

 

            "The state of mind includes the consciously controlled striving tendency which we call volition."

           

            However, the opposite is not true, that is to say: the absence of volition does not necessarily involve the non-presence of cognisance or consciousness. Those who claim that the defence of insanity extends to "a sick impulse that is irresistible", wholly assume, as we have seen, that the accused was fully conscious, and even aware of the injurious result liable to flow from his future conduct, yet nevertheless was unable to avoid it because, at the time of the act, he was not in control of his will-power. "Where there is consciousness”, notes Glanville Williams (in his book, p. 13), "a party is capable of 'acting' even though he is subject to an uncontrollable impulse. An act presupposes will, but not 'free' will." As stated, the body of evidence in our case indicated an identical factual situation. Accordingly, from the stand-point of the principle of mens rea, in the sense of the voluntary element involved therein - from the standpoint of the system of the common law on the criminal side - there exists no logical reason, as distinct from practical considerations that perhaps demand a different conclusion, for not absolving from responsibility even in cases of that kind. That, too, was propounded by Professor Glueck when he stated (p. 117):

           

            "...According to the theory of criminal law, an impulse shown to have been irresistible is just as destructive of the intention and volition necessary to constitute the mental element of a criminal act, as unconsciousness of the act, or mistake of fact."

 

            That indeed is the consistent approach of Somerville J., in the case of Parsons v. State (28), which is, as stated, the leading case in the United States, and in which the argument of "sick impulse" was accepted. After noting that there are two basic elements necessary before there can be legal liability for any offence: (a) the ability of the mind to draw distinctions and (b) freedom of the will, the judge added :

 

            "If, therefore, it be true, as matter of fact, that the disease of insanity, can, in its action on the human brain through a shattered nervous organization, or in any other mode, so affect the mind as to subvert the freedom of the will and thereby destroy the power of the victim to choose between the right and wrong, although he perceive it – by which we mean the power of volition to adhere in action to the right and abstain from the wrong - is such a one criminally responsible for an act done under the influence of such controlling disease? We clearly think not..."

           

            Fifthly, I do not overlook the fact that, among those engaged in research in jurisprudence, there exist two views regarding the place to be allotted to the voluntary element in criminal conduct. One view says that "volition" constitutes an element belonging to the "act", or, as Salmond says, act means "any event which is subject to the control of the human will"; accordingy "volition" constitutes one of the basic elements of the actus reus - meaning that, without volition, we will not attribute even the offending act to the accused (see Professor Jackson's article in the book, "The Modern Approach etc.", at p. 270 et seq.). On the other hand, the other view says that volition, being a mental element, belongs to the principle of mens rea, for otherwise, as Glanville Williams states (vide his book, p. 14), we should render the legal distinction between "act" and "state of mind" empty of all content. Wigmore, too, is party to this view (Evidence, second edition, Vol. 1, section 242), when he holds that "the specific will to act, i.e. the volition exer­cised with conscious reference to whatever knowledge the actor has on the subject of the act" constitutes "the distinct element in criminal intent".

           

            Although I am inclined to the latter view, I do not attribute great importance for the purposes of the present case to this difference of opinion.

           

            (1) Even the protagonists of the "act theory" - the first view - do not deny that, as regards volition, we are referring to an obvious mental element the existence of which is requisite for the completion of the offence, and so if the finding of that element is negatived by a mental disease, there can be no justification for regarding the person possessed of such a disease as punishable.

           

            (2) This requirement of the criminal law has been specifically laid down following on the development of the doctrine of mens rea and under its influence.

            In that matter, Turner commented (in Russell, pp. 29-30):

           

"This requirement (that his actions must have been voluntary) was a natural development from the original conception of mens rea, for it is not easy to detect wickedness where ...a man's mind and will are not directed to what he is doing; it would therefore not seem improper to employ the expression 'mens rea' to describe the particular element in criminal liability which must be proved against the accused person."

           

            And the question of insanity, with which we are dealing, also fits in with the traditional approach of the common law towards "mens rea".

           

            I am in a position, therefore, to sum up my remarks at this stage in this way: From the standpoint of the legal aspect by which the common law observed the defence of insanity, this matter is to be regarded as pertaining to the question of the existence of "mens rea"; that fundamental principle has always necessitated the presence of volition in the accused at the time of the criminal act; the fact that this element was, through the influence of serious mental disorders to which he was at the time subjected, absent, suffices logically to justify his relief from punishment.

           

            C. As stated, the English rule of insanity did not succeed in developing in the spirit of the previous conclusion. The lawyers who had a hand in the shaping of it, would lay down from time to time, as the test by which to determine the existence of a mental disturbance sufficient to absolve from responsibility, only formulate expressly referring to an impairment of the reason and the understanding, as distinct from an impairment of the will and the emotions. Take each of the tests prevailing at any given time on this problem and you will find that this and no other was the way the question was treated. This applies, for example, to the distinction once made by Hale between "utter" madness, which relieves from punishment, and "partial" madness, which does not so relieve, and to the essence of the test which provided for the discovery of madness of the first kind, namely, a standard of understanding below that of a healthy youth of the age of 14. The same emphasis on defect of the reason characterises that test that Bracton mentioned long before, and which was adopted in 1724 by Tracy J., in the case of R. v. Arnold (24), namely, that a person will not be regarded as punishable who "do not know what he is doing, no more than... a brute, or a wild beast"

           

 (quoted in the collection of judgments, "Criminal Law Cases", by Michael and Wechsler, p. 809). It applies to the well-known formula of Hawkins, who wrote at the end of the eighteenth century - the formula of "a natural disability of distinguishing between good and evil" (Pleas of the Crown, sixth edition, Vol. 1, section l), which in 1812, became, in Lord Mansfield C. J.'s direction to the jury in the case of Bellingham (25), a test of the absence of ability to distinguish between right and wrong. "If a man were deprived", he says :

 

"of all power of reasoning, so as not to be able to distinguish whether it was right or wrong to commit the most wicked transaction, he could not certainly do an act against the law. Such a man, so destitute of all power of judgment, could have no intention at all" (quoted in the above mentioned collection, p. 808).

           

            Erskine, too, who in securing the acquittal of his client Hadfield, succeeded in disproving Hale's distinction and saw in a sick delusion "the true character of insanity", took pains to point out in particular the impairment of the reasoning system. Even the conclusions of persons suffering from delusions are sometimes "sound and reasonable", he said, but "the premises from which they reason, when within the range of malady, are... false" (Russell, Vol. 1, p. 49).

           

            Such is the kernel (I have no intention of making an exhaustive historical analysis) of the idea along the lines of which the rule of insanity ultimately took shape in the form of the famous M'Naghten Rules, in which, too, the emphasis was placed, as stated, on the disturbance of the system of cognitive senses, as distinct from the disturbance to the volitional and emotional systems.

           

            It is very evident that those rules, like the tests and formulas that preceded them, contain one weak point important to our case, namely, the formulists' assumption that man lives in fact by his reason alone, that is to say, that that element in his personality alone guides his behaviour and directs it; whereas we know today, insofar as the psychological theory of our times teaches us so, that man's 'ego' constitutes a unit combining the systems of the reason, the will and the emotions, without any possibility of separating them, and that in the mental process, both the systems last mentioned accordingly fulfil functions no less - and perhaps even more – important and powerful than those that the cognitive senses fulfil. However, in order to elucidate my remarks, it seems advisable, at this juncture, to quote a little of the criticism that has been levelled at the M'Naghten tests, in the light of the findings of the psychological-psychiatric science of modern times.

 

            In a highly significant judgment delivered about a year and a half ago by the Federal Court of Appeals in the District of Columbia of the United States, in the case of Durham v. U.S.A. (31), Bazelon J. said, at pp. 16-17:

           

            "The science of psychiatry now recognises that a man is an integrated personality and that reason, which is only one element in that personality, is not the sole determinant of his conduct. The right-wrong test, which considers knowledge or reason alone, is therefore an inadequate guide to mental responsibility for criminal behaviour...

 

            Nine years ago we said: 'The modern science of psychology ...does not conceive that there is a separate little man in the top of one's head called reason whose function it is to guide another unruly little man called instinct, emotion, or impulse in the way he should go'."

           

            In that decision, a passage was quoted from the strong language employed by Professor Glueck in reference to the same matter, and in which he gave the M'Naghten tests the name of "knowledge tests". These are his words:

           

      "It is evident that the knowledge tests unscientifically abstract out of the mental makeup but one phase or element of mental life, the cognitive, which, in this era of dynamic psychology, is beginning to be regarded as not the most important factor in conduct and its disorders. In brief, these tests proceed upon the following questionable assumption of an outworn era in psychiatry; (1) that lack of knowledge of the 'nature or quality' of an act (assuming the meaning of such terms to be clear), or incapacity to know right from wrong, is the sole or even the most important symptom of mental disorder; (2) that such knowledge is the sole instigator and guide of conduct, or at least the most important element therein, and consequently should be the sole criterion of responsibility when insanity is involved..."

 

            Finally, in the Report of the Royal Commission which I have already mentioned, it is noted (p. 113, s. 324):

           

            "The gravamen of the charge against the M'Naghten Rules is that they are not in harmony with modern medical science, which is reluctant to divide the mind into separate compartments - the intellect, the emotions and the will - but looks at it as a whole and considers that insanity distorts and impairs the actions of the mind as a whole. The existing Rules, which so patently divorce the reason from other mental functions, are peculiarly open to this objection, and it would manifestly be lessened by the addition we have suggested."

 

            That criticism suffices to reveal to us the real reason why in their endeavour to define the rules touching the question of insanity, common lawyers ignored the voluntary element implied in "mens rea" - an oversight that is almost without precedent in the other problems of the English criminal law. The truth is that they did not pretend in any way whatsoever to disown the actual need for this element in the body of the offence, but under the influence of the misleading notions prevalent in the world of medical science of their time, they were possessed of the idea that, in the realm in which the mental process in a man exists, the government is entirely in the hands of the reason, and that the will and the emotions serve only as "satellites" of the former, and are subordinate to its rule. Nowadays, as stated, there is a disposition to think otherwise, namely, that those three systems, between which a constant mutual activity is going on, constitute a combined unit that is not capable (save for purposes of analysis and explanation) of separation or division, and that it is very likely that it is just the will and the emotions that occupy the important place in the mental side of life, whilst the "ability to understand", "consciousness", "knowledge" and the like are no more than auxiliary instruments made available to the other systems (Glueck, p. 251).

           

            So we have seen that when the consciousness is impaired to such an extent that a person does not know (or only half-knows) what he is doing, and also when his ability to distinguish right from wrong is impaired, the power of free will is in any event weakened to a considerable extent if not extinguished entirely; and so, insofar as the various formulators of the tests regarded one of these conditions as justifying exemption from criminal liability, then by the same token they were in fact taking into consideration the requirement that the criminal action be accompanied by the voluntary element, Wherefore there is no cause for quarrelling with the words of Hale when he says:

 

"And because the liberty of choice of the will presupposed an act of understanding to know the thing or action chosen by the will, it follows that where there is a total defect of the understanding, there is no free act of the will in the choice of things or actions."

 

            However, when he concluded that only the negativing of the totality of the power of reason justifies the removal of liability, in that only in the existence of a situation of that sort is there evidence of the absence of volition, he was mistaken, just as afterwards the judges in the replies in the case of M'Naghten (9) were mistaken when they contended that only the lack of ability to understand what is going on or the incapacity for knowing that the conduct is prohibited suffices to negative the presence of volition and by reason thereof to relieve from punishment. It follows that the formulists necessarily ignored the voluntary element in "mens rea" in relation to the case where volition is absent, despite the non-impairment of the systems of reason and understanding in one of the meanings formerly mentioned. This, then, is the explanation for what is lacking both in the M'Naghten tests and in those that preceded them and paved the way for the crystallizing of the English rule of insanity in its present form. (For the view that the methods known as faculty psychology and phrenology, which are nowadays out-dated and outmoded, were observable at the time in the drafting of the M'Naghten Rules, see Guttmacher and Weihofen, p. 418).

           

            So now that the ground has been removed from under the medical findings that served as the assumption and the foundation on which the settling of the present rules was based, and the weakness which we have pointed out in them has been made apparent, there remains no logical reason to prevent us from turning to the traditional method of the common law in the matter of insanity, from either of its points of view; that is to say, there exists today no logical reason restraining us from recognising the test that enables exemption from criminal liability in circumstances where the accused performed his deed in a state of lack of self-control in consequence of the mental disease that afflicted him at the time. For it is on this that the common law "prides itself" (so it is repeatedly declared in every generation), that it never rests on its laurels, but knows in every age how to take into account the ever-developing and everchanging facts of life, and the development of science in general (see Kaufman v. Marginess (2), at pp. 1032-1033).

 

            D. Do there exist any other considerations calling for a different conclusion. This is the occasion for reconsidering the judgments that were delivered in the cases of Kopsch (17), FIavelI (16), and Sodeman (5), and to which reference was made in an earlier part of this judgment; perhaps the judges in those cases had in mind considerations such as these when they rejected the defence of "sick impulse". In point of fact in the actual words employed in setting out the reasons for their negative conclusion, nothing is mentioned in express or specific language, not by so much as a word, that might suggest a consideration of the kind stated. In the case of Kopsch (17), Hewart L.C.J. contented himself with expressing his disapproval of "the fantastic theory of uncontrollable impulse which, if it were to become part of our criminal law, would be merely subversive". As to why in fact things would so turn out, the learned Chief Justice was silent and gave no explanation. In FlaveII's case (16), Sankey J. refused to adopt the argument that the M'Naghten Rules were alterable "in the light of modern medical opinion", only because it had been dearly laid down that those Rules are exhaustive of the law applicable on this question. Finally, in the case of Sodeman (5), an appeal to the Privy Council on a judgment given by the Supreme Court of Australia, Lord Hailsham was unwilling to depart from the rulings laid down in Kopsch (17) and FIavelI (16), for otherwise "the effect will be that different standards of law will prevail in England and in the Dominions."

           

            Nevertheless, it is quite certain that the negative approach on the part of the judges in England to the plea of "sick impulse" was nourished in the past on the consideration that it is impossible, or at least exceedingly difficult, to distinguish between an impulse that a person labouring under a disease of the mind is incapable of resisting (an irresistible impulse) and one that he simply avoids resisting (an unresisted impulse). That consideration was also bound up with the fear lest the "judges of fact", being laymen, might easily be led astray by a defence camouflaged under the name of "sick impulse", instead of appreciating that the real motive for the criminal outburst is referable to anger, a will to revenge, enhanced sexual lust and such-like distractions. Outward evidence of the great weight attributed to these latter considerations may be found in the remarks of Lord Hewart made in the House of Lords some year-and-a-half before he delivered the judgment in the case of Kopsch (17), and in which he gave his reasons for opposing the aforementioned recommendation of the Atkin Committee. The following are his observations, presumably reflecting, in equal measure, the ground of objection of the ten judges, of whom he declared on that occasion that they partook of the same view:

 

            "In practice if this new limb were to be added to the alternatives in the rules in McNaghten's case it would be impossible to distinguish between the impulse of the person said to be suffering from mental disease, and the impulse of the ordinary offender who is moved to commit a crime for the desire for gain or revenge" (quoted in East's book, p. 67).

 

In a similar spirit Lord Cave voiced his objection to that recommendation:

 

"I am seriously afraid that the last result may be that in many cases crimes caused either by sexual passion or by anger and vengeance which today meet with just punishment, may escape punishment altogether" (ibid., p. 68).

 

            I think that those considerations, today and in the State of Israel, are of little or no value whatsoever.

           

            (l) An impulse that cannot be overcome, and caused by a disease of the mind, constitutes a phenomenon the existence of which is undoubted by the professional psychiatrists of our time (vide Glanville Williams' book, p. 342; also Keedy's article, p. 550); the present case (along with other cases) proves that. For that reason, no court of any kind can with impunity adopt an attitude of refusing to distinguish between conduct, the cause of which lies in an impulse of this sort, and a plain angry, vengeful or sexual outburst.

           

            (2) Neither should it on any account be thought to be beyond the capacity of a court properly to distinguish between the two, in view of the progress of medical science in this field, and the existing facility with which its knowledge and assistance in this connection may be made available, by means of expert and experienced psychiatrists, to the professional judges, to whom in Israel the task of investigating the genuiness of a plea of sick impulse is entrusted. The judges in our case, for example, were so assisted, and in the course of the trial, sufficient opportunity was given for the carrying out of a satisfactory examination of the appellant (Dr. Mengel examined him no less than 28 times), and for the presentation of an expert opinion, the contents of which were, as has already been stated, most thorough and comprehensive. Moreover, if it is contended that the present case is exceptional, an account of its obvious circumstances, whereas in the majority of cases, the court is likely to encounter diagnostic difficulties liable to confound every endeavour an its part to appreciate the true nature of the impulse in question, then I must, in reply, refer to the considered opinion of the Royal Commission (Report, p. 109, section 313), that:

           

"We do not think it would be impossible, though no doubt it might often be very difficult. Nor do we believe that recognition of the irresistible impulse would be likely to lead to unjustifiable verdicts of insanity in cases of crimes prompted by anger… or sexual passion, provided that it was always made clear to the jury that they must be satisfied not only that there was an irresistible impulse but that the impulse was due to disease of the mind."

           

            (3) Experience abroad teaches us that in the past, the plea of sick impulse has provided an accused, who had "nothing more concrete to rely on", with an excuse or pretence only in cases where the offence with which he is charged involves the death penalty (Guttmacher and Weihofen, p. 414). Now that that punishment has been abolished in Israel in regard to the offense of murder, it seems reasonable to assume that the danger of "camouflaging" has decreased to a considerable extent. Furthermore, I attach great importance to the conclusion once expressed by Cardozo J. as to the fruits of the experience of several of the States of the United States in which the test of sick impulse has been adopted, namely:

           

            "I am not aware that the administration of their criminal law has suffered as a consequence" (Selected Writings, p. 387).

 

            (4) I do not deny that from time to time, "border-line" cases are liable to come before the court, and that in such cases, it may well have difficulty in arriving at the true nature of the impulse or motive occasioning the criminal outburst; indeed, in such cases, it is bound to tread most warily before deciding on its final diagnosis. However, this difficulty involved in the task of judging does not justify (as a local authoress recently commented) "the application of the same, harsh law" to the offender "who deliberately chose to follow the pursuits of his heart", and the sick person, who perpetrated his offence "on account of an impulse that gained complete control over him" ("The Criminal of Unsound Mind", by M. Ben-Porat, "Law and Cases" for 1955, No. 17, p. 7). In other words, the admission of the possible existence of complications and stumbling-blocks in the path of making the factual diagnosis is one thing; the recognition of the existence of a legal rule exempting from criminal responsibility by reason of "sick impulse" is another.

           

            Nor should it be forgotten that the phenomenon of "borderline" cases is not a special feature of the present problem of the criminal law, for it has forever been the habit of that law to draw lines, every one of which is indeed clear and definite by itself, whilst the question whether certain conduct falls on one side or other of the line is not always amenable to easy solution.

           

            (5) I have not overlooked the observations of my learned col­league, Goitein J., when he stated in his judgment in Attorney-General v. Sepal (4), at p. 414, as follows:

           

"By concealing the unconquerable urge under cover of the subjective test, we are injecting the doctrine of the irresistible impulse into the law... If that doctrine is suitable for us, it is for the Israel legislator to enact an express law in connection therewith."

           

            However, I think that my colleague was not referring to the impulse of which the cause of its gaining control lies in a disease of the mind, for in the remarks following thereon, he does not deal with that kind of impulse (see for example, paragraphs 10-11 of his judgment), and that kind, moreover, was not under consideration in that appeal. Indeed, in that connection, I need do no more than draw attention to the words of the Royal Commission, that:

 

"No responsible person has ever proposed the recognition of irresistible impulse except in conjunction with insanity or mental disease. The general consensus of psychiatric opinion does not regard an aggressive psychopath or a sadist - and still less a person who is merely hot-tempered or sexually unrestrained - as suffering from insanity or mental disease.... ." (ibid. pp. 109-10).

 

            The subjection of the aforementioned test to that reservation, namely, that it only concerns the impulse flowing from a disease of the mind, must of necessity, therefore, result in the removal (or in the considerable reduction) of the fears of abuse of the plea of "irresistible impulse", and as stated, there is no connection between that test, as subject to the said reservation, and the observations of Goitein J. in the Segal appeal (4).

           

            (6) Finally, it would be convenient to mention also at this juncture the words of the Supreme Court in the time of the Mandate, that "the defence of 'uncontrollable impulse' in insanity cases is one not known to English law, and the only test is that as stated and laid down in M'Naghten's case" (Khalil v. Attorney-General (1)). Now, even if I assume, as I am inclined to think, that by those remarks the court was intending to suggest that the local law followed English law, nevertheless, it is quite evident to me that no greater weight ought to be attached to those remarks than to an obiter dictum not necessary to the actual decision. For in the event, the court decided in that appeal to recognise the defence of insanity on which the appellant had relied, for the appellate court found on the basis of the medical evidence, that in the case of that appellant the test of "inability to distinguish between right and wrong" had been satisfied. (ibid., p. 92).

           

            So we perceive that even the "practical" approach to the problem before us does not suffice to justify, in a suitable case, not using the "volitional' test in regard to a defence of the kind in question. On that ground, in addition to the ground concerning its lack of consistency in the day-to-day life of the law, the rule laid down in English case law cannot serve as a guide for us; whilst the "opposite" view expressed, in the wake of that ruling, in the local judgment remains as I have said, an obiter dictum.

 

            E. So ends the investigation I have conducted into the English rule applying to the problem in question. In the course of that inquiry, we have given our attention to: (l) the ethical-moral aspect of the common law on the defence of insanity; (2) the principle of "mens rea", in use in that legal system in this field also, while at the same time emphasising the voluntary element contained therein; (3) the findings of modern medical science relative to our case; (4) the "practical' considerations on which those who reject the plea relating to sick impulse have placed their reliance. We undertook that inquiry with but one object in view: in order that we may be able to answer the question whether the provision in Section 11(1) of the Criminal Code Ordinance justifies, and even requires, the employment in a suitable case, as regards the said defence, of the volitional test, or whether the use of that test is impermissible because the test embodied in section 14 are the only ones applicable. The conclusion which necessarily follows from the analysis that we have made in each of the four stages of our investigation is, that the local criminal law does indeed justify and require, by virtue of the said provision in section 11(1), the removal of the criminal liability from an accused in relation to whom it has been proved that, at the time of the act, he was prevented from controlling his will-power by reason of the disease of the mind under which he was labouring at the time.

           

            But that conclusion cannot yet be final, and our labours will not be complete, unless we call attention to certain provisions in the local legislation, which may possibly reveal signs or hints pointing in the direction of a different, opposite conclusion. I have in mind the first provision in section 4 of the Criminal Code Ordinance; the one contained in the proviso to section 14; and the text of section 54(1) of the Criminal Procedure (Trial upon Information) Ordinance.

           

            Section 4 of the Criminal Code Ordinance: I need not advert to the second provision in this section, since in our case we are not concerned with the construing of a term or terms, mention of which is made in the body of that Ordinance, as was the case, for example, in the appeal of Segal (4). As has been suggested, however. the first provision, referring us to "the principles of legal interpretation obtaining in England", is important for us. To the group of words in quotation-marks I attribute the meaning that, when we come to construe what is written in any one of the sections of the Ordinance, we are bound to take into consideration the same principles that an English court would apply, when trying to interpret the intention behind the written law that it is dealing with. Now, as is well known, one of the principles of interpretation is that whenever there exists a contradiction between two provisions belonging to one written law, then if the application of the one provision is limited to a special group of matters - a kind of lex specialis - whilst the other provision is general and relates to all the material constituting the subject matter of the law - a kind of lex generalis-then the latter is rejected in favour of the former; that is to say, preference is given, to the extent to which the particular matter mentioned therein is concerned, to the special provision, and the general provision is interpreted as referring to the other matters to which it may suitably be applied.

 

            The pertinence of that principle to our case might possibly be this : since the exemption from criminal liability on account of mental disease is mentioned only in section 14, and even the heading, "insanity", appears in the margin of that section alone, then it is in the nature of a ''lex specialis", designed to apply to the kind of cases in which the accused seeks an acquittal on account of the mental disorder that affected his behaviour, whereas section 11(1), which embodies the voluntary element of "mens rea", does not expressly mention either "mental disease" or 'insanity", or (aside from the exception coming at the beginning) any other special matter. In a situation such as that, must we not take the view, when speaking of a plea of madness based on a mental disease, that the "general" provision in section 11(1) is rejected in favour of the "special" provisions in section 14, and is it not essential, therefore, to regard the latter as exhaustive and all-embracing ?

           

            Secondly, the second part of section 14 read

           

"But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission."

 

            The question is whether that language does not also reveal a tendency to confer a meaning of "exclusiveness" on the tests set out in the first part of that section.

           

            Thirdly, in subsection (l) of section 54 of the Criminal Procedure (Trial upon Information) Ordinance, in which the form of the verdict of "guilty but insane" is laid down, the legislator directed that that is the form to be used if it appears to the court that at the time when he perpetrated the criminal act, the accused was, by reason of the disease of the mind then affecting him, "incapable of understanding what he was doing or of knowing that he ought not to have done the act, etc." This provision was enacted some three years after the enactment of the Criminal Code Ordinance, including section 14 thereof (Official Gazette 964, dated November 23, 1939, p. 115); and so the question necessarily arises whether there may not be in the subsequent provision some evidence of an approach on the part of the legislator (which would, of course, be entirely consistent and unambigous), namely, that only if there is present in the accused one of the conditions mentioned in the two laws together, will there be room for recognising the defence of insanity which he has set up, whilst the provision in section 11(1) aforesaid is entirely foreign to that defence and is inapplicable to it.

           

            I have considered most carefully each of these three possible "objections", and my final opinion is that there is nothing in any of them, nor in their "combined effect", which can unfavourably affect the conclusion I had come to before I took them into consideration. I shall set out the reasons that led me to dismiss them.

           

            The first "objection": I respect the principle of interpretation mentioned above. But the present case is hardly a suitable one for its application. First of all, the principle that a special provision takes precedence over a general provision is taken into consideration, as stated, only when there exists between the two a contradiction that cannot be settled in any way, so that the application of the general provision would of necessity mean the total exclusion of the special provision. But, if there is no complete contradiction between the provisions in question, and there is no need to hold that the legislator disclosed a lack of consistency in relation thereto, the court is bound to aim, as far as is possible, towards giving effect to all parts of the law under consideration (see the authorities collected in Craies, fifth edition, pp.205-206). Thus the recognition, on the basis of the provision in section 11(1). of the pertinence of the above mentioned "volitional" test to the defence of insanity creates no inconsistency whatsoever between that provision and the provisions contained in section 14, in the first part, in that here we are speaking of a test supplementary to the ones provided in that section, and therefore of the addition of a test that stands in no contradiction whatsoever to the other two.

 

            Secondly, I do not think that in enacting the first provision in the mid section 4, the legislator intended at the time that the court here should accord to the principles by which the written laws in England are customarily construed, a greater value than that accorded them by the courts of that country; and everyone knows that the character of those principles (as distinct from "the general rules of law", that are more strict) is elastic, and their task, at the very most, is to create a "presumption" in favour of a certain meaning in the event of the language of the provision under consideration being ambiguous and capable of more than one interpretation (Craies, p. 8). In other words, those principles are designed only as guides to enable us to understand what is inferential, but they cannot override, or deflect us from, the clear and express language of the provision of a law. (ibid.) Thus, the drafting employed by the legislator in section 11, subsection (1) (in which he insisted on the presence of the voluntary element in "mens rea" by the side of the criminal act, with the reservation that this requirement does not apply to the provisions relating to negligent acts or omissions alone) is so clear and express as to make it hard to imagine that he intended to place a further restriction on the application of that "voluntary" requirement or to negative its importance as regards the case where the defence of madness is based on the extinguishing of the free will as a result of a disease of the mind. In other words, the "broadness" of the principle of volition emerging from what is said in the aforementioned subsection, on the one hand, and the exception introduced by the legislator to the application of that principle, on the other, suffice, when taken together, to explain away the non-reference to the terms "mental disease" and "insanity", either in section 11 itself or in its marginal note.

 

            The second "objection": In my opinion, the provision contained in the proviso to section 14 is no more than a warning that "medical madness" is one thing, whilst "legal madness" is quite another; that the tests laid down in that section were not intended to cover all the cases where the presence of any kind of mental disorder in the accused has been proved; and that it is possible for him to bear criminal responsibility even if he were thought, in the minds of doctors, to be a person who was at all relevant times "of unsound mind". But, the drafting of that provision does not oblige us to interpret it as laying down in absolute form that only if one of the tests stated in section 14 existed can there be room for relieving from punishment the person labouring under a disease of the mind. Had the legislator also included, for example, the 'volitional test', in that said section, the addition of the above mentioned provision would still not be superfluous, as Stephen's wording shows (see his book, "History of the Criminal Law", etc., Vol. 2; at p. 149). The reason is that here we are in a province the limits of which are far from clear - the field of "mental abnormality" - and the question whether the mental disorders afflicting a particular accused have reached a degree justifying the removal from him of criminal responsibility, is likely, as in all cases where the question of responsibility is one of degree, to arouse differences of opinion and to involve conclusions that are not agreed upon (see the observations of the Royal Commission at p. 100 of the Report, section 285). For that reason, the legislator came to warn us that a disease of the mind alone is not sufficient to produce an acquittal if none of the tests set out in the first part of section 14 is present in the accused. But those words of warning ought not to be regarded as designed to negative the value of the aforesaid volitional test, that, is to say, that one must not deduce from them an intention to impose criminal liability on a person whose mental disorders have brought a loss of control over the will-power. True it is that that last test is not mentioned together with the other two set out in the body of the provision in question, but this phenomenon may be explained thus, that in the first part of section 14, the legislator concentrated our attention only on the "cognitive" tests, whereas he included the volitional test in the provisions of another section - in the provisions of section 11(1). Hence what is written in the proviso to section 14 cannot make any difference either way as regards the question of the exhaustive nature of the tests laid down in the first part.

 

            The third "objection" : I have not the faintest doubt that when he enacted the provision in section 54, subsection (1), of the Criminal Procedure Ordinance, the legislator's mind was directed only to the tests that he had provided earlier in section 14 of the other Ordinance. Nevertheless, I am of the opinion, that that provision alone, having regard to the fact that it deals only with the form of verdict to be given in a case of insanity, cannot narrow the area of application of the provision found in the said section 11(1) and requiring that the criminal action be accompanied by free volition. For if that is not so, then you are in effect compelling a construction - by means of a provision having a purely procedural import which cuts down the scope of a provision having a substantive import of real importance - and that cannot be so. I should equally have reached the conclusion even if section 54(1) had not in the meantime been repealed (see section 31, subsection (3), of the Treatment of Mentally Sick Persons Law, 1955).

 

            Thus, weighed against each of the three "objections" dealt with, and even against their "combined effect", is the approach that demands, first, that we should repel with distaste the idea of punishing a man whose act derives solely from his madness, and, secondly, that we should regard the rule on this question as being part and parcel of the central theme underlying the whole of the criminal law both here and in England, namely, "mens rea", with all the elements contained therein, including the "voluntary" element. From this point of view, the observations of my colleague, Silberg J., in the Sepal appeal (4) are directly in point in our case: "Before us.... lies a question of method and attitude and not [just] a question of meaning and interpretation" (p. 411). So, indeed, decisive for me are the method and the attitude, according to which punishment is for those who, when they committed the criminal act, were healthy in spirit, a concept entailing volitional capacity, too, and not only rational and intellectual capacity. Any other approach implies the limiting of the rule and its confines to the area of operation of two tests, narrow in outlook and strict in character, as Lord Bramwell frankly admitted, when he said:

           

"The present law lays down such a definition of madness, that nobody is hardly ever mad enough to be with in it....."

 

            Accordingly, when in our times, the local legislator has left us, in section 11(1), an opening wide enough to enable us to escape from the narrow path, let us make use of that opening, and move on to the broad highway.

           

            Accordingly I can summarize the rule in this connection as follows:

           

            If it has been proved that -

           

            (l) at the time of the act, the accused was incapable of reventing the conduct with which he is charged;

           

            (2) as a consequence of being deprived of his will-power or its weakening to a considerable extent;

           

            (3) by reason of the disease of the mind under which he as labouring at the time; then he will not be regarded as punishable and will be absolved from criminal liability.

           

            Since I decided above that, from the point of view of the facts of the case, all these elements were present in the appellant in this case, the result is that he is absolved from criminal liability both as regards manslaughter, of which he was convicted, and as regards murder, of which we were asked to convict him by counsel for the respondent. We are thereby relieved of the necessity of going into the merits of the cross-appeal, the foundation for which has in any case collapsed.

           

            It remains for me to deal with a short procedural point concerning the form of the verdict which we must return, as well as the "manner of treatment" which we must settle. As I have already mentioned, on July 6, 1955 the Treatment of Mentally Sick Persons Law, 1955, was published (Statute Book, No. 187), in which the legislature, in section 31, subsection (3), repealed section 54 of the Criminal Procedure (Trial upon Information) Ordinance, and replaced it with the provisions of section 6 of the amending Law. This change, therefore, came after counsel for the parties had concluded their submissions before us. Section 6, subsection (b), of the new Law reads as follows :

           

"Where an accused person is brought to trial, and the Court finds that he has done the criminal act with which he is charged, but decides. .... that by reason of his having been ill at the time of committing that act he is not liable to punishment, and that he is still ill, the Court shall order that he be admitted to a hospital."

           

            But for this alteration in the Law, we might well have been involved in a certain procedural complication, on account of the form of the verdict "guilty but insane" being dependent on the conditions stated in the now-repealed section 54(1), and on those alone. Then, the question would have arisen, what form indeed should the verdict take in a case such as the one before us. Admittedly, it has already been noted above that that difficulty could not have affected the actual question of criminal liability. So, the said language of the provision of the new Law relieves us of the task of solving that problem, though only on the assumption that we are directed to apply that new provision in our case. I am of opinion that we are in fact bound to do so.

           

            As for the form of the verdict "guilty but insane", the explanatory remarks of Lord Reading in the case of Felstead (2), as we saw above, made it plain that the meaning of that phrase is that the accused is entirely absolved of criminal responsibility, that is, in the language of the said section 6(b), "he is not liable to punishment". From that point of view, therefore, the Israel legislator has produced nothing new by this amendment. For all that, it is well that it repealed the former phrase, for it was illogical and confusing and originated in England by pure chance.

           

            As for the "manner of treatment" that the Court ought to determine for the accused whose plea concerning insanity has been accepted, the legislator has made a fundamental alteration in its amendment, seeing that from now on, the court is bound to order the accused's committal to a mental hospital, if it has found that he is still suffering from a mental disease, whereas under the repealed provision it had no alternative, but to confine itself to the giving of an order for the accused's detention for such period as the Minister of Justice deems fit. But that revising or amending provision has no punitive content whatever, but rather is designed to secure for the accused who is of unsound mind the treatment he needs, on the one hand, and, on the other, for the public the protection to which it is entitled.

 

That being so, my opinion is that we must act in accordance with what is set out in section 6, subsection (b), of the new Law.

 In the light of the above, I propose that the following order be made:

           

            (a) The appeal is allowed and the cross-appeal dismissed:

           

            (b) The conviction and sentence are quashed:

           

            (c) The appellant is not punishable, by reason of his having laboured under a disease of the mind at the time of the act;

           

            (d) The appellant shall be committed to a "hospital" within the meaning of the Treatment of Mentally Sick Persons Law, 1955, unless it is submitted that after the conclusion of counsel's argument, the appellant's condition changed for the better. In that event, the case shall be returned to the Haifa District Court with a direction to act in accordance with section 6, subsection (d), of the said Law for the purpose of determining whether an order for hospitalisation should be made under that section.

           

SILBERG J. I have read with great care and with the greatest inte­rest the profound and brilliant judgment of my learned colleague, Agranat J.

 

            I fully concur in my learned colleague's attitude towards the question of irresistible impulse de lege ferenda, but to my infinite regret I am unable to agree with his view as to the lex lata of the State.

           

2. My reasons are as follows.

 

            Those who expect to see in the law in general, and in criminal law in particular, a proper reflection and faithful image of the scientific achievements and moral outlook of our generation, will agree that, since the M'Naghten Rules, as defined in the middle of the l9th century, do not correspond with the experience of medical science of today, it is desirable to "improve" and adapt them whether by redrafting or by supplementing the language, to the standard of our modern outlook. Since then, several barriers have fallen and several false notions have been dispelled. The organs of the body are not divided into separate parts as the scholars of the old school thought, and the supposed division between reason and will, the thought and the deed, has also disappeared. As men of scientific experience, we have become enlightened and we know that all the expressions of a man's personality emanate from a single source, and although from the functional point of view, special "cells", as it were, have been devised, the mutual dependency and compensatory influence between them break down all barriers and make them into one integral unit; so that if one of them is impaired, it will become apparent in the other two. The cognitive senses cannot be dimmed without engendering the dulling and blunting of the volitional and emotional systems, and those systems cannot be damaged without affecting the capacity and activity of the guiding intellect. For the mind, whether acting in sanity or in lunacy, is comprehensive and all-embracing and constiutes the whole of the traditional trio: the reason, the will and the emotions all together. So we, the men of this generation, are not prepared to regard the M'Naghten Rules as the ultimate revelation, and our moral feeling rebels at the idea that those two tests - the tests of "intellectual lunacy" - should alone determine the sanity or insanity of the offender, when we come to examine his criminal responsibility.

 

3. Those M'Naghten Rules are, in fact, far more dangerous here than they are in England itself. There in England, their motherland (as well as in the United States of America), this "devil" is not so frightening; for, "If Providence created the M'Naghten Rules, it created the jury as their antidote". No matter what direction the judge may give to the jury, whenever the accused really seems to them to be insane, they frequently find him "not guilty", even if his insanity could not be brought within the framework of the M'Naghten Rules. This not infrequent occurrence has already been noted, whether it be with satisfaction or in a mood of challenge, by the witnesses who gave evidence before the Royal Commission (see the Report of the Commission, pp. 82, 83, 102). That, no doubt, amounts to a certain evasion of the law, but the members of the jury appear to have acted, rightly or wrongly, on the assumption that "better a sin with a good motive than a virtue with a bad one" 1) and so they presented the presiding judge with a fait accompli. (And he, no doubt sometimes says amen to that fait accompli.) Such, however, is not the case in our country, where the jury system does not exist. The judge is bound to apply the law, even if the law does not seem to him to be moral; he is obliged, as a result of what is written in section 14, to examine the accused's insanity according to the test in the M'Naghten Rules, and according to that test alone; and the result is that he is liable to send to the gallows (in offences the penalty for which is still death) or to sentence to imprisonment for life, a man who, in Shakespeare's language, as quoted by my learned colleague, did not himself commit the act, but his "enemy", his madness.

 

4. So it seems that the M'Naghten Rules, as adopted by the Palestinian legislator (with a slight change of phraseology that is of no practical importance) in section 14 of the Code, are liable to disturb our judge's peace of mind and to place him in a difficult moral dilemma. But may be here we might do some law-making of our own, extending the legislation, and applying the M'Naghten Rules, against the scientific background of today, to insanity that is not only of the intellect; or more accurately, treat the man with the irresistible impulse - if it is but founded on mental diseased - as one who does not know the nature of his act.

 

            I agree with the opinion of my learned colleague, that from the purely legal point of view, we are not free to follow this path of extension by interpretation. This would amount to a straining of the simple meaning of the said rules and an impermissible betrayal of the interpretation given them - except in a few instances - by the judges of England for over a century. It may very well be and I am ready to assume in fairness to the learned judges that had they foreseen in the stars that which was then hidden in the medical science of the future, they would have formulated those rules in wider terms, in a way that would also have embraced what we today describe by the name of "irresistible impulse". But they did not know of it, and this lack of knowledge resulted, where an offender's insanity was concerned, in placing the emphasis on the "absence of knowledge", that is to say, not on the "clouding of the understanding", a likely consequence of the diseased impairment of the volitional and emontional systems, but on actual lack of knowledge, a lack of knowledge on the part of the reason, the comprehension, the intellect, about the nature of the act itself or of the evil in it. We cannot therefore give the extended meaning to include irresistible impulses, which was not intended by the draftsmen of the Rules and which the Rules themselves do not allow for.

           

5. With that I reach the question whether or not it is possible to bring the rule of irresistible impulse within the shelter of our law by means of the provisions of section 11(1) of the Code. Again I would emphasize that I am not discussing this question de lege ferenda, but de lege lata. My colleague, it will be recalled, answered the question in the affirmative, and I frankly confess that it is not with a light heart, but only after serious consideration, that I have eventually decided to differ from his considered opinion. The following are my reasons for disagreeing:

 

(a) I doubt whether the words, "which occurs independently of the exercise of his will", that my colleague refers to, are capable of comprehending an act originating in that irresistible impulse. The exact wording of the section is as follows:

 

            11(1). "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

           

From the context, namely, the proximity of the words quoted to "an event which occurs by accident'', and the reference at the commencement of the section to the provisions relating to negligence, it appears that here it means an act or omission which "occurred" not through the will at all. For example: A man jumped from the roof and hit and injured another, and the man who made the jump did not see, nor could he, in the circumstances of the case, have foreseen, the presence of the victim there. Here there has been a harmful act not by the will of the man who jumped, and according to our assumption, he is not guilty of negligence either, and so he is entirely absolved from criminal responsibility. The proviso emphasised in the opening words of the section, too, will not apply, of course, to an impulsive urge that cannot be overcome, and even that is something of a key, however inadequate, to the meaning of the Code.

 

(b) Even if we had overcome, and "for the sake of convenience", I should have been prepared to overcome, the linguistic difficulty, we are still faced with a much more serious problem. It seems to me that if we give to the provisions of section 11(1) the interpretation suggested by my colleague, we shall find that the main point is completely missing here, namely, mention of the basic condition that the cause of the accused's "involuntary" act must be his mental disease. Now, in section 14, which propounds the M'Naghten Rules, the legislator makes it a condition that the reason for the accused's lack of knowledge, either as regards the act itself or as regards the 'evil" in it, shall be his mental disease - in the language of the code, "through any disease affecting his mind" - whereas here in section 11(1), that condition is not mentioned at all. Can an act done in consequence of an impulsive urge that cannot be overcome go unpunished even where the cause thereof is not specifically a disease of the mind or insanity? It is clear that it cannot, and even my colleague does not of course disagree with that. No-one, not even the most liberal-minded expert doctor, has ever claimed that a strong carnal lust or a perverted thirst for blood might also constitute a ground for acquittal in sexual offences or murder. So the question is, why did the legislator repress his foresight here and fail altogether to mention that essential condition?

 

            Let it not be said that this essential prior condition is so simple a matter and so much taken for granted that the legislator saw no reason for wasting words over it, for it is not so! In the appendix to the Report of the Royal Commission (pp. 407-413), several laws are quoted that recognise expressis verbis the rule of irresistible impulse, and in all of them (apart from the French code, in which this point is not quite so clear) the condition, so "taken for granted", is written down black on white. For example :

           

            "A person is not criminally responsible for an act done or an omission made by him - ............

II.        When such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist."

           

(Section 16 of the Tasmania Criminal Code)

 

"When the accused or the prisoner was at the time of the act in a state of madness which made him incapable of controlling his actions, he may not be sentenced to any punishment?"

 

(Article 71 of the Belgian Penal Code)

 

"Any person suffering from a mental disease... who, at the time of committing the act, is incapable of appreciating the unlawful nature of his act or of acting in accordance with this appreciation cannot be punished."

           

            (Article 10 of the Swiss Penal Code)

           

            The law prevailing in South Africa, as formulated by the experts that testified before the Royal Commission, is as follows:

           

"A person is not punishable for conduct which would in ordinary circumstances have been criminal if, at the time, through disease of the mind or mental defect -

           

            (a) ...............

           

(b) he was the subject of an irresistible impulse which prevented him from controlling such conduct."

           

            If our legislator had wanted to hide away the rule of irresistible impulse within the folds of section 11(1), it does not seem to me that he would have spared himself the task, but would have emphasised, in two or three words, the causal connection between the deed and the malady.

           

(c) Last of all - a more substantive consideration. It seems to me that from the point of view of the real content of the rule, also, section 11(1) ought not be regarded as its proper ''home". The rule of irresistible impulse is not made entirely of one pattern, and not all the protagonists of that theory mean the same thing. There are those who say, for example, that the urge does not have to be impulsive, or sudden, but that it suffices if, as the result of a disease of the mind, of course, the accused did what he did under the latent influence of "strange forces": false yearnings, hallucinations, delusions, that have succeeded little-by-little in paralysing his self-will. The British Medical Association, which apparently supported this view, formulated before the Royal Commission the "third limb" of the M'Naghten tests in these words: the accused will be absolved from punishment if, as the result of a disease of the mind, he was at the time of the act "incapable of preventing himself from committing the act" (Report, pp. 110-111). The Commission examined that formula in the light of the case of a paranoiac madman by the name of Ley, who plotted a deed of assassination over a long period of time "reasonably and intelligently", and when he was tried, it appeared that throughout that period, he had been living in a twilight world of hallucinations and fantasies; and the Commission reached the conclusion that that formula would have been wide enough to cover Ley's act, and would, had he put forward the plea, have saved him from the shadow of the gallows.

 

            "It seems to us reasonable to argue that the words 'incapable of preventing himself' should be construed so as to cover such states of mind; that they should be interpreted as meaning not merely that the accused was incapable of preventing himself if he had tried to do so, but that he was incapable of wishing or trying to prevent himself..: If each of Ley's acts is considered separately, it would be difficult to maintain that he could not have prevented himself from committing them. Yet if his course of conduct is looked at as a whole, it might well be argued that, as a result of his insanity, he was incapable of preventing himself from conceiving the murderous scheme, incapable of judging it by other than an insane scale of ethical values, and, in that sense, incapable of preventing himself from carrying it out." (My italics) (Ibid., p. 111.)

 

            With this very approach in mind, and in order that the revised M'Naghten Rules "should cover most of the cases where a defence of insanity ought to be admitted", the members of the Commission gave their approval to that formula and suggested it to Her Majesty (p. 276). If the English legislator gives his approval to that formula, too, a criminal of Ley's sort would be relieved of punishment. It is possible that he would not be acquitted even before an English court unless the judges of England also adopt the extended interpretation given to that formula by the Royal Commission. He would certainly not be acquitted if his judges were, for example, South African or Tasmanian judges, for their law indeed recognises lunacy that is not solely intellectual as a ground for acquittal, but, as we saw above, restricts it to an act committed through impulse, in the sense used in ordinary parlance, namely, a more or less sudden urge.

           

Thus we observe that even this modern rule is not of unequivocal content, and it leaves room for many distinctions, disagreements and doubts. A fortiori several times over if, as regards the law in this country, we try to read it into the provisions of section 11(1). Our legislator uses neither the word "impulse" nor the phrase "incapable of preventing himself", but employs a colourless, neutral formula: "an act which occurs independently of the exercise of his will". Not only does that formula not solve the problem of the paranoiac, Ley, but leaves us to grope in the dark as far as other kinds of strange conduct are concerned. Who will relieve us of the doubt as to the meaning of the word "occurs" - does it mean suddenly, or not necessarily so? And what exactly did the legislator mean when he spoke of "the exercise of his will"? Was he referring, for example, to that "spiritual lunatic" à la Hadfield (11), who regards himself as having been sent by Providence to remove out of the way a certain person (not necessarily a ruler or monarch) that is, according to his crazy notions, delaying the coming of the Redeemer, and who carries out the "commandment" coolly and after considerable planning. Such a person, I think, would be "qualified for insanity" according to the Royal Commission's test; he would certainly not be so according to the South African or Tasmanian test; but it is very doubtful -- the answer may be yes or no - whether he would fall within the compass of the formula of our law. It might be argued that his insanity is concentrated on one point only: his regarding his victim as one who is frustrating the happiness of the whole of humanity; but in the light of this false vision, his desire is quite "natural", almost "sane", and I do not know whether one could properly say here his will had not been exercised, within the sense of the said section.

           

            To sum up, the basis of section 11(1) is not broad enough to cover the rule of irresistible impulse, for it does not fit the articulation of the rule. The content of the section is not clear, its language is incomplete, and the consequence would be, not the solution of problems, but their increase. I also think - and I have already expressed my view above - that the M'Naghten Rules as they stand are out-of-date and must be extended by the addition of a test about "non-intellectual" lunacy, the volitional or emotional lunacy. But exactly how that extension is to be made, to what extent and on what terms - I am not ashamed to admit I do not know. Even the Royal Commission heard 160 witnesses before it defined the new, third test. I think it would be better, therefore, if we left that task, full of pitfalls, to the legislator and did not introduce the rule, in an incomplete form, into the framework of section 11(1) of the Code.

 

6. Now let us examine whether the appellant ought not to be regarded as unpunishable from the point of view of section 14 of the Code, namely, under the tests of the M'Naghten Rules themselves. A not-so-common thing in criminal jurisprudence occurred here: three doctors, great experts in the same fired, gave evidence before the court; the three of them unanimously expressed the opinion that at the time of the act, namely, at the moment of shooting of the deceased, the appellant was "in a state of trance", yet nevertheless, the three learned judges rejected that opinion and decided what they did. Now, these were the experts' words:

 

            "I imagine that (the appellant) had no intention of harming Shifman... for he was in a state of trance...When, in answer to a question by the court, I said that if a policeman had been standing in front of the accused, he would not have fired, I was referring to the start of the shooting, before he started firing at Luba, but afterwards, when he fired at Shifman, the presence of a policeman would not have helped - not even a regiment of policemen, for then he had already entered into his world of fantasy, into a state of 'amok'." (Dr. Vinik, on pp. 167, 168, 172, 173).

 

            "It seems likely, you see, that the patient (he is referring to the appellant) was acting under a clouding of the mind strong enough to become a state of trance, and in such a state, a man does not know what he is doing...It is difficult to determine when this state of trance began, but it must be presumed to have started after the second shot that he fired at Luba Kreiner... the moment he acted against Shifman, apparently he was not acting in full consciousness." (Dr Mengel, on pp. 210, 212).

 

            "I am most certainly of the same view, that at the time when he fired at the victim, he was in a state of trance ...as to the fact of the state of trance, there was no doubt in any of us... I know that Dr. Mengel, Dr. Meir, Dr. Vinik, Dr. Kulcher and myself dealt with the accused, and I do not think the accused could have misled all five of us ...The result of the first shot was like that which caused the bursting and collapse of his 'ego' which impelled him into the state of trance. We examined his behaviour and acts at the time of the incident and after it, and we reached the conclusion that it could not be otherwise than that with the first shot the accused entered into a state of trance... An action like that of the accused while in a state of trance negatives any possibility that the accused knew what he was doing, and it is clear that there can be no talk of his being able to distinguish between good and evil to any extent whatsoever." (Dr Feldman, on pp. 216, 217, 220, 221, 222).

           

            These are the words the doctors repeated in their evidence to the court, but the learned judges paid no heed to them, and, as stated, rejected the united opinion of all three experts. Certainly, on the ground of legal principle, there was nothing to prevent them from so doing. The court is not bound to accept the opinion of an expert or experts, even when there is no other, contrary opinion against it. But, was there also any justification for their refusal to accept it in the case before us? Let us not forget that we are dealing here with a difficult psychological question, descending to the very springs and bed-rock of an insane person's lunatic and torn soul, a question which the "common sense" of an ordinary person - and that includes a judge - does not have the requisite instruments for investigating properly. Can common sense expect to repress and contain within its down domain the tortuous struggles of lunacy and madness, and does it constitute the right measure and sole standard by which to gauge the diagnosis that the doctors have established? Obviously not! We may well imagine an instance where the judge would be absolutely justified in rejecting the doctors' version, even in a problem as difficult and complex as this, and even if the greatest experts in the world gave evidence on it. I am referring to the case where the judge's question and the expert's reply are not on the same level: both of them are indeed employing the language, "responsibility", but the one (the judge) is thinking of legal responsibility, whilst the other (the doctor) is thinking of medical responsibility, and as a non-lawyer, he does not appreciate that there exists a difference and a distinction between them. In such a case, which is by no means a rare one, the judge rejects the doctor's opinion not as incorrect, but as irrelevant. But such was not the position in the present case. Here the question was confined to one point only: whether the accused, who is undoubtedly a dangerous paranoiac, had at the time of the act entered into a state of trance as a consequence of that disease or not. If in fact the doctors were right in their affirmative reply to that question, then it is clear and beyond doubt that he "did not know the nature of his act" in the strictest, most "M'Naghtenist" sense of the expression. It follows that the learned judges rejected the doctors' version, not as irrelevant, but as incorrect. The question is, were the learned judges entitled to establish that negative medical diagnosis in relation to the present appellant?

 

            I am bound to remark that the learned judges did not diverge from that triple evidence lightly, just like that - in an off-handed sort of way. They examined it from several angles and enumerated four grounds for rejecting it. We here, however, are relieved of the necessity of examining all those grounds, since the judges themselves attacked decisive importance only to the fourth and last ground, which is based on the appellant's statements to the police.

           

            "The matters we have enumerated hitherto", the judgment lays down, "certainly shakes our belief in the version of the complete trance at the time when the shots were fired at Shifman, but we would not have rejected that version entirely on those grounds alone. We must, however, weigh in the balance the accused's statements to the police, and they, in our opinion, settle the matter with complete certainty."

           

            Continuing, the learned judges raise a number of questions, of which the cardinal point in all of them amounts to this: if in fact the appellant had entered into a state of trance and forgetfulness at that moment, how is it that in his statements to the police, he remembered several facts? But further on, the learned judges themselves settle - with some difficulty or without any difficulty - the bulk of those queries, until eventually there remain but two of them that, according to their opinion, completely destroy the trance version. They write:

           

"The trance version, in our view, is completely destroyed by the very things the accused said in his second statement to Assistant District Inspector Movshovits, about the attitude of the deceased Shifman towards him: that Shifman was causing trouble for him and he regarded him as his enemy. We see no way of getting round those statements, for they were spoken perfectly logically, though with the logic of the accused while under the influence of his false notions. And if there remains any other spark of doubt, then that, too, disappears in the face of the accused's remarks about Besser, whom he liked 'just as I liked the late Shifman and he stood in front of me and I didn't do anything to him either'... One question stands out here that has no answer: if the accused was acting in a state of trance, how did he know that Besser was standing in front of him? How is it possible to argue that the accused did not know what he was doing at that moment?..."

 

            With all due honour and respect to the learned judges, it does not seem to me that those two queries are of sufficient force to rebut and destroy the experts' version. As for the logic in the manner in which the appellant addressed his remarks to Assistant District Inspector Movshovits, I fail to see how that detail can disprove retroactively the state of trance he was in thirty hours beforehand. A propos of that, a lack of logic is by no means one of the distinguishing signs of a paranoiac. On the contrary, in certain cases, his insanity expresses itself, if one may say so, specifically in the "hypertrophy of logic", in an excess of "intellectual" picking at and raking up of things that a normal person regards as having no substance.

           

            As for the second query, as to how he, while under the influence of dreams and trances, could remember the fact that Besser stood opposite him during those fatal minutes, that too, cannot, in my view, swing the scales against the appellant. For as the experts testified, the trance does not completely and utterly erase the memory of what was done at that moment, and the man can remember afterwards certain details or parts.

           

"Forgetfulness is not absolute in the case of a patient like this, and he can remember certain parts and individual details of what he did." (Dr. Vinik, p. 151).

           

"After awakening from that state (of trance). he can remember individual details or individual parts" (Dr. Mengel, p. 211).

 

            Those two experts' views touching the possibility of such partial recollection was not disproved, and in my opinion, there was no foundation for denying or even doubting the correctness of that scientific finding. That being so, the second query raised by the learned judges is automatically settled, and it follows - at least in my opinion - that there is not, nor ever was, any decisive consideration for rejecting the trance version.

           

7. The fact that the court below did not, in point of fact, believe in the trance version, cannot prevent us as a court of appeal from accepting it. No question of the witness' demeanour at the time of giving his evidence arises here. The question is a legal, logical one; all the same thought processes and considerations designed to determine a matter one way or the other are laid before us, just as before the court below, so that there is no room here for relying on the well-known rule, that the court of appeal will not be inclined to upset findings of fact made by the court that tried the matter. Authority for that, if authority is needed, may be found in the case of Jefferson (6).

 

8. The conclusions I have reached, therefore, are that the defence has succeeded in proving, to the extent of the proof required of it in a question of this kind, that when he fired at the deceased, the accused was, in consequence of his mental disease, "incapable of understanding what he was doing", within the meaning of section 14 of the Code, and is accordingly not punishable, as stated in the opening words of that section.

 

As for the form of order, I would adopt all that was said by my colleague at the close of his judgment.

           

GOITEIN J.: Having read the judgments of my colleagues Agranat and Silberg JJ., I feel like a dwarf standing between two giants; but with all due respect to my learned colleagues, I have difficulty in agreeing with the conclusions of either of them. On the one hand, I incline towards my colleague Agranat J.'s version, that the circumstances of the present case and the facts thereof do not enable us to apply the provisions of section 14 of the Criminal Code Ordinance. On the other hand, I differ from his conclusion, which holds that we can find refuge in this case in the provisions of section 11 of the Ordinance. On that point, I would adopt the view of my learned colleague, Silberg J. and I, too, am of opinion that section 11 is intended to deal with an entirely different set of facts from that which has been disclosed to us in this case; and unless we are prepared to twist the meanings of the text, we cannot fit into section 11 the facts and findings established by the court below. On this point, I agree with the observations of Silberg J., in their entirety, and I do not have to add very much to what he has written. At the same time, I cannot accept another conclusion arrived at by Silberg J. This court is in no position to differ from the court of first instance regarding the facts and findings of the latter and that court is free to make such decisions on the facts as it thinks proper and attach such value and weight to the evidence of experts and other witnesses as it considers right.

 

2. After reading the judgment of Agranat J. I can see the desirability of the Israel legislator seriously reconsidering the question of the criminal responsibility of persons who are not of sound mind at the time of committing a criminal act. The doctrine of "irresistible impulse" may or may not be one that Israel judges ought to apply, but I have already expressed my opinion in Attorney-General v. Segal (3), that the merits or lack of them in the introduction of a certain doctrine into Israel law is not a matter for the judiciary, but a subject to be examined and decided upon by the Knesset1) alone. Such a grave and difficult problem ought not, in my opinion, to be settled by the judge. It is not for him to wear the cloak of the legislator - and, sitting on the bench of the lawmaker, to decide what is desirable for the public on the one hand and, on the other, for the prisoner standing his trial. The court would not be carrying out the duty imposed upon it if it were to follow such a course.

 

3. The problem of "irresistible impulse" has for some time been disturbing the thinking of the best lawyers in the most advanced countries, and it has met with a variety of answers. Many of those answers are to be found in the judgments delivered abroad and in the writings of legal or medical experts throughout the world. The problem requires a thorough-going investigation and clarification and the Knesset is the body qualified and capable of taking the steps necessary for the enactment of a law based on the conclusions and achievements of the sciences of medicine and law. I am very far from being an expert on these complex investigations into the mind of man, and I would consider it highly improper to usurp the place of the Knesset and myself lay down the law.

 

4. It is obvious to me that judges are not automata and they are not bound to follow blindly the furrow ploughed by previous generations. They must take into account the achievements of modern science and its progress just so long as recognition of the changes that have come about in the scientific conceptions of mankind is compatible with the interpretation of the law which alone binds the court. But whenever we cannot accept the findings of science without disregarding entirely the provisions of the law, we must not allow ourselves to be beguiled into giving decisions that undermine the legal edifice. We are subject to the law as it is and not as we would wish to see it.

 

5. Section 14 of the Criminal Code Ordinance originated, as is wellknown, in the M'Naghten Rules that were formulated in England more than a hundred years ago. The judges who were asked at that time to give their opinion on the question of insanity from the legal point of view, complained at the time at having to reply to abstract legal questions, and openly declared their dislike at being asked to answer questions not related to a concrete case and without hearing the parties. One of the judges expressed his fear even then lest the M'Naghten Rules become thereafter a source of inconvenience to the general public, because instead of being rules constituting part of a decision given in a particular case - a decision that the judges had arrived at after hearing the arguments and counter-arguments of the parties - they were no more than airy expressions of opinion, detached from and unconnected with any concrete instance. Since then, the judges' replies, which as stated, came to be called the "M'Naghten Rules", have been subjected to the severe criticism of judges and lawyers. This criticism became the sharper with the discoveries of scientific research into the mind that sprang up in the school of Sigmund Freud, and which advanced and spread during his lifetime and after his death. At the same time, we must not overlook a vital fact which invests the M'Naghten Rules in Israel with a status very different from that of the same Rules in other countries. Section 14 of our Criminal Code Ordinance was not drafted in the l9th century, but in 1936. At that time, the voices of criticism that had been directed at the M'Naghten Rules had already been heard throughout the world. Nevertheless, those principles were included in the code of criminal law that was published in that year, and ever since then the Israel legislature has found either no need or no opportunity to introduce any alteration into the provisions of the section. The Israel legislature has hitherto shown that it is quite wide-awake and knows what the modern world needs in its treatment of the problems of criminal law. The revolutionary change in the law by which the death penalty for murder was repealed in Israel, is a particular case in point. Doubtless the defects in the M'Naghten Rules and their unsuitability to the scientific discoveries of our time are well known to the Israel legislature, and I feel sure that it will seize a proper opportunity of going deeply into the law and of finding a satisfactory solution to this problem - a solution that will reflect scientific notions on the one hand, and will answer the needs of the public on the other. Had the Israel legislature been anxious to throw over the M'Naghten Rules, it could of course have done so when enacting the Military Justice Law, 1955, which is a code of criminal law applying to persons subject to military law. It can hardly be regarded as accidental that the legislature preferred to retain, even as regards soldiers, the provisions of section 14 by referring us, in all that concerns that section - like the remaining sections relating to the fundamental principles of criminal responsibility - to the provisions of the general criminal code. As late as in 1955, therefore, we see that the legislature wished to retain section 14 as it stands, and as long as it considers that the provisions of that section should be applied and does not find it necessary to alter them, we have no alternative but to apply them.

 

6. I do not have to take up much time in explaining why the provisions of section 14 cannot be applied to the present case. That task has already been expertly and skillfully carried out by my learned colleague, Agranat J. I have no quarrel with the conclusions at which he arrived in that part of his judgment. But our paths divide when we come to interpret section 11 of the Criminal Code Ordinance. Section 11 deals with the question how far intention or motive can influence the measure of criminal responsibility. That is made clear by the headnote found in the margin to the section: "Intention; motive". We cannot, in my view, separate the main part of section 11(1) from its proviso. The main part speaks of acts or omissions arising out of negligence, whilst the proviso deals with acts that occurred not by the will of those who performed them or which occurred as the result of accident, that is to say, acts and events that occurred in a manner independent of the will of the doer of the acts. That and that alone is the scope of section 11 and the legislature had no intention whatsoever of settling, by means of that section, the question of the criminal responsibility of persons who are not of sound mind and whose will-power is impaired as the result of their mental disorder. If the legislator had had the intention attributed to him by my colleague Agranat J., he would not have refrained from giving clear expression to it in a special section, or at least in a special subsection. At all events, he would not have slurred over such a provision leaving the real meaning to be read between the lines, when he came to set out the rules of criminal responsibility for acts done negligently or accidentally and not by the will of those performing them. Not only that: this problem should have come up for solution after section 13 (the section providing that every person is presumed to be of sound mind so long as the contrary is not proved) the place singled out by the legislator for dealing with the questions connected with soundness and unsoundness of mind from the legal point of view. I do not imagine that any legislator in drafting the sections in question would jump from one subject to another, and it seems to me that the first place in the Ordinance where the legislator adverts to the question of the effect of a person's soundness of mind as a factor in his criminal responsibility is section 13, and in no previous section whatsoever. Only after the legislator has laid the foundation for the presumption in section 13 concerning everyone's soundness of mind, does he pass on to deal with persons whose soundness of mind is impaired by reason of insanity or drunkenness, which is also regarded by the legislator as a special form of insanity.

 

            I do not propose to do more than to add these reasons to the grounds that my colleague, Silberg J., has enumerated in his judgment, and I would only add that, to my mind, any attempt purporting to extend the application of section 14 by means of words found in section 11(1) is a little too daring, and one which finds no support in the language or import of the law.

           

            The Palestinian legislator undoubtedly knew in 1936 of the existence of the problem of "irresistible impulse", and if indeed it was his intention to extend the scope of section 11 in order that it might include provisions for settling that problem, he would certainly have found appropriate phrases, and would have made use of words more suitable than the words, "independently of the exercise of his will", found in section 11(1).

 

7. The real intention of section 11 can be best appreciated after an examination of the basic literature dealing with the principles of criminal law. We find a striking precis of this point in Kenny's book, "Outlines of Criminal Law" (sixteenth edition, edited by Turner). On p. 23, the author deals in detail with the question of "voluntary conduct". By way of demonstration, the author quotes the example of B holding A's hand, and with his superior strength, causing A to wound C with a knife which is in A's hand. The author adds that in centuries past, A was absolved from criminal liability an the strength of the argument that the act was not that of A, whereas today we arrive at the same conclusion by recognising that A's act was not done by A's will and was not accompanied by any mental intention.

 

            In that paragraph, Kenny employs the term "intention" - that is the "intention" appearing in the margin of section 11 of our Ordinance. The author adds, at the same place, that a person can make use of precisely the same argument in his defence, if he is overwhelmed by an attack of epilepsy at the time when he does the act of which he is charged. The same applies to a somnambulist or to one who is in such a state of intoxication, that he does not at all know what he is doing. According to Kenny, we must examine in each of these cases what was the intellectual state of the accused at the time of the act, and in the event of the latter proving that his conduct at that moment was not conduct originating in his will, he will not be responsible for his acts and their consequences. Kenny elucidates his meaning by giving further examples, and he mentions, inter alia, the case where a person kills another neither by his fault nor by his will, the case of doing an act while walking in one's sleep and "some cases of insanity or intoxication". These last words, italicised by me, amount to an apparent corroboration of Agranat J's observations, and they seem at first sight to reinforce the construction accorded by him to section 11. But a close examination of the authorities mentioned there leads us to a different conclusion. I am referring to the following two English judgments : R. v. Hay (13); R. v. Fryer (14).

           

            After reading those judgments I am satisfied that they do not justify the conclusion that the author deduces from them. In R. v. Hay (13), Darling J. said in his direction to the jury no more than this, that:

           

            "if they (the jury) believed the evidence of Dr. Dyer (the prison medical officer) they would be justified in finding the prisoner guilty of the act charged, but insane at the time of committing it so as not to be responsible according to law" (p. 269).

           

            We should add that the doctor replied to the questions he was asked during cross-examination, by saying that in his opinion, the accused knew at the time of the act that he was firing a revolver and that his act fell within the class of prohibited acts, but that owing to the disease of the mind that was affecting him, he was incapable of overcoming the homicidal impulse which had taken possession of him.

           

            However, whosoever takes the trouble to read the remarks of the doctor in his examination-in-chief, will discover that in the opinion of Dr. Dyer, the accused was of unsound mind both at the time of the act and at the time of the trial. Accordingly it is difficult, if not impossible, to find in that judgment corroboration for the view that the judge or the doctor were talking in that case about an act that was not dependent on the will of the doer, as distinct from an act committed through insanity.

           

8. In the second judgment, R. v. Fryer (14), Bray J., in his direction to the jury, declared that no real doubt had arisen on the question whether or not the accused had committed the criminal act with which he had been charged. Continuing his summing-up, the judge asked the jury to consider the accused's frame of mind at the time of doing the act. He adds:

 

            "What does 'insane' mean? The definition is based, according to our law, on this - that the accused laboured under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing Then there is an alternative - or if he did know the nature and quality of the act he was doing, he did not know that he was doing what was wrong.

 

            That is the recognised law on the subject; but I am bound to say it does not seem to me to completely state the law as it now is, and for the purpose of today I am going to direct you in the way indicated by a very learned judge, Fitzjames Stephen, and follow his direction – that, if it is shown that he is in such a state of mental disease or natural mental infirmity as to deprive him of the capacity to control his actions, I think you ought to find him what the law calls him - 'insane', because it seems to me, if there is such a disease of the mind, not caused by any accident, but an actual disease of the mind,such as to deprive him of the capacity of controlling his actions, in my opinion a jury should find him insane, if that is shown to have existed at the time of doing the act" (p. 405).

 

            Let us now examine the evidence on which the judge relied when he directed the jury in the way he did. According to one witness, the accused knew that his act fell within the class of a prohibited act, but did not completely understand what he was doing. In the witness's opinion, the accused did not at all appreciate the gravity of his act. Another witness said that, in his opinion, the accused did not understand the nature and quality of his act, and did not know that his act was wrong. This latter evidence clearly brought the accused four-square within the limits set up by the M'Naghten Rules.

           

9. The common denominator in these two cases was the defendants' lack of knowledge as to the nature of their act. Even if it be said that there is nothing to support such a conclusion, then the fact cannot be overlooked that here, we are considering not judgments, but directions to the jury. In any case, I do not think that it is possible to discover the slightest hint that the doctrine of the involuntary act of the accused was even being considered in these cases.

 

10. A recent English judgment dealing extensively with this problem and which is also mentioned in Agranat J's judgment, is Reg. v. Charlson (23). There questions arose which have much in common with the questions with which we have had to deal in this case. In that case, too, light is thrown on the legal questions involved in Barry J's directions to the jury. The accused, Charlson, who, until the day of the act, had acted towards his son as a kindly father, picked him up, took him to the window, struck his head with a mallet and threw him out of the window. The boy remained alive, and the father was charged with three offences, namely:

 

            a. causing grievous bodily harm to his son with intent to murder;

           

            b. causing grievous bodily harm with intent to cause harm ;

           

            c. unlawfully and maliciously inflicting grievous bodily harm without any specific allegation as to his intention.

           

            In the course of trial, the accused did not plead that he was of unsound mind at the time of the act, but said that at that moment, he was acting under the clouding of the faculties that deprived him of any control over his actions. The accused was acquitted on all counts. It was proved at the trial that his mother had died of cerebral haemorrhage, whilst his mother's sister had suffered from a cerebral tumour which had later caused her death, and his sister had died of meningitis. There was, therefore, some ground for assuming that the accused also suffered from some similar disease, although it was not proved that at the time of the act, the accused had been suffering from any such disease. On the other hand, it was proved that shortly after the act, the accused spoke quietly to the policeman that appeared on the spot, and said : "My God, tell me what I have done". A few moments later, he added: "It's something dreadful, isn't it; it's Peter, isn't it ?" (Peter was his son's name.) When he was brought before a second policeman for questioning, he said : "I have done something dreadful to Peter", and when he was told what had happened, he mumbled to himself: "Why did I do it?" When he was asked to relate what had happened to him, he replied: "We were in the back room... I remember hitting Peter, but I don't know why I did it. I will tell you what I remember."

           

            In his direction to the jury, Barry J. says inter alia:

           

"Therefore, in considering this third charge you have to ask yourselves whether the accused knowingly struck his son, or whether he was acting as an automaton without any knowledge or control over his acts. If you think that he was in a condition similar to that of a person in an epileptic fit, who does not know what he is doing at all then the elements of malice and unlawfulness would not have been established. If you are left in doubt about the matter, and you think that he may well have been acting as an automaton without any real knowledge of what he was doing, then the proper verdict would be 'not guilty', even on the third and least serious of these alternative charges" (p. 862).

 

            In this instance, too, the learned judge employs the language of the M'Naghten Rules and investigates the accused's mind or consciousness, ignoring the element of will entirely.

           

            As for the possibility that the accused was also suffering, like the rest of his family, from the cerebral tumour, the judge gives his opinion to the jury in these words:

           

            "If a man or woman is suffering from a cerebral tumour, says the doctor, he or she is liable to an outburst of impulsive violence, quite motiveless, and over which the patient has no control at all. The doctor does not state positively that this is the inference to be drawn from these events, but he says that it may be; and if a tumour does in fact exist, then the conduct of the accused would be wholly consistent with that of someone suffering from such a disease" (p. 864).

 

            After completing those observations, the judge goes back and restates the importance of the intellectual element - as distinct from the volitional element - in the investigation of this question.

           

11. So we see that, notwithstanding that the distinction between the intellectual element and the volitional element in a man's acts is well known in England also, an English court refrained, in a case where the facts were consistent with the facts in the present case, from applying the principle underlying section 11, but instead applied the principle that finds its expression in our law in section 14 of the Ordinance.

 

            It is not merely by suggestion alone that the judges in England have decided that the decisive factor is the intellectual state of the accused and not the volitional element in his actions. They have done so in clear and express language.

           

            In the case of Charles Aughet (26), Lawrence J. states, at p. 106:

 

            "Under Article 71 of the Penal Code (the reference is to the Belgian Penal Code, the accused being a Belgian soldier) it was open to him to set up as a defence that he was compelled to commit the acts... by a force which he was unable to resist. He did set up this defence, which is not one known to English law, and the Court held it to be proved and acquitted him."

 

In the case of Kopsch (17), Hewart L.C.J. speaks about:

 

            "the fantastic theory of uncontrollable impulse which, if it were to become part of our criminal law, would be merely subversive. It is not yet part of the criminal law, and it is to be hoped that the time is far distant when it will be made so" (ibid.,at pp. 51-52).

 

And in the case of Thomas (27), Darling J. states categorically:

 

            "Impulsive insanity is the last refuge of a hopeless defense" (ibid., at p. 37).

           

12. Turning now to Silberg J's judgment, which differs from the findings of fact made by the court below, and, in this way, enabling the learned judge to fit the present case into the framework of section 14, I see great difficulties in his path and with all regret I cannot adopt his conclusion.

 

            It has been proved that the appellant is suffering from the disease of paranoia. It has also been proved that a person suffering from the disease of paranoia is capable at the same time of understanding perfectly well the nature of his acts, and to know that a certain act falls within the class of prohibited acts. Those facts do not bring the accused within the defence afforded him by section 14. The burden of proof in all that concerns the accused's being of unsound mind continues, therefore, to be on the shoulders of the appellant and in order to succeed in his defence, the proof of paranoia alone will not suffice. The experts that gave evidence in the court below were unanimous in their opinion that the accused was suffering at the time of the act not only from paranoia, but also from a trance. It seems to me that it cannot be inferred from their evidence that every person suffering from paranoia must of necessity also suffer from trances. At all events, it follows that, in the opinion of the doctors, the present appellant was suffering from a trance at the time of the act. It is clear that it is the duty of a judge who hears the evidence, to weigh it up and on the evidence to decide whether or not there existed a trance at the time of the act, and if the judges found that the opinions of the expert witnesses on this point were of a theoretical nature and no more, and that the evidence did not enable them to reach a definite finding, then the judges of the court below were at liberty to decide what they did, and I do not see that we can differ on this point, from the decision at which the learned judges in the court below arrived.

           

            This question is in England left to the determination of the jury, because it is a question of fact. We, too, are obliged to leave the decision on this point in the hands of the judges who heard the evidence of the witnesses. I would only add that, from the evidence presented to the judges below (aside from the evidence of the experts), it is hard to see that the appellant was in a state of trance, and if the judges of the District Court reached the conclusion that they did, I do not see how I can overrule their decision and hold that that finding of theirs is erroneous. Accordingy, and with all due respect to my learned colleague, Silberg J., I see no reason for allowing the present appeal. It is true that it is the act of a paranoiac that caused the death of the victim. But it is equally true that not every act of a paranoiac is considered by our legislator to be the act of a person of unsound mind. On that ground and in accordance with the law as it exists in the State at the moment (as distinct from the law that may appear to be desirable), the accused is guilty of causing the death of the victim.

           

            13. Although I cannot absolve the appellant from liability for his deed, either by reliance on section 11 of the Criminal Code Ordinance, as my colleague, Agranat J., suggests, or by reliance on the provisions of section 14 of the same Ordinance, as my colleague, Silberg J. suggests, I think that the final result at which I arrive will not in practice be different from the result at which my two colleagues have arrived. I do not see how it is possible to apply to the present case the provisions of the Treatment of Mentally Sick Persons Law, 1955; but it seems to me that it is possible to ensure the appellant's committal to a suitable hospital and his reception there on the basis of the Prison Ordinance, 1946. I assume that when it becomes apparent to the prison authorities that a certain prisoner has turned insane, the Minister of Police will not be deterred from using the power given him according to section 62 of that Ordinance to order the transfer of such a prisoner to an institution where he will obtain the treatment he needs and which he ought to receive.

 

14. Now for the cross-appeal on behalf of the Attorney-General, which relates to that part of the judgment of the court below in which it was held that the prosecution had not proved in this case the existence of the element of which section 216(c) of the Criminal Code Ordinance speaks. The final section of the District Court's judgment is devoted to this question, and the conclusions of the court are:

 

            "We are of the opinion that the prosecution has not proved that the killing was premeditated, and therefore the accused is not guilty of premeditated murder, but of manslaughter."

           

            It follows from the judgment of the court below that, if A takes up a revolver in order to shoot and kill B, and in fact kills him, then the element mentioned in section 216(c) of the Ordinance is proved. On the other hand, if that same A fires his revolver at B but against his will hits C, A cannot be convicted of murder but only of manslaughter. Prima facie, that result is exceedingly strange. But the words employed by the legislator are perfectly plain, and although his intention may have differed from the one to be gathered from the language of the section, we are bound to examine his intention in the light of the wording that the legislator has employed in the section itself. The use of the word "such" four times in one subsection of the Code leads me to conclude that the construction placed upon that subsection by the District Court is indeed the correct one. This is the language of section 216 (c):

           

            "For the purpose of section 214 of this Code a person is deemed to have killed with premeditation when: -

           

(c) he has killed such person after having prepared himself to kill such person or any member of the family or race to which such person belongs, or after having prepared the instrument, if any, with which such person was killed."

 

            It will be noted that if Reuven intended to kill Mustapha or some other member of Mustapha's family, then Reuven will be convicted of murder if he caused the death of Mustapha or another member of his family. The same applies if Reuven intends to kill Mustapha or any other Moslem, and no distinction will be drawn if in fact Mustapha or any other Moslem is killed. In both cases alike, Reuven will be convicted of murder. If, on the other hand, Reuven intended to kill Mustapha but in fact hit Anastas, who is of the Christian faith and who at the time of the act was standing near to Mustapha, the condition required by section 216(c) will not have been satisfied, and Reuven will be convicted of manslaughter only. As stated above, that is because of the absence of the element of preparation in Reuven's act, as required according to section 216(c). I would only add that it is quite impossible to have regard to section 216(c), while at the same time ignoring section 216(a). Section 216(a) as is known, speaks of the killer's resolve "to kill such a person". It follows, therefore, that "such person" mentioned in section 216(c) is identical with "such person" mentioned in section 216(a).

 

            I gather from the language of the section and from reading the section as a whole, that if Reuven intended to kill Mustapha, but hit Anastas instead, Reuven will not be convicted of murder, but only of manslaughter, in accordance with sections 212 and 213 of the Criminal Code Ordinance.

           

            Considerable importance was attached to that distinction in the past, when a murderer was liable to the penalty of death by hanging, and to that penalty alone, whereas a person convicted of manslaughter was liable to the maximum penalty of life imprisonment. Today, those distinctions have to a great extent been blurred as the result of the abolition of capital punishment for murder, and its replacement by imprisonment for life.

           

            My opinion is, therefore, that the interpretation given to section 216(c) by the court below was the right one, and I think that the Attorney-General's appeal should be dismissed.

           

            In accordance with what has been set out above, it is decided by a majority to allow the appeal of the appellant, and it is unanimously decided to dismiss the cross-appeal of the respondent. The result will be as set out in the last paragraph of the judgment of Agranat J.

           

            Appeal allowed.

Cross-appeal dismissed

Judgment given on February 24, 1956

 

1) Kupat Holim - General Workers' Union Sick Fund.

1) Based on the Talmudic phrase that there may be such a law but we treat it as obsolete.

 

1 Culled from an ancient Talmudical source.

 

1) A parody on a Talmudic epigram.

1) knesset - the Parliarment of Israel

Full opinion: 
PDF icon Mandelbrot v. Attorney General.pdf

Kariti v. Attorney General

Case/docket number: 
CrimA 242/63
Date Decided: 
Tuesday, June 30, 1964
Decision Type: 
Appellate
Topics: 
Criminal Law
Conviction
Criminal Procedure
Evidence
Admissibility
Abstract: 

The appellant was charged on five counts of incorrect capital and income returns over some three years. One count was struck out by mutual consent. He was convicted by the Magistrate's Court on two counts and acquitted of the remaining two. On appeal to the District Court he was acquitted of a further count. Affirmation of his conviction on the remaining count was vaguely attributed to one of two years or both of them and the charge was amended accordingly and in the result the struck out count was revived. The appellant pleaded on appeal that in convicting him the District Court exceeded its powers and that capital and income returns were not admissible in evidence under the law. not having been voluntarily made.

 

Held.  In the circumstances, the District Court was not justified in amending the indictment without giving the accused the opportunity to be heard. A count which has been struck out by consent before trial cannot in any event be revived. Furthermore, conviction on separate alternative charges under one count cannot stand because of duplication and uncertainty since the accused cannot thereafter plead, if necessary, autrefois convict or acquit.

 

The requirement to make capital and income returns and other relevant information in accordance with the law does not render an admission involuntary. The confession rule must be distinguished from the privilege against self-incrimination. The test of the former goes to the means in which it was obtained. The latter rests in the "inhumanity" of placing a person in the legal dilemma of being criminated for an offence already committed or perpetrating another offence by refusing.

Voting Justices: 
Berinson, Zvi
Primary Author
majority opinion
Manny, Eliyahu
majority opinion
HaLevy, Binyamin
Author
concurrence
Full text of the opinion: 

Crim. A. 242/63

 

           

MICHAEL KARITI

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[June 30. 1964]

Before Berinson J., Manny J., Halevi J.

 

 

 

Incorrect returns of capital and income by reason of omissions - Duplication alternative counts - Amendment of indictment - Implied admission of offence arising out of amendment - Evidence Ordinance, 1924, sec. 9.

 

 

                The appellant was charged on five counts of incorrect capital and income returns over some three years. One count was struck out by mutual consent. He was convicted by the Magistrate's Court on two counts and acquitted of the remaining two. On appeal to the District Court he was acquitted of a further count. Affirmation of his conviction on the remaining count was vaguely attributed to one of two years or both of them and the charge was amended accordingly and in the result the struck out count was revived. The appellant pleaded on appeal that in convicting him the District Court exceeded its powers and that capital and income returns were not admissible in evidence under the law. not having been voluntarily made.

 

                Held.  In the circumstances, the District Court was not justified in amending the indictment without giving the accused the opportunity to be heard. A count which has been struck out by consent before trial cannot in any event be revived. Furthermore, conviction on separate alternative charges under one count cannot stand because of duplication and uncertainty since the accused cannot thereafter plead, if necessary, autrefois convict or acquit.

 

                The requirement to make capital and income returns and other relevant information in accordance with the law does not render an admission involuntary. The confession rule must be distinguished from the privilege against self-incrimination. The test of the former goes to the means in which it was obtained. The latter rests in the "inhumanity" of placing a person in the legal dilemma of being criminated for an offence already committed or perpetrating another offence by refusing.

           

Israel cases referred to:

 

(1)        Cr.A. 51/61-Attorney-General v Aharon Steinberg (1961) 15 P.D.1602.

(2)        Cr.A. 114/52-Ezra Habara v Shoshanah Yeroham (1953) 7 P.D.

(3)   Cr.A. 20-21/49-A1i Mahmad Hussein Abdul Ha'adi and others v Attorney-General (1950) 3 P.D. 13.

(4)        Cr.A. 307/60-Jarboni and others v Attorney-General (1963) 17 P.D. 1541.

(5)        Tel Aviv S.C.C. 3/54-Attorney-General v Victor Mizan (1956) 11 P.M. 140.

 

English cases referred to:

 

(6)        R. v Surrey Justices. Ex parte Witherick (1932) 1 K.B. 450.

(7)        R. v Molloy (1921) 2 K.B. 364.

(8)        R. v Wilmot (1933) 24 Cr.App. R. 63.

(9)        R. v Scott (1856) 7 Cox C.C. 164.

(10)      R. v Colpus & Boorman (1917) 1 K.B. 574.

(11)      Re Worral Ex parte Cossens (1820) Buck. 531.

(12)      R. v Slogget (1856) 7 Cox C.C. 139.

(13)      R. v Noel (1914) 3 K.B. 848.

(14)      Comm. Customs & Excise v Ingram (1948) 1 All E.R. 927.

 

Arnerican cases referred to:

(15)      State v Reinhart (1895) cited in Wigmore on Evidence (3rd ed) Vol 3, p.239.

(16)      State v Novak (1899), ibid., p.240.

(17)      State v Porter (1897), ibid. p.245.

(18)      State v Guie 186 Pac 329 (1919), ibid., p.245

(19)      Wilson v U.S. 221 U.S. 365 (1911).

(20)      Davis v U.S. 328 U.S. 582 (1946).

(21)      Shapiro v U.S. 335 U.S. 35 (1948).

(22)      pano v New York 360 U.S. 315 (1959).

(23)      Blackburn v Alabama 361 U.S. 199 (1960).

(24)      Nicola v U.S. 72 F. (2d) 780 (1934).

(25)      Hanson v U.S. 186 F. (2d) 61 (1950).

 

A.S. Shimron for the appellant.

A. Kamar, Deputy State Attorney, for the respondent.

 

BERINSON J.            The appellant was tried by the Haifa Magistrate's Court on the following five counts under sec.77 of the Income Tax Ordinance, 1947:

(1) giving incorrect information on a return of capital submitted as at 31 March 1957 in that he included an excess of 620 sovereigns;

 (2) giving incorrect information in a return of capital submitted as at 31 March 1959 in that he did not include a sum of IL. 12,500:

(3) preparation of an incorrect return for the 1957 tax year in that he declared an income of IL.3,600, and thereafter reached agreement with the Assessing Officer whereunder his income for that tax year was put at IL.5,000 whereas his true income in that tax year was IL.69,490, thus omitting without reasonable explanation from the said return income amounting to IL.65,880;

(4) a similar offence of omitting the same income of IL.65,880 from the return for the 1958 tax year;

(5) an alternative offence of omitting the same income of 1L.65,880 from the returns for the 1957 and 1958 tax years.

 

            At the outset counsel for the appellant pleaded that the fifth count suffered from being duplicatory and further did not disclose an offence, and with the consent of the representative of the Attorney-General, it was struck out.

           

            In the Magistrate's Court the appellant was acquitted of the second and fourth counts but was convicted of the first and third counts for omitting an amount of IL.35,800. He appealed against the conviction but the Attorney-General did not appeal against the acquittal. The District Court acquitted the appellant on the first count as well but found him guilty of the third count, amending the conviction as follows: "Since we are unable to determine whether this amount (of IL.35,800) was omitted from the return for the 1957 tax year or from that for the 1958 tax year, the conviction will stand for omitting this amount from the return for the 1957 tax year or from that for the 1958 tax year or from both together." In so convicting him, the Court treated the conviction as more in accord with the fifth count which had been abandoned as above but felt justified in doing what it did by virtue of its powers under sec. 12 (5) (b) of the Magistrate's Court Jurisdiction Ordinance (1947) to amend a count in order to give such judgment as, in its opinion, ought to have been given by the Magistrate's Court. In so doing the District Court relied on the judgment of this Court in Attorney-General v Steinberg (1), stating that in any event if the appellant did not omit chargeable income from the return for 1957, he omitted it for 1958, or omitted part in each year.

           

            It seems to us that the path which the District Court followed is not open to us. Appellant's counsel rightly urged that by so convicting the District Court went beyond its powers. Under the said section the power of a District Court as an appellate court is to give such judgment as should in its opinion have been given by the court below on the charge of the evidence adduced. Might the Magistrate's Court, at the end of the hearing, have reverted to the fifth count and convicted for it, after having been included in the charge sheet and struck out with the consent of the prosecution in view of the opposition of defendent's counsel? It seems that it could not, precisely because it was struck out. And if the Magistrate's Court might not so revert, then also the District Court could not.

 

            Mr. Shimron frankly admitted that the appellant was not substantively put at a disadvantage by the District Court's amendment of the charge, and had he been given the opportunity to plead against the charge in the manner which the District Court had in its judgment, he would not have advanced any new argument against the charge itself nor put in any evidence further to that before the court. Yet, he argues, had he had the opportunity to plead against the charge in its new form he would have shown that the District Court was not empowered to convict as it did - at least, he would have shown that the conviction certainly suffered from being duplicatory.

           

            We agree with Mr. Shimron that in the circumstances of the case, as described above, it was not proper to vary the counts without giving the Defendant good opportunity to plead to the variation, and had that been done, he would have had something to say to prevent such conviction as the District Court decided upon. Indeed, the fifth count was not struck out in vain by the Magistrate's Court without opposition from the prosecution. It is clear to us that in its original form it did not disclose any offence since the duty is to make a return of income for each tax year separately (sec. 43A of the Income Tax Ordinance) and no duty exists to submit a return for two years together. The offence can only be the making of an incorrect return for one particular year. Neither can the conviction on the amended count stand, first, because of the above point that the Magistrate's court could not revive - even if in an amended form - the count struck out by it at the outset and that therefore the District Court was debarred from doing so; and secondly - and this is the main reason - because the new count, as phrased by the District Court, contains in fact a number of separate alternative offences, the omission of the amount of IL 35,800 from the return for 1957, or the omission of that amount from the return for 1958, or the omission of an unaxetained part of that amount from the return for 1957 and omission of the remainder from the return of 1958.

 

            Such a conviction is defective both for duplication and uncertainty. "1t is an elementary principle that an information must not charge offences in the alternative, since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict:" R. v Surrey Justices (6) at 452; see also R. v Molloy (7) and R. v Wilmot (8).

 

            According to Attorney-General v Steinberg different offences can be contained in one indictment in the alternative, provided that each is put as a separate count. lf the prosecution succeeds in proving that the Defendant has prima facie committed one of the alternative offences, the Defendant must answer to the charge. Should he not do so or not succeed in exculpating himself from all the alternative offences, he can be convicted of one of them but not on the basis of the very same facts of all of them or in a vague manner of one or other offence without choosing one of them.

           

            For this reason, we must go back to the third original count and inquire whether he could be convicted of that or alternatively of the fourth count. These two counts of which the defendant was charged in the Magistrate's Court are in their nature alternative. That they are so is not expressly stated in the indictment but that is unnecessary where they are clearly so. It is indeed manifestly clear in the present case: the appellant is alleged to have omitted an amount of IL.65,880 once only in one of two years but the prosecution did not know precisely in which of them. He was therefore charged with the omission of the entire amount alternatively in the one or the other year. Accordingly the Magistrate's Court could, at its election, have convicted him of one of these two alternative charges upon finding that all or part of the amount was omitted from the return for one of the two years. Since it found that an amount of IL.35,800 was omitted in the 1957 tax year, he was convicted of the third count and exonerated of the fourth count. There was no appeal by the prosecution against the latter, but according to Habara v Yeroham (2) that does not deprive the appellate court of the power to convict for the offence for which he should initially have been convicted on the evidence adduced in the case. Notwithstanding, therefore, the acquittal by the Magistrate's Court on the fourth count and the fact that the Attorney-General entered no appeal, the District Court could have convicted the appellant of one of the two counts, depending on the evidence before the Magistrate's Court. This course which was open to the District Court is obviously open to us as well, and we shall later consider the possibility and need to proceed accordingly.

 

            Before doing so, we must deal with two other arguments by Mr. Shimron, each of which, if accepted, may relieve us from the necessity of dealing with the details of the omission alleged against the appellant.

           

            The first argument is that in the course of other proceedings between the parties regarding the assessment for tax year 1957 ... counsel for the respondent pleaded an income of IL. 22,000 and the State is therefore bound by that. The income was at first fixed by agreement for each of the years 1952 to 1957 inclusive. Since, however, the appellant's declarations of capital disclosed unexplained differences, the Income Tax Commissioner reopened the assessments and increased them and also determined the appropriate assessments for 1958 and 1959. That was, done by distributing the capital differences among all these years; for 1957 the new assessment was put at IL. 22,000 as against the appellant's declared income of IL. 3,600 and the income earlier agreed of IL. 8,000. The argument was that this determination by the Commissioner, approved by court on appeal against the assessment, is by way of an admission by the State of the correct income of the appellant in that year and the State now cannot argue otherwise here.

           

            I must say that I have not quite understood the argument. What admission is there which prevents the State from arguing otherwise or in contradiction? The Commissioner estimated the appellant's income on the basis of the disclosed capital differences and made an arbitrary division of these in respect of those years according to his best judgment. This is not to be regarded as a determination of the true income of the appellant in those years, which bars the State from showing the facts as they really were. The determination is no more than was earlier agreed by the Assessing Officer to put the appellant's income for 1957 at only IL. 8,000. Mr. Shimron himself agrees that what occurred does not create an estoppel against the State and is not to treated as a final determination. If that is so. the most he can say is that the Magistrate's Court should have weighed the State's submissions in this case in the light of the fact that they vary from those made in that case. The evaluation of the evidence is primarily the concern of the court hearing the matter. In the present instance the Magistrate's Court had to decide which was preferable, the vague assessment of the Assessing Officer or the result emerging from all the evidence put to it. It preferred the latter and no one complained about that.

 

            Incidentally, had we said that the Commissioner's assessment was determinative, then at least this "admission" upon which the appellant relies is calculated to convict him at once for concealing an amount of IL. 18,400, the difference between the assessment of IL. 22,000 and a declared income of IL. 3,600, and the plea that the appellant had not committed any offence would fall. I am certain that had the prosecution attempted to base conviction on this ground, Mr. Shimron would be the first to protest and rightly.

           

            Mr. Shimron's second submission concerns two declarations of capital of March 31, 1957, and March 31, 1959, which the appellant filed with the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, and which served as a basis for calculating the amount omitted from the annual returns of income. Mr. Shimron argued that the declarations of capital presented in court are not admissible as evidence. They form confessions in the sense of sec. 9 of the Evidence Ordinance since they contain statements from which the likely conclusion is that a criminal offence has been committed, and it was given to the Assessing Officer, a person in authority. (See sec. 3 of the Income Ordinance which defines an Assessing Officer as an officer appointed to implement the Ordinance, possessing wide powers, including those under sec. 45). The declarations, being confessions which the appellant was compelled to make under the law, lacked "free and voluntary" foundation and are therefore inadmissible. Mr. Shimron argued further that the Income Tax Ordinance did not permit the use of information delivered under sec. 45 as evidence against the person delivering it, even if it is liable to incriminate him and in the absence of such a provision it is not permissible as evidence. Initially, the submission appeared very peculiar to me, its reasonableness somehow worried me, and as I continued to think about it and examine the sources I indeed grew conscious that it was completely baseless.

 

            The first question is whether the declarations of capital, each on its own and together, fall within "confessions" within the meaning of sec. 9 of the Evidence Ordinance. Archbold's Criminal Pleading (34th ed.) p. 415, para 1104, states that "an extra-judicial confession is made where the prisoner makes an admission ... of his guilt or of any fact which may tend to the proof of it."

           

            Mr. Shimron relies on this definition. He agrees that although the declarations as such do not confess any guilt, they contain, in his view, an admission of facts which tend to guilt. Mr. Kamar on the other hand argues that according to its terms sec. 9 of the Evidence Ordinance is limited to "confessions by the accused that he has commited an offence. It therefore applies only to actual confessions of an offence and not to admissions of facts which in themselves do not point to guilt. In his opinion, the terms of see. 9 are more in accord with the English rule which we have so far followed, and he suggests that we replace the one with the other. The rule in the U.S., as given by Wigmore on Evidence (Third ed.), vol. 3, para. 821, pp. 238 ff, is more stringent than the English rule.

           

"A confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it."

 

            It clearly follows from this definition that an exculpatory statement by the accused or his acknowledgment of subordinate facts colourless with reference to actual guilt or in other words not essential to the alleged offence is not a confession (ibid. pp. 239 & 243). The many precedents cited justify the above summary of the rule.

           

"A 'confession' in a legal sense is restricted to an acknowledgement of guilt made by person after an offence has been committed, and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred." (State v Reinhart (15)).

 

"A confession is a voluntary admission or declaration by a person of his agency or participation in a crime... To make an admission or declaration a confession, it must in some way be an acknowledgement of guilt." (State v Novak (16)).

 

            "We take it that the admission of a fact, or of a bundle of facts, from which guilt is directly deducible, or which within and of themselves impart guilt, may be denominated a confession, but not so with the admission of a particular act or acts or circumstances which may or may not involve guilt, and which is dependent for such result upon other facts or circumstances to be established.:' (State v Porter (17)).

 

And finally, a quotation which to some extent accords with the circumstances of the present case:

 

"A confession is a direct acknowledgement of guilt on the part of the accused, and, by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction." (State v Guie (18)).

 

It is true that see. 9 of the Evidence Ordinance speaks of "confessions of an offence" but, as Mr. Kamar admits, the courts in this country normally regard every admission of a fact indicative of guilt or tending to prove guilt as a confession, and I do not see any reason for departing from this course, which is at one with English practice. A local precedent may be found in the District Court judgment in Mizan (5), from which this Court did not demur on appeal.

 

            The next question is whether the two declarations of capital meet the above tests of a confession. The first declaration, relating to Mar. 31, 1957, was filed on October 8, 1957. At that date, obviously, no income return had been submitted for the 1957 tax year; that was only done on May 18, 1958. It is therefore clear that on the date the declaration of capital was filed no offence had as yet occurred and that the declaration cannot be "a confession by the accused that he has committed an offence" (see. 9). On the other hand the second declaration, relating to March 31, 1959, was filed on September 9, 1959. At that date, the Assessing Officer already had the two income returns for 1957 and 1958 (the second was filed on June 18, 1959). Accordingly when the second declaration was filed, the offence of delivering an inaccurate return for 1957 had already been committed, if it was inaccurate. In this regard alone must the second declaration of capital be regarded as a confession, if (together with other documents) tending to the appellant's guilt.

 

            Mr. Kamar goes on to urge that this declaration of capital does not have to be tested by "voluntariness" since it was not filed at the request of the Assessing Officer but by the appellant on his own initiative, not as a person suspected of having committed an offence but apparently in connection with objections to the assessments for 1957 and 1958. This is not quite correct. The appellant was invited to appear at a hearing before the Assessing Officer and was asked to bring along documents in his possession on which his objections to the assessments were based. Attached to the invitation was a form of declaration of capital for March 31, 1959. That was clear notice that this declaration was among the documents he was to bring with him. The appellant in fact so understood it and did what was required. Nor can it be said that at the time the appellant was not suspected of commission of an offence. Already on January 23, 1959, his bank safe was searched and gold coins were found there which he had not declared; the appellant was suspected because of that by the income tax authorities.

           

            We now reach the main submission of Mr. Shimron, that the declarations of capital were not made voluntarily by the appellant and are therefore inadmissible in evidence against him. This submission is based on the fact that the appellant was compelled to make the declarations under statutory dictate, since he was threatened by criminal sanctions under sec. 76 of the Ordinance if he did not comply with the request of the Assessing Officer.

           

            There are a number of answers to this submission.

           

(1) When is an admission treated as a confession not voluntarily made? The test, it was said in Ha'adi (3), is a single one. "Where the admission was made by the defendant voluntarily, without compulsion, temptation or persuasion, it is valid, where it was not so made, it is invalid." To use the usual formula, a confession obtained under threats or improper assurances is invalid:

 

            The Assessing Officer's request under sec. 45 of the Income Tax Ordinance to make a declaration of capital or to deliver any other information a person has in connection with his income is not unlawful compulsion or temptation or persuasion that can invalidate the declaration made or information delivered in response to the request.

           

            In dealing with extra-judicial admissions Wigmore on Evidence (3rd ed.) vol. 4, para. 1050, pp. 7-8, says that "admissions made under a duty imposed by law stand on a special footing. It would seem that nothing in the principles governing Admissions excludes them." As exception to the rule he mentions inter alia the following two instances in which an admission may be invalidated. The first is when the statute imposing the duty requires a report to a public official but makes its contents confidential and expressly renders it as privilege a communication; even if not express the privilege may be implied where policy obviously requires it. Secondly, in criminal cases, an admission of this kind might receive protection from the privilege against self-incrimination.

           

            In our opinion, neither of the said instances is applicable here. Not only does the Income Tax Ordinance not extend any privilege to information delivered in response to a notice under sec. 45 but it makes a failure to respond or the delivery of wrong information a criminal offence (secs. 75 & 76). All this shows that the legislative intent was that a person requested to deliver information which assists in determining his true income must produce that information, accurate and true. It cannot be that information is privileged from an application to court against the person delivering it. If it were so, that would enable or facilitate the delivery of inaccurate information without fear and the purpose of the law set at naught. In R. v Scott (17), dealing with the examination of a bankrupt under a section of the Bankruptcy Act which bound him to answer questions touching his business affairs etc., it was decided that his answers even though incriminatory, were good evidence in a criminal charge against him. Lord Campbell said,

           

''lf the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted; but a similar protection cannot be demanded where the question was lawful and the party examined was bound by law to answer it."

 

            And then,

 

"When the Legislature compels parties to give evidence accusing themselves, and means to protect them from the consequences of giving such evidence, the course of legislation has been to do so by express enactment... We therefore think we are bound to suppose that in this instance, in which no such protection is provided, it was the intention of the Legislature to compel the bankrupt to answer interrogatories respecting his dealings and conduct as a trader, although he might thereby accuse himself and to permit his answers to be used against him for criminal as well as civil purposes" (at pp. 170-71).

 

Likewise, Alderson B put it succinctly:

 

"My judgment proceeds upon the ground that if you make a thing lawful to be done, it is lawful in all its consequences; and one of its consequences is that what may be stated by a person in a lawful examination, may be received as evidence against him"(at p.175).

 

(2)        The principle that invalidates incriminatory answers not given voluntarily, does not operate here for another reason as well. It is a leading rule that an official document kept by or found in the possession of a public official must be accessible to the representatives of the public and generally to the entire public, and it can serve as prima facie evidence of the truth of its contents. And its presentation in evidence, even if it tends to incriminate the public official or any other person, is not to be barred unless the law otherwise prescribes or if for some other lawful reason that official or other person is protected against disclosure of the document and its presentation in court. The reason is that the State requires it to be kept and does not ask of the official to commit an offence. "If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law" (Wigmore on Evidence (3rd ed.) para. 1259c, p. 349). 349).

 

            This reason is equally operative with regard to records which the law requires the citizen to keep, including returns and other documents made under statutory requirement. These documents are not merely the private papers of the citizen which he can conceal and prevent their disclosure as evidence in court. They possess a public character and therefore if lawfully obtained are valid evidence: Wilson v U.S. (19); Davis v U.S. (20); Shapiro v U.S. (21). The public has an interest in their non-concealment and their availability for every lawful purpose. This interest prevails over the private interest of their owner to prevent disclosure.

 

(3) Although pleaded, there was in fact no proof that the declaration of capital was given under compulsion of "threat" of criminal sanction hanging over the appellant in the event of his non-compliance. The notice sent to him asked him to present a declaration in the form attached. The form follows sec. 45 of the Ordinance but contains no notice or warning that non-delivery of the required declaration is an offence under the law. True, every person is presumed to know the law. That is a legal presumption. It is another question whether in fact the appellant was aware of the statutory penal sections and as a result of such knowledge complied with the request but otherwise would not have done so. The burden of proof that the evidence which the appellant wishes to exclude was given voluntarily is, we know, upon the prosecution. A plea of improper influence exercised on the defendant, in consequence of which he confessed, must be explicit so that the prosecution knows what case it has to meet. Here the appellant neither attested nor pleaded that he knew of the statutory penal sections and these it was which moved him to respond to the request and deliver the declaration of capital involved. In point of fact, there was no proof of the kind of influence exerted on the appellant that would justify the declaration being invalidated as evidence. The form asked the appellant to give correct particulars and to complete the form accurately. There is no reason for assuming that as a consequence he was influenced to include incorrect statements in the declaration: R. v Colpus (10).

(Berinson J. then analyzed at lenght the facts about the omissions and the related calculations, and continued.)

 

            The result ultimately is that we uphold the conviction on the third count and find that a sum of IL.21,252 was omitted, without reasonable explanation, by the appellant from his return of income for 1957.

           

On the assumption that the amount omitted was IL.35,800 the appellant was sentenced to a fine of IL.14,000 or six months' imprisonment and a suspended term of three months. In respect also of the omission as above, although it is less, we do not think that the sentence is excessive and we uphold it and dismiss the appeal.

 

            I have read the judgment of my learned friend, Halevi J., and I concur in it.

           

MANNY J.     I concur in the judgment of my learned friends, Berinson J. and Halevi J.

 

HALEVI J.     I agree.

 

2. As for the admissibility of the declaration of capital (exhibit P/4) which was the bone of contention in this appeal, it seems to me that learned Defence Counsel, and following him learned Deputy State Attorney, did not sufficiently distinguish between the confession rule and the privilege against self-incrimination.

 

            The basic argument of Mr. Shimron was that the appellant submitted the declaration of capital to the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, 1947, a request behind which lay the criminal sanction of sec. 76(1). For myself, it is immaterial that this criminal sanction was not made express in the notice of request sent to the appellant, and I am ready to assume in his favour that he submitted return P/4 out of necessity, in order only to abide by his statutory obligation under sec.45(1) and with knowledge of the law, including sec. 76(1). Nevertheless that does not amount to "compulsion by some one in authority" in the sense of sec. 9 of the Evidence Ordinance but "compulsion under law." The only question that can arise regarding this kind of compulsion is whether the law goes so far as to compel a person to incriminate himself or leaves the door open to the privilege against self-incrimination.

           

3. The principle behind the privilege against self-incrimination - "one of the most sacred principles in the law of this country" (Lord Eldon in Ex parte Cossens (11) at p. 540) - is a Common Law principle which was given "constitutional" status by the Fifth Amendment in the United States ("No person...shall be compelled in any criminal case to be a witness against himself"). The source, it appears to me, lies in Jewish law, in the rabbinical formula "no person can declare himself a   criminal (rasha)" (Sanhedrin 9b). The Latin aphorism - "Nemo terretum se ipsum accusare (or predere)" - is an almost literal translation and attests to the Jewish source. (See the passages cited by Riesenfeld, "Law Making and Legislative Precedent in American Legal History", (1949) 33 Minn L.R. 103,118, reproduced in McCormick, Law of Evidence (1954) p. 253, notes 9-10. See for the history of the principle in England, Wigmore on Evidence (McNaughton Rev. (1961) ) vol. 8, para. 2250). With the reception of the substance of the Common Law in this country, through article 46 of the Palestine Order in Council and sec. 11 of the Law and Administration Ordinance, 1948, the Jewish law principle returned to its original source.

 

            One must indeed distinguish carefully between the embracing meaning of the principle in Jewish Law, that a person cannot incriminate himself by his own utterance, and its more limited meaning in the Common Law, a person is not required to incriminate himself. "A person is, vis-a-vis himself, a relative, and no person can declare himself a criminal," (Sanherdin. 9b) is explained by Rashi ad locum: "That is to say, he is not incriminated by his own evidence since Torah disqualifies a relative as a witness."

 

4. For all the close similarity of the self-incrimination privilege and the confession rule and in spite of their possible overlapping in certain instances, a basic difference exists between them: see R. v scott (9) at pp. 169-70, and Wigmore on Evidence, ubi supra, para. 2266.

(a) The "confession" test under see. 9 of the Evidence Ordinance is directed to examining the means by which the confession was obtained from the defendant. If these means were "promises or threats" by "a person in authority", then

"it would be dangerous - so the legislature assumes - to rely on it as being truthful... The true reason for excluding confessions not made 'voluntarily' is based on the consideration that it would be dangerous to rely on it for that reason as trustworthy evidence."

(Agranat J. in Jarboni (4) at pp. 155 3-54). (See, however, the reservations of McNaughton in Wigmore on Evidence (McNaughton Rev.) vol. 8, para. 2266, about this reason (which was that given in Wigmore 3rd ed.) in view of recent American decisions: Spano v New York (22) and Blackburn v Alabama (23) ).

 

            On the other hand the self-incrimination privilege is not based on fear of the untrustworthiness of incriminating evidence. The reason (or one of the important reasons) for it is that it is immoral - and even inhumane - to place a person in the "legal dilemma of either incriminating himself by a true admission of the crime he committed or committing a new crime by refusing to give evidence or by giving false evidence." (Cf. Williams, The Proof of Guilt (3rd ed.) p. 53). In this situation, according to the Common Law, a person may refuse to answer a question to which otherwise he would be obliged under law to reply truthfully. (See Wigmore on Evidence para. 2251, and particularly pp. 316 - 18).

           

(b) By requiring the prosecution to produce "evidence of the circumstances in which (the confession) was made" see. 9 is concerned with the factual question of whether any pressure or inducement was exerted by a person in authority to bring about the confession. Self-incrimination, by contrast, does not come from any "means" used on the defendant or accused to move him to confess the alleged offence but from the very "dilemma" of that person who knows in his heart - and perhaps alone knows without any one else suspecting him - that a true answer to the lawful question put to him might criminate him of the offence he has committed. The privilege therefore - as against the confession rule - obtains in cases of "legal compulsion" that would otherwise exist, that is, when the law (or the person acting in its name, a judge or authorized investigator) requires or "compels" the person being examined to give full and accurate answers to questions lawfully addressed to him. In this situation, and only in this situation, does the question arise - and it is a question of law - whether in fact the law compels an answer even if it tends to be "self-incriminatory" or whether the person can insist on "the privilege" and refuse to answer questions which may expose him to the danger of a criminal charge.

 

(c) The stage of the proceedings at which the privilege may be exercised varies from that at which the question of the admissibility of confession occurs. The privilege is to be claimed before the possibly incriminatory answer is given. A person possessing the privilege who answers a question without protest, even if it may incriminate him, has waived the privilege and his answer is admissible against him in every civil and criminal court: see R. v Slogget (12) and R. v Noel (13): Kenny Turner, Outlines of Criminal Law (17th ed., 1958) para. 590; Cross Evidence (2nd ed., 1963) p. 227: Wigmore on Evidence (McNaughton Rev.,) paras. 2268 and 2275.

 

            Only when the person, relying on the privilege, refuses to answer the question and is unlawfully required to answer it, will the incriminating answer be excluded as evidence against in any trial: R. v Scott (9): Kenny-Turner, loc. cit.; Wigmore, op. cit., para. 2270, p. 417 and the precedents in McCormick, op. cit. para. 127 notes (1) and (8); Cf. American Law Institute, Model Code of Evidence (1942), rule 232 and Uniform Rules of Evidence (1953), rule 38.

           

5. Accordingly, the privilege is only to be pleaded and the question of its application in a given instance is only to be treated on a refusal to answer a question which has been put or to produce a document which has been requested. Had the appellant here refused at the time to file the return of capital requested under sec. 45 (1) of the Income Tax Ordinance or to answer any of the questions appearing on the form of the return, he could have been sued under sec. 76 (1) which provides that "every person who, without sufficient cause,... fails to comply with the request of a notice given to him under this Ordinance" is liable to imprisonment and fine. At the trial, the appellant could have pleaded in defence that the self-incriminating privilege was "sufficient cause" for failing to comply with the request of the Assessing Officer, and in view of this defence the court would have had to decide whether in fact the privilege existed as regards a request under sec. 45 (1) of the Ordinance. There is no need to consider this question in the present appeal since the appellant waived the privilege (if any) by giving full answers to the questions set out in form P/4 and submitting a return of capital without contestation or opposition. In this regard, there are the direct precedents of Nicola v U.S. (24) and Hanson v U.S. (25) where it was held that persons liable for income tax, who delivered to the tax authorities upon request their books, documents and other information cannot subsequently rely on the Fifth Amendment in order to invalidate the use of this material as evidence against them in a criminal trial in which they stand charged for evasion of income tax. In Nicola v U.S. (24) it was said at p. 784 that the purpose of obliging a tax payer to hand over information is to enable the authorities to calculate the tax and verify its accuracy, and the tax payer cannot refuse to supply information and the question was whether he had waived privilege. The constitutional right, it was said, was intended for the benefit of the witness and if it was not claimed, he was deemed to have waived it. He could only claim the privilege from the Government agency when refusing to produce his books. It was too late to do so, after the information had reached the agency with his consent.

 

6. These grounds are sufficient for rejecting every plea against the admissibility of the return of capital. If the appellant possessed a self-incriminatory privilege, he had waived it. I should add that I can see no foundation in the plea itself of privilege regarding see. 45 (1) of the Income Tax Ordinance.

 

            In Israel (unlike the United States) there is no constitutional assurance of the privilege and the legislature is free to repeal or deny it. In R. v Scott (9) Lord Campbell said (at p. 170):

           

"Finally, the defendant's counsel relies upon the great maxim of English Law memo tenetur se ipsum accusare. So undoubtedly says the Common Law of England. But Parliament may take away this privilege, and enact that a party may be bound to accuse himself: that is, that he must answer questions by answering which he may be criminated."

 

            The question whether a law which binds the citizen to deliver information, documents and returns to the Government in matters defined by law compels him to incriminate himself or whether it leaves it open to him to claim the self-incriminating privilege is ultimately, in the absence of express provision, a question of statutory interpretation. At all events, in the absence of express statutory provision, a citizen who files a return (or other material as aforesaid) under lawful duty is clearly not privileged against the use of the material in evidence against him in a criminal trial. Not only is there no provision in the Income Tax Ordinance precluding the use of a return under sec. 45 (1) as evidence in a criminal trial of the person making the return for an offence under the Ordinance, but sec. 4 (2) provides the reverse:

 

"No person appointed under... this Ordinance shall be required to produce in any court any return, document or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Ordinance except as may be necessary for the purpose of carrying into effect the provisions of this Ordinance, or with a view to, or in the course of a prosecution for any offence committed in relation to income tax."

 

A distinction must be made between the "self-incriminating privilege" and the "immunity" from the production of returns in court. See. 4 (2) denies the immunity of returns made to the Assessing Officer under see. 45 (1).

 

            Sec. 45 is not primarily directed to the disclosure of offences against the Ordinance, but the authority of the Assessing Officer to request returns, including one of capital, is to obtain full information about a person's income. The immediate purpose of the section is fiscal, to ascertain a person's true income so as to collect the tax due from him under the Ordinance. Were the citizen given the "privilege" to refuse to answer questions likely to incriminate him of an offence against the Ordinance (like the one dealt with here, omissions of income from the annual return), the privilege would prejudice not only the task of proving the criminal offence (which is the function of the privilege) but also the carrying out of the fiscal purposes of sec. 45. Two interpretations only are possible of this section - one which enables the Assessing Officer to obtain full information about a person's income and accordingly to determine and collect the tax due, and also, if the return discloses incriminatory matter, to pass such matter on to the Attorney-General for taking criminal proceedings; and one which permits a person receiving a notice under the section to refuse to answer incriminating questions and accordingly also to prevent the Assessing Officer from obtaining full information about his income, that is, to prevent the due tax to be fixed and collected. Of these two interpretations, the first is to be chosen, for the second frustrates the purpose of the law.

           

            A similar question was dealt with in England in connection with income tax law in Commissioners of Customs and Excise v Ingram (14). Under sec. 20 of the Finance Act, 1946, every registrable person must keep records and accounts, and preserve and produce them to the Commissioners as required. Every merchant, importer, etc. is also required to furnish the Commissioners information relating to the purchase or import of goods and to produce the books, accounts or other documents concerning the goods, as may be requested. The Act provides penalties for non-compliance with any request. Under Sec. 14 of the Crown Proceedings Act, 1947, the Crown may apply in a summary manner for the delivery of any accounts, the production of any books or the furnishing of any information under the enactments relating to purchase tax. The Commissioners applied for an order against the respondent. Lord Goddard stated (at p. 929) that

           

"counsel for the defendants has argued that the court would not order the production of documents which may incriminate the subject. In my opinion, one cannot make any such limitation here. The very object of the Finance Act, 1946, in the sections which relate to the matter, is to give to the Crown the power of investigating a person's accounts and so forth to see whether he is defrauding the Revenue by not paying that which he ought to pay... (It) is quite a common-place of legislation designed to protect the revenue of the Crown, as it is realised that all the information must generally be within the knowledge of the taxpayer or the subject,... to oblige him to do certain things which may have the effect of incriminating him... It is said that when a man is called on under sec. 20 to produce his documents, his books, invoices or accounts..., he is entitled to take objection and say: 'I will not produce this one or that one because it may incriminate me.' It seems to me that that would be stultifying the whole purpose of the section, and the claim for privilege, which, as between subject and subject in an action, may be made, has no application to this class of discovery or production."

 

These reasons are equally applicable in the present case.

 

Appeal dismissed

Judgment given on June 30. 1964.

Full opinion: 
PDF icon Kariti v. Attorney General.pdf
Subscribe to RSS - Conviction