Evidence

 

In the Supreme Court

 

Crim.App. 8225/12

MCA (Criminal) 8239/12

 

Before:                        Her Honor Justice E. Hayut

                        His Honor Justice U. Vogelman

                        His Honor Justice Y. Amit

 

The Appellants in Crim.App. 8225/12

 

                                    1.         Jane Doe Co. Ltd

                                    2.         Jane Doe

 

The Applicant in MCA (Criminal) 8239/12

 

                                    Jane Doe (a minor)

 

                                    versus

 

The Respondents:

 

                                    1.         John Doe

                                    2.         The State of Israel

 

                                    Appeal against the judgment of the Tel Aviv-Jaffa District Court (His Honor Judge Z. Kapach) in Other Appeal (OA) 46171-04-12 of November 6, 2012

 

Date of session:           25th Tevet 5773; January 7, 2013

 

                                    Adv. Shira Brick Haimovitz; Adv. Einat Berg-Segal

                                    on behalf of the Appellants in Crim.App. 8225/12

 

                                    Adv. Shira Dorfman-Algai

                                    on behalf of the Applicant in MCA (Criminal) 8239/12

 

                                    Adv. Avi Vacnich; Adv. Uri Shenhar

                                    on behalf of the First Respondent

 

                                    Adv. Itamar Gelbfish

                                    on behalf of the Second Respondent

 

 

Judgment

 

Judge U. Vogelman

1.The Respondent, a therapist by profession, was arrested on suspicion of committing an indecent act on the Applicant in MCA (Criminal) 8239/12 (hereinafter – the “Applicant”), a minor born in 2006, while he was treating her. The Magistrate Court extended his arrest by two days and granted an order prohibiting publication of any details of the case (hereinafter, “gag order”). Immediately after the arrest, a minor story was published on an Internet news site that reviewed the main suspicions without mentioning the Respondent’s name. The story was removed immediately after the gag order was granted. On completion of the investigation against the Respondent, the Prosecution decided not to prosecute due to lack of sufficient evidence. The Applicant filed an appeal against this decision with the State Attorney. At the same time, the Applicant filed a petition with the Magistrate Court to remove the blanket gag order so that details of the case would be published without the Respondent’s name or any other identifying detail. On April 4, 2012 the Magistrate Court (His Honor Judge T. Uziel) granted the Applicant’s application. The Respondent filed an appeal against this decision. On the filing of the appeal, the District Court (His Honor Judge Z. Kapach) decided to stay implementation of the Magistrate Court’s decision until otherwise decided, and from time to time granted continuances finding that the question whether or not the Respondent would be indicted was material to its decision. In the meantime, the Applicant’s appeal against the decision not to prosecute t was allowed, and the investigation was reopened; a supplemental investigation took place and the Respondent was questioned again. Ultimately the District Attorney once again decided to close the case due to lack of sufficient evidence. The Applicant’s appeal of the second decision is still pending before the State Attorney. On October 25, 2012 the Appellants in this case—a media company and a reporter who works for it—filed an application with the District Court to join the Respondent’s appeal against the decision to allow publication, and expressed their support for the Applicant’s position.

2.On November 6, 2011 the lower court heard the appeal by the Respondent (who was referred to as “appellant”). His appeal was heard together with the Appellants’ application to join the proceedings. The Court reiterated the considerations outlined in the case law for granting a gag on a suspect’s name or investigation detail pursuant to section 70(e1)(1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, the “Courts Act” or the “Act”), and held that in the circumstances of this case the scale tips in favor of prohibiting publication of all the case’s details. The Court emphasized that since according to the investigation and prosecution authorities there was insufficient evidence to prosecute, there was no public interest in exposing an incident that might not even occurred. The lower court also held that publicizing the incident as an example in an article written to draw attention to signs of distress displayed by children undergoing therapy, such as the Applicant, does not justify publication since an article can be prepared without detailing a concrete incident; and that the argument that publication might result in the filing of additional complaints where the State has not applied to allow publication for such purpose must be rejected. The Court added that there was concern that the motive of the Applicant’s family was revenge against the Respondent and that, in view of the serious nature of the accusations against the Respondent, there was no doubt that grave and irreversible harm would be caused him if his identity was revealed. Finally the Court held as follows:

“We are living in the age of the Internet. The physical town square has long since disappeared, and has been replaced by a virtual square. If publication of the incident, the occurrence of which is itself in doubt, is permitted, connecting the Appellant to the incident would be easy, as the appellant works in a limited professional circle and because there are many ways to directly or indirectly circumvent the gag order prohibiting publication of a name. This can be done through anonymous comments (talkbacks), forums, Facebook, Twitter and more.

After hearing what the minor’s family has to say about the Appellant, as aforesaid, my concern, which I harbored from the outset, that his name will be linked to the incident in roundabout ways, has grown” (pages 7-8 of the judgment) [emphasis in the original].

The proceedings before us are about this decision.

The parties’ arguments

3.The Appellants argue that the District Court was not authorized to grant a gag order prohibiting publication of all the details relating to the incident. According to them, section 70(e1)(1) of the Courts Act authorizes the Court to prohibit publication of a suspect’s name or of another investigation detail, but not both together; and in any event it does not authorize the Court to impose a gag order on the details of the entire case. It was also argued that the Court erred in disregarding the potential harm to the Respondent that would result from publishing details of the incident without identifying details; and it erred in allowing all details to be published since the case was closed, as well as in determining that the public has no interest in publishing the incident’s details. The Appellants add that the gag order goes against the principle of public hearings and proceedings and the public’s right to know; that the motive for publication should not have been considered; and that even in the Internet age, publication of legitimate information should not be prevented solely because of the theoretical concern that privileged information would be exposed on-line.

The Applicant’s arguments mostly overlap with the Appellants’ arguments. The Applicant adds that the Court erred in determining there was concern that the family would expose the Respondent’s name on the Internet in a roundabout way. According to her, had her family wished to do this, it would have done so while the Respondent was under arrest since at that time the arrest was published as a story on the Internet, without his name.

The State—which was not a party to the proceedings in the lower courts—joined the proceedings before us, and it supports the position of the Appellants and the Applicant.

4.The Respondent objects to publication. First of all, he argues that the Appellants filed an appeal with this Court when they should have filed an application for leave to appeal; and that their appeal should be dismissed for this reason alone. With regard to the application for leave to appeal filed by the Applicant,, the Respondent argued that the appeal does not establish cause for granting leave to appeal to this Court as a “third round.” Substantively, the Respondent argued that the Appellants and the Applicant concealed from this Court the fact that the Applicant’s father serves in a managerial position in the First Appellant, and these proceedings are thus tainted by a lack of good faith; that the Applicant’s parents wish to misuse the investigation material, which was sent to them for their review solely for the purpose of filing an appeal, by publishing its contents in a newspaper; and that the motive of the Applicant’s parents for publication is an attempt to exert pressure on the Prosecution to allow the appeal and thereby prejudice the Respondent. The Respondent further argues that the harm he will suffer as a result of the publication is grave. According to him, the circles close to the case who have general knowledge will be able to identify him in publications about it. The publication would make the case the “talk of the town” amongst his professional community, which would want to know which male therapist is involved, and since there are few male therapists his name would shortly be leaked to the general public, or at the very least to the public interested in therapy such as he offers.

Discussion and Decision

5.We will first comment on the legislative framework relevant to our discussion. Though currently the District Attorney’s position is that there is insufficient evidence to substantiate reasonable prospects of a conviction and therefore the Respondent should not be indicted, an appeal is pending against this decision. The two courts before us, as well as the litigants and the State, have all assumed section 70(e1) of the Courts Act, which refers to a “suspect” as defined in section 70(e2) of the Act as “someone against whom a criminal investigation has been commenced” applies. I accept this assumption because in appeal proceedings there is  de novo review of the matter by the entity in charge of the administrative authority which made the decision. Within the boundary of this review, the entity hearing the appeal steps into the shoes of the entity which gave the decision subject to the appeal and exercises wide and independent discretion in its stead. Accordingly, even though we should keep in mind for the purpose of these proceedings that a decision by the District Attorney not to prosecute the Respondent because of insufficient evidence still stands, so long as the administrative proceedings have not reached a final decision; there is no impediment to seeing the Respondent as “someone against whom a criminal investigation has been commenced” and to trying his case according to the said legislative framework. I therefore do not address the conditions for a gag order regarding the details of an investigation against after  a decision not to prosecute and the objection proceedings against that decision exhausted.

The procedural level: the media’s appeal—by right or with leave?

6.The Appellants appealed against the District Court’s judgment. Were they entitled to do so, or does their appeal require application for leave? On January 18, 2012 the Courts Act (Amendment No. 69), 5772-2012, Book of Laws 122, came into force, which addressed gag orders on investigations and legal proceedings. The beginning of section 70(e1)(1), together with sections 70A(a) and (b) of the Act, provide that a Magistrate Court may prohibit publishing the name of a suspect that has yet to be indicted, or of any other investigation detail, as long as the conditions below are met. As a rule, the Court will impose a gag order under this section pursuant to a suspect’s application (hereinafter, “application for a gag order”). Once the Magistrate Court has imposed a gag order, anyone wishing it be revoked, including the media, may submit an application to the same Court (section 70C(a) of the Act) (hereinafter, “revocation application”). The Respondents in the revocation application will be the suspects, along with any person who was a party to the application for a gag order (section 70B(a)(2) of the Act). Section 70D of the Act regulates appeals against the Magistrate Court’s decision on an application for a gag order or revocation application: there is a right to appeal against either to the District Court, with one judge presiding (sections 70D(a)(1) and (3) of the Act); a judgment on appeal against such decisions may be appealed with leave to the Supreme court, which will hear it before a single judge (section 70D(b) of the Act). Section 70E of the Act authorizes the Minister of Justice, with the Knesset’s Constitution, Law and Justice Committee’s approval, to regulate applications for a gag order or publication, as well as the procedures for appeals and applications for leave to appeal against decisions on such applications. As of this judgment, the sub-legislature has yet to regulate. 

1.Thus, the proper way to revoke a gag order granted under section 70(e1)(1) of the Act is to submit an application with the Magistrats Court that granted the order. However, what is the proper procedure where the Magistrate Court has revoked the order, an appeal against the revocation is pending before the District Court, and a third party, including the media, which was not a party to the original revocation application wishes to argue regarding the order’s revocation? In my view, the third party should submit a joinder application with the District Court in the pending appeal against the Magistrate Court’s decision, as was done in this case. To be sure, the matter in the District Court is a first appeal. Another second appeal with this Court is a “third round” in the entire proceeding, and therefore leave [to appeal] must be granted (compare: MCA (Civil) 4511/05, Bat Yam Municipality v. Ganei Yafit Building & Investment Co. Ltd (July 17, 2005); ALA (Civil) 3385/08, Market Place Systems Ltd v. Teletel Communication Channels Ltd, paragraph 12 (September 25, 2008)). The same result is warranted under the framework that existed before the Amendment to the Act (see ALA (Criminal) 2741/96, Galanti v. State of Israel (April 17, 1996); MCA (Criminal) 424/06, Amar v. Channel 10 News Ltd (February 2, 2006)). Accordingly, contemplating whether the Amendment to the Act applies in our case (here, it should be noted that the first decision of the Magistrates Court,which placed a gag order on the details of the entire case, was given before the Amendment came into force) is unnecessary. 

2.It emerges then that the Appellants filed an appeal without having the right to do so. The question therefore arises how one should treat this appeal: can it be converted into an application for leave to appeal, or should it be dismissed for having been submitted without a right to do so? The answer to this question might be influenced by another: since no regulations have been promulgated with regard to the procedure, should this appeal be governed by the Civil Procedure Rules, 5744-1984, or by the provisions of the Criminal Procedure Act [Consolidated Version], 5742-1982? Insofar as the appeal is heard as a civil proceeding, the rule is that the appeal cannot be converted into an application for leave to appeal (see, for example, Civ.App. 8154/03, Altori v. Arieh Israel Car Insurance Co. Ltd, paragraph 8 (August 15, 2005); Civ. App. 4540/04, Matach – Educational Technology Center v. Orbuch (September 14, 2006); however, see Civ.App. 2201/07, Choninsky v. Atlantis Multimedia Ltd, paragraph 14 (February 2, 2009)). Insofar as the appeal is heard as a criminal proceeding, the question whether it may be converted into an application for leave to appeal has yet to be clearly answered in our case law.

Since in this case the Applicant filed an application for leave to appeal and since in any event we believe the matter’s importance justifies considering the application as though there was notice of appeal so that the issue will be determined on merits, we also saw no need to decide these questions, and we will leave them for future consideration. 

3.To conclude the procedural issues, we would emphasize that though the Applicant’s application for leave to appeal was considered by a panel of three, only one justice of this Court need rule on an appeal against a judgment of the District Court regarding the Magistrate Court’s decision to impose or revoke a gag order (section 70D(b) of the Courts Law)).

We now turn to discuss the appeal on its merits.

A gag order prohibiting publication of a suspect’s name or other investigation details

4.The issue of a gag order prohibiting publication of identifying details of crime suspects calls for balancing opposing basic principles and constitutional rights. On the one hand, there is the fundamental principle of public hearings and proceedings, a principle enshrined in section 3 of the Basic Law: The Judiciary, and in section 68 of the Courts Act. This principle dictates that as a rule, the details of judicial proceedings, as well as the identity of the litigants, shall be available to the public. This principle is consistent with the broad view that freedom of expression and the public’s right to know are basic principles in a democratic regime, designed to guarantee transparency and serving as a check on the integrity and adequacy of proceedings, so as to strengthen the public’s confidence in the judicial system (MCA (Criminal) 5759/04, Turgeman v. State of Israel, PD 58 (6) 658, 662-664 (2004) (hereinafter, “in re Turgeman”); MCA (Criminal)  5153/04, John Doe v. Yedioth Ahronoth, PD 58 (6) 933, 938 (2004); MCA (Criminal) 1071/10, John Doe v. State of Israel, paragraphs 6-9 (February 25, 2010); MCA (Criminal) 1770/10, John Doe v. State of Israel, paragraph 6 (March 5, 2010)). On the other hand, there are the rights to dignity, reputation and privacy; these too are basic rights in our system and are enshrined in sections 2, 4 and 7 of the Basic Law: Human Dignity and Freedom (MCA (Criminal) 1659/11, Stenger v. State of Israel, paragraph 6 (April 26, 2011); Civ.App. 1697/11, A. Gutman Architects Ltd v. Vardi, paragraph 12 (January 23, 2013) (hereinafter, “in re Vardi”); Civ.App. 751/10, John Doe v. Dayan-Orbach, paragraphs 75-79 of the judgment of Deputy President E. Rivlin, paragraphs 3-4 of the judgment of Justice Y. Amit (February 8, 2012) (hereinafter, “in re Dayan”)). A derivative of liberty rights is that unless prosecuted and convicted, everyone is presumed innocent (MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). There is no doubt that identifying a person as a crime suspect affects his reputation and privacy and might cause great and irreversible harm. “The publication of a suspect’s name during a criminal investigation, and before an indictment, might be extremely injurious, especially if at the end of the day the investigation concludes without an indictment. The negative image that sticks to a person once his name is published as a crime suspect might last a lifetime, even if at the end of the day the investigation did mature into prosecution” (the words of Justice Ayelet Procatzia in MCA (Criminal) 1071/10, paragraph 8; see also in re Turgeman, on page 670; Civ.App. 214/89, Avneri v. Shapira, PD 43 (3) 856-957 (1989); Yuval Karniel – “Publication of Suspects’ Names – Freedom of Expression versus a Person’s Reputation”, Human and Civil Rights in Israel – page 392 (Tali Ben-Gal et al Editors, 1992)).

5.The legislature instructed on the appropriate balance to strike between these opposing rights, holding that the principle of public hearings and proceedings and the public’s right to know are the rule, and that they shall yield to the need to protect a suspect’s reputation and privacy when exceptional circumstances exist (MCA (Criminal) 1071/10, paragraph 9; in re Turgeman, on page 663). Section 70(e1)(1) of the Courts Act, which details one of the circumstances, provides:

The court may prohibit publishing of the name of a suspect who has yet to be indicted or other investigation details if it believes that publication might cause the suspect grave harm and that preventing that harm is preferable to the public interest in publication; if the court imposes a gag order prohibiting publication of the name of a suspect who has yet to be indicted, the order shall expire upon the suspect’s indictment, unless the court has determined otherwise.

7.This section confers on the court discretion to prevent identification of a person who is suspected of criminal offences when the interest in protecting his reputation outweighs freedom of expression and the public interest in knowing. A court shall prohibit publication when two aggregate conditions are met. First, the suspect must show the publication might result in “grave harm” to the suspect. It should be emphasized that “ordinary harm” to the suspect is insufficient for the section’s protection to apply. “Publication that is not exceptionally harmful does not trigger the exception” (MCA (Criminal) 1071/10, paragraph 9; see also Civ.App. 2430/06, Yedioth Ahronoth Ltd v. Goldberg (June 4, 2006)). Regarding the question whether a publication might cause “grave harm,” a court will consider, inter alia, the following factors: the suspect’s personal circumstances, his physical and mental state, the nature of the suspect’s occupation and whether it involves contact with people, whether the suspect is a public figure (in which case the harm that publication would cause is greater), whether the suspect has small children who will be harmed by the publication, thereby increasing harm to the suspect, whether the suspect has a relevant criminal history (in which case the harm is diminished), the type and gravity of the offence, and the weight of the evidence gathered in the investigation (in re Turgeman, on pages 670-671).

The second condition is that preventing grave harm to the suspect should outweigh the public interest in publication. There are two levels to this public interest: the general and the particular. The general level concerns the fundamental principles of freedom of expression, public hearings and proceedings and the public’s right to know. According to (former) Justice M. Cheshin: “This aspect of public interest in publication requires neither proof nor argument. It is self-evident, a starting point for the journey of interpretation. It is a conclusive presumption—let us say, an axiom—that the public has an interest in the publication of court proceedings; court proceedings are in and of themselves interesting to the public and this interest exists in all proceedings” (in re Turgeman, on page 667). In order to determine the extent of the public interest in publication on the particular level – the Court will consider, inter alia, the nature of the acts that the suspect is suspected of committing; the extent to which the publication of the suspect’s name or details of the case might put the public on guard and influence its conduct (and satisfaction of a mere need for gossip does not fall within the scope thereof); whether a public figure is implicated, in which case the public has a greater interest in the case, if the publication can advance the investigation and uncover the truth (for example, if the publication might encourage other victims to come forward), the weight of the evidence gathered against the suspect, the anticipated date of indictment, and the extent to which details of the case were published prior to submitting an application for a gag order (ibid, on pages 667-668).

In my view, the two conditions listed in section 70(e1)(1) are inter-related and there is a reciprocal between them: the greater the public interest in publication, the more the applicant-suspect will be required to prove that the harm to him, both in terms of likelihood and in terms of extent, is greater. Once a likelihood of “grave harm” and its extent are proven to be very great, a greater public interest is necessary to dismiss the application for a gag order.

Preventing the suspect’s identification

6.As discussed above, the purpose of section 70(e1) of the Act is to prevent the result of grave harm to a person identified as a crime suspect. The section authorizes a Court to reach this purpose in two alternative ways: one is by imposing a gag order prohibiting publication of the suspect’s name. This prevents identification if, as a result, a reasonable person is unable to connect the published information to a specific person (in re Vardi, paragraph 18). However, this will not prevent identification if the publication includes other details that make it possible to identify the suspect (ibid, paragraph 21; Civ.App. 8345/08, Ben Natan v. Bakhri, paragraph 34 (July 27,2011)). Accordingly, the legislature expressly defined: “a suspect’s name . . .  including any other detail that might identify the suspect” (section 70(e2) of the Act). Hence, insofar as a court finds that the suspect’s identification can only be prevented by imposing a gag order on publishing details of the whole case, it may do so. The second way to reach the section’s purpose is to impose a gag order against publishing other investigation details, without prohibiting publication of the suspect’s name. This is intended for situations in which publication of the suspect’s name together with certain investigation details would not cause the suspect grave harm, but the publication of a specific detail—for example, suspicion of committing a particular offence among several offences—might cause the suspect grave harm.

7.“Another detail that might identify the suspect” is a detail that passes the “de-anonymization” test. According to this test, “if anyone has key details enabling them to perform ‘reverse engineering’, i.e. to attribute the published information to a particular person, these details must be considered to be identifying information” (in re Vardi, paragraph 22). The information that might lead to identification of a suspect can be divided into two types. One is information that could enable identifying an anonymous suspect. This means information that includes public, distinguishable and unique characteristics that make it possible for a reasonable person made aware of the case’s details for the first time through the publication to identify the suspect involved. The publication of such information might have similar consequences to publishing the actual name. A second type is information that could enable identification of a well-known suspect. This means information that enables a specific person, who has prior knowledge of the suspect or the case, to connect the publication to that information, and identify the suspect. The type of identifying detail, the first or second type, has implications for the extent of the harm the publication could cause the suspect. The premise is that publication that enables any person to identify the suspect (publication of the first type) might cause greater harm than publication that enables identification of the suspect by a more limited number of people (publication of the second type). However, this is only a starting point.

A gag order, the Internet and everything in between

8.The Internet has generated extensive changes in our world. Alongside its many advantages, the Internet poses significant legal challenges. There is no denying that the anonymity characterizing cyberspace somewhat facilitates the commission of torts, and sometimes the commission of criminal offences as well. Against this background, there are those who argue that the digital age has eroded the efficacy of gag orders; after all, the ways to violate it are many and simple. According to this approach, the reason for granting gag orders that permit publication of cases’ details without publishing the suspect’s name has weakened, because the order may be easily violated and the suspect’s identity would become common knowledge. This position must be rejected. The premise is that a court order is not merely a recommendation. Every person is obligated to strictly comply with an order—any order. Public order requires that court orders be complied with, and public interest mandates that the public should know that a court order is followed effectively and that court proceedings were not in vain (ALA (Civil) 3888/04, Sharvat v. Sharvat, PD 59 (4) 49, 58 (2005); the words of His Honor Judge S. Joubran in HCJ 8707/10, Hess v. Minister of Defense (February 3, 2011)).

9.We are not blind to virtual reality and the difficulties of enforcing the law in cyberspace. As is known, there are sometimes real technological challenges to identifying a wrongdoer operating in the shadow of the Internet, especially when that same wrongdoer makes intentional efforts to avoid detection (ALA (Civil) 4447/07, Mor v. Barak E.T.C. (1995) International Telecommunication Services Ltd, paragraph 10 of the opinion of Deputy President E. Rivlin (March 25, 2010) (hereinafter, “in re Mor”)). However, even given this, the concern that gag orders will be routinely violated should not be exaggerated. Contrary to widespread opinion, freedom of expression on the Internet is not absolute. Although the cyber community engages in many and varied activities, such as chat rooms and forums, blogs and content sites, users’ attention is focused primarily on central content providers. As a rule, these providers supervise the content published on their platforms. Moreover, communities that operate under the auspices of official content providers have trained managers who actually serve as regulators and make sure, inter alia, that the content complies with legal requirements. In fact, members of the community themselves might also act as regulators for the purpose of maintaining order. These are all important self-regulatory mechanisms, which might help ensure gag orders are followed on the Internet (see and compare: Karine Barzilai-Nahon and Gad Barzilai, “Actual and Imagined Freedom of Expression on the Internet: On the Abolishment and Rebirth of Censorship”, Quiet, Speaking! 483, 485, 491-497 (Michael Birnhack, Editor, 2006)).

One should not overlook that when a case is earth-shattering or expected to have a particularly wide impact that extends beyond the borders of the State, it is possible that in the Internet age an order will not prevent information about the affair from quickly becoming common knowledge. Accordingly, in those exceptional cases a different position might be necessary. Since, and as detailed below, this case is not one of those cases there is no need for me to lay down hard and fast rules about this category. The discussion below will not refer to it, and it shall remain open for future consideration. 

10.In addition to the self-regulatory mechanisms on the Internet detailed above, there are State law enforcement mechanisms. Law enforcement authorities must make a constant effort to keep up with technological developments so that offenders can be brought to justice, for which purpose they may use the tools the legislature has put at their disposal. We live in a law-abiding country and violating a court order has consequences in the real world. Thus, violating a gag order might carry various sanctions: anyone harmed by the violation may recover from the wrongdoer for breach of a statutory duty under section 63 of the Torts Ordinance [New Version]; the order’s violation might constitute a criminal offence under section 70(f) of the Courts Act; and violation can be considered contempt of court under section 6 of the Contempt of Court Ordinance, a section that authorizes a court to compel one to comply with an order through a fine or arrest. 

11.Indeed, one should not overlook the fact that publication of the details of an investigation in which there is public interest, even in general terms and without noting the suspect’s name, will garner greater and faster exposure than in the past. Deputy President E. Rivlin addressed this as follows:

“The Internet is the new “town square” where everything is shared. The new medium – cyberspace – is everywhere and is open to all. The tools it offers, including ‘chat rooms’, e-mail, surfing the World Wide Web (browsing) and social networks – make it possible to obtain and pass on information, ‘listen in’ on others’ opinions and voice one’s own. It is therefore a quintessential democratic means to advance the principle of equality and protect against government intrusion on freedom of speech through legislation. The keyboard is available to every writer, and tapping a ‘mouse’ takes the written word to all four corners of the Earth. The public does not need, as it did in the past, a platform provided by others . . . [a]ny member of the public may and can create a ‘newspaper’ of his or her own and say his or her piece in a blog” (in re Mor, paragraph 14; see also Asaf Harduf, “Online Crime” 134-135 (2010)).

The more interesting a case is and theof more individuals’ interests that may be impacted, the more reasonable it is to assume that a wider public will discuss it online. In the case of a publication that attributes to a person an offence that involves particular revulsion and disgust, the publication might rumors about the identity of those involved and raise suspicions against specific people.

12.We would again mention that an important and central characteristic of publication on the Internet is the possibility of anonymity. “The distinctiveness of talkbacks is in their anonymity, in the fact that they are posted in response to articles written by others and in the use of available platforms for voicing individual opinions. Involved therefore is an accessible and instant way [of communicating] that is free of geographical borders and frequently free of filtering and editing, not to mention—also anonymous” (in re Mor, ibid). It is undisputed that in today’s reality a person wishing to publish something online and remain anonymous may do so without any real difficulty, and that there are many people who exploit this anonymity and break the law under the assumption that it will be impossible to identify them and bring them to justice (See and compare: in re Mor, paragraphs 10-17; Civ.App. 9183/09, The Football Association Premier League Limited v. Peloni (May 13, 2012); the explanatory notes on the Draft Exposing the Identity of a Publisher of Online Content Act, 5772-2012, Government Bills 1376; Michael Birnhack “Exposure of Anonymous Online Browsers”, “Laws” on 51 (2010); Michael Birnhack, “Private Space – The Right to Privacy between Law and Technology” 299-300 (5771); Amal Jabarin and Yitzhak Cohen, “Importance of the Identity of Anonymous Internet Users – Institutional Viewpoint,” Law Research 28 7, 8-10 (2012)). Although the premise is that the online press in Israel, as well as anyone notified of a gag order, will comply with the order, one should not overlook the fact that there are many Internet sites—including   blogs, social networks and forums—that do not employ routine supervision, in real time, of everything published on them. Given this reality, it indeed is impossible to guarantee that a suspect’s identity will not be exposed on the Internet. Although it is possible to retroactively remove a prohibited publication published in Israel on the application of the suspect to the site after the fact, until the publication is removed from the site it might garner varying degrees of exposure.  

13.In sum, the exposure of an investigation with potential for public interest, together with the possibility of anonymously publishing information on the Internet, increases the concern that the suspect’s identity will be revealed despite a gag order. The greater the interest to the public, the greater the likelihood of the suspect’s identity being revealed and that the suspect will be caused “grave harm” as a result. That said, assessing this likelihood involves a great degree of uncertainty. Inter alia, it is difficult to assess whether the suspect’s name would indeed be leaked on the Internet and, as discussed, the presumption is that this would not necessarily happen. Factors to be considered are the period of time that would be required for a name to be removed,  the extent and pace of exposure until removal, and the expected harm to the suspect (i.e. the likelihood that the suspect’s identity is exposed coupled with the harm that might be caused if the identity is exposed).

14.When considering whether or not to prohibit publication of additional details, should a court take into account, inter alia, the possibility that a gag order will be violated, to the extent of imposing a gag order on the details of the entire case? In my view, this question should be answered in the affirmative. The object of section 70(e1)(1) of the Act is to enable a court to properly balance opposing interests—freedom of expression and the public’s right to know, and protecting the suspects’ reputation, privacy and presumption of innocence. An a priori finding that one should not include in the balancing equation the possibility that a gag order will be infringed—even when proved that this is a real possibility—will undermine the purpose of the section and the court’s role in its realization. In my opinion, it is incumbent on the Court to also consider the likelihood that publishing the details of a case under investigation even without mentioning the suspect’s name would lead to the suspect’s identification and cause “grave harm.” This likelihood and the consequent harm expectancy will in any event be considered on the merits and according to the circumstances, although one can point to, without exhaustion, the following guiding considerations: the extent of the interest the case might generate, the extent of the impact and exposure resulting from this interest, possible motivations of those who know the suspect’s identity to reveal it and whether the suspect has specified a concrete person with such motivation, and possible motivations of those who do not know the suspect’s identity to learn it.

15.To be sure, in the circumstances described above, it cannot be presumed that the identity of the person whose name and any identifying detail has been prohibited for publication will be exposed. Vague arguments regarding possible future violation of a gag order are not a good reason for refusing to grant the order to begin with. As emphasized, the argument that possible future violation of a gag order makes granting it superfluous must fail because the practical implications of accepting such an argument are that granting the order is futile, and that those applying for orders must cease making applications to the court—even if there their application is with merit. Possibility of infringement does not justify rejecting applications for orders where prohibition is warranted. If this is done in a democracy— “freedom and anarchy will become synonymous” (compare: Crim.App. 126/62, Dissenchick v. The Attorney-General, PD 17 169, 179 (1963)).

The premise is therefore that an order will be followed and that it is sufficient to prevent identification. A suspect applying to prevent publication of additional details to the point of a blanket gag order covering the details of the entire case must show that in their specific circumstances, there is a real concern—that is, not a vague concern—that the order will be infringed, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing this harm outweighs the public interest in publication.

From the general to the particular

16.The Magistrate Court set aside the blanket gag order that was initially imposed on the entire case, and instead granted a gag order prohibiting publication of the suspect’s name, place of residence, the location of his clinic, and any other detail that might result in his identification. In doing so the Magistrate Court assumed that publication of any of these details might result in identification of the Respondent, that he would be caused grave harm as a result, and that preventing the harm outweighs the public interest in publication. The Applicant and the Appellants did not object to this decision, and rightly so. In my opinion, the circumstances of the case fulfill the conditions tipping the scale in favor of prohibiting the Respondent’s identification. With regard to the first condition, there is no doubt that publishing the Respondent’s name would have caused him “grave harm.” “The disgrace that follows sexual offences against minors is very powerful, and it is one of the lowest offences that carry such disgrace” (in re Turgeman, on page 672). The potential harm to the Respondent’s reputation and to his privacy should he be identified is significant and obvious. This harm is intensified in light of the Respondent’s occupation and the harm that publication would cause to his livelihood. The Respondent has children who are not aware of the suspicions against him and the publication would also harm them thus increase the harm to him. The Respondent has no criminal history. Currently, the District Attorney believes there is insufficient evidence to establish reasonable prospects of a conviction and that the Respondent should not be prosecuted, even though this decision is subject to appeal before the State Attorney and thus is not final (and it should be emphasized that we are not expressing any position regarding the appeal’s prospects).

As to the second condition, concerning the public interest in publication, here too, the scales tip in favor of preventing the revealing of Respondent’s identity, as opposed to imposing a blanket gag order on the entire case. Although the act that the Respondent is suspected of committing is indeed serious, at this stage, the Prosecution believes that the weight of the evidence against him is not sufficient to warrant prosecution. The State did not argue that the publication of his name might encourage additional complaints against him. It did not try to suspend his license and he is continuing to work in his field. Nor was it argued that the publication of the Respondent’s name would advance the investigation and discovery of the truth. The Respondent is not a public figure. In these circumstances, the main argument for publishing details of the case is freedom of expression, public hearings and proceedings and the public’s right to know, as well as the public as a check on the investigating authority and the Prosecution. For such purposes, publishing the name is not essential.

17.Should a blanket gag order have been imposed on the details of the entire case? The premise is that the Respondent’s identity should not be exposed. In order to prohibit publishing additional details—to the point of imposing a blanket gag order (as ordered by the District Court)—the Respondent should have shown that had publication of other details not been prohibited, he would be occasioned “grave harm”; and that the interest in protecting his reputation and privacy in the circumstances of the case takes precedence over the public interest in knowing the details of the affair. I will now turn to review these conditions.

Did the Respondent meet his burden to show he would be caused “grave harm”? It is undisputed that since publishing the Respondent’s name (including any identifying detail) falls under the gag order, the likelihood that a reasonable person who is not acquainted with the Respondent would link him to the crimes of which he is suspected and identify him is inherently diminished. The likelihood that he will be caused “grave harm” is therefore considerably low. However, the Magistrate Court’s gag order does not eliminate the possibility of identifying the Respondent. The Respondent argues there is a real concern his name would be leaked on the Internet or that the rumor mill would point to him and cause him “grave harm.” As noted above, there is an inherent difficulty in predicting how matters will develop and one cannot avoid an assessment that is based on life experience, logic and common sense, with assistance from the guiding considerations delineated above.

18.Given the nature of the case—suspicion that a therapist who treats young children committed sexual offenses on a patient—it is reasonable to assume that its publication will generate interest among parents whose children are treated by a male therapist. It is possible that parents who learn of the case will try and find out who is involved and to make sure that the person treating their child is not the Respondent. It is also possible that therapists—who are not necessarily aware that a gag order has been granted—will be interested in who is involved; and hence the publication will garner exposure and create an impact. This discourse will somewhat increase the likelihood Respondent will be identified or suspected. It should also be noted that the District Court expressed concern that the Applicant’s family will expose the Respondent’s identity “in roundabout ways.”

19.Even though one cannot rule out the possibility that the Respondent’s identity will be revealed despite a gag order prohibiting the publication of his identity, it appears that the expectancy of grave harm that might be caused to the Respondent is low. I will clarify. Firstly, I am aware that the District Court believed that the statements of the Applicant’s family vis-à-vis the Respondent increase the concern “that his name will, in roundabout ways, be linked to the event.” However, I believe that this finding is insufficient to establish a real concern that the order would be violated. The reality is that until now the family has not violated the order, directly or indirectly. Secondly, the Respondent’s arrest and the nature of the suspicions against him were published in mainstream media for a short period of time until they were removed, but his identity, he agrees, remained confidential, and the publication did not result in the “violating” publications he fears. This shows that this case is not one of those “special and exceptional” cases I discussed above, and attests to the proper weight that should be given to concerns regarding violations of the order and harm expectancy. Thirdly and primarily, while a gag order prohibiting publication of any identifying detail stands, without identifying publication by any credible media outlet these publications would amount to nothing more than rumors or suspicions, even if there were violating “leaks.” It goes without saying that the harm that might be caused as a result is infinitely less than the harm caused by an identifying publication in the central media in the absence of a gag order.

20.Against the expectancy of grave harm, which is not high, one should weigh the public interest in publication. This balance leads to the conclusion that publication of the case’s details should be permitted, without the Respondent’s name or any detail that could lead to his identification. We discussed above the importance of public hearings and proceedings and the public’s right to know generally, and there is no need to repeat this. On the level of the particular, the following should be considered:

Firstly, publishing the suspicions against the Respondent and the symptoms that the Applicant displayed might increase parents’ awareness and vigilance about the type of harm that the Respondent is suspected of causing, draw parents’ and other therapeutic bodies’ attention to signs of distress minors display, and encourage parents to take reasonable precautions. Such publication might even facilitate public discussion on the issue. It is important and appropriate to respect the public’s right to know and to give the public the power to choose whether and how to respond.

Secondly, there is no need to elaborate on the fact that media scrutiny is a cornerstones of any democracy and that enforcement authorities are not immune to this, including in this case. In such context and as a matter of principle, timing should also factor. As a rule, one should aspire to enable the press to publish in real time concrete information about newsworthy cases on the public agenda, since “the democratic system of governance is sustained, and even dependent on a free flow of information about the central subjects influencing public life and private life” (HCJ 1/81, Shiran v. The Broadcasting Authority, PD 35 (3) 365, 378 (1981)).

8.To be sure, when considering the weight of the public interest one must consider that a decision to prosecute has yet to be made and that the District Attorney’s position is that there is insufficient evidence to do so. This information somewhat reduces public interest in publication, although it does not eliminate it (compare: Crim.App. (Tel Aviv District) 989/79, Borochov v. Yafet, DJ 5743 (B) 521 (1983); Uri Shenhar, The Law of Defamation 243 (1997); Eitan Levontin “The Authority to Limit the Publication of Suspects’ Names”, “Mishpatim” 30 249, 253-255 (5760); Raphael Bashan “The Journalist and the Public, Interview with the President of the Israel Press Council, Mr. Yitzhak Olshan”, Journalists’ Yearbook 7, 11 (5726)). One should also take into account that a decision on the State Attorney’s appeal is still pending, such that this result might change (of course without taking a stand). Accordingly, though the public interest is intertwined, inter alia, with the question whether the Respondent did in fact commit the acts of which he is suspected, the status of decisions regarding possible prosecution does not lead to the conclusion that at this time this case is of no interest to the public.

Before closing it should be emphasized that all this does not amount to taking any stand on the question of the proper balance should the Applicant’s appeal be dismissed, and the decision not to prosecute the Respondent becomes final.

Conclusion

21.From all the above, I believe that when balancing between the expectancy of “grave harm” that might be caused to the Respondent from a limited publication, which is, as clarified, not high, and the public interest in publication, publication of the case should be permitted, while omitting the name of the Respondent and any identifying detail. I therefore propose to my colleagues that the appeal be upheld and that the Magistrate Court’s order be reinstated.

___________________

 

Judge Y. Amit

I agree with the judgment of my colleague Justice U. Vogelman, and would briefly add and remark as follows.

1.As noted by my colleague at the beginning of his remarks (paragraph 5 of his judgment), the parties assumed that the Respondent qualifies as a “suspect” under section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “the Courts Act”) as “someone against whom a criminal investigation has been commenced.” Ex facie, it seems that section 70(e) refers to a “suspect” before a decision regarding prosecution is made, as emerges from the provision that a gag order will expire “on the filing of charges.” However, the Respondent in this case is not the usual “suspect” to whom the section refers; his status is that of a “former suspect” in that the investigation into his actions has been completed, a decision not to prosecute has been made, an appeal against the decision has been dismissed, and an appeal before the State Attorney against that decision is still pending. Nonetheless, since the parties referred to the Respondent as a “suspect” and since section 70(e) is the section most applicable to this case, I see no impediment to treating that section as the relevant statutory framework. In any event, and as noted by my colleague, this decision does not relate to the state of affairs after exhaustion of appeal proceedings against the decision to end the investigation without prosecution.

2.Section 68(b)(5) of the Courts Act authorizes a court to hold a closed and confidential hearing “in order to protect the interest of someone complaining or who has been accused of a sexual offence ” and section 70(a) of the Act provides that “a person shall not publish any information about a discussion that took place in a closed hearing without the court’s permission.” Hence, the Respondent is wondering how it is possible that had he been prosecuted and his status was that of “defendant,” the court would have been authorized to hold a closed hearing and grant a gag order, but the court has no authority to grant such order to protect a suspect, let alone a “former suspect.”

To this I would reply that the question is not one of authority but one of discretion. A closed hearing is not the final word and cannot be considered an “automatic” gag order; rather, a court must find that the conditions for a full or partial gag order exist (Civ.App. 2800/97, Lifson v. Gahel, PD 43 (3) 714 (1999); HCJ 6005/93, Eliash v Judge Shmuel Tzur, PD 49 (1) 159 (1995); ALA (Civil) 3007/02, Yoav Yitzhak V. Moses, PD 56 (6) 592 (2002); MCA (Criminal) 8698/05, Azulai v. State of Israel (October 19, 2005)).

3.I do not deny that the likelihood the Respondent’s identity will be exposed is considerable. His family and close friends are aware of the case and, as argued, it should be assumed that the publication would create a “buzz” about his work in therapy. Neither do I make light of the Respondent’s argument that the investigation and brief arrest were traumatic for him, and that the mere fact of publication will exacerbate his emotional injuries.

Additionally, I found it hard to see the great public interest in the case (the use of the word “case” relates to the proceedings in their entirety and does not derogate from the Respondent’s argument that so far as he is concerned there was no offence to create a case to begin with). Regrettably, sexual offences garner almost daily reports in the media, sometimes even sensationalist coverage at the beginning of news edition and in bold newspaper headings, such that I doubt publication of this case would increase public awareness and vigilance. I also wonder how the public might be disadvantaged if publication is delayed until the State Attorney’s decision on the Applicant’s appeal, if only to alleviate the Respondent’s concern that the publication is designed to pressure the Prosecution.  

4.Nonetheless, I believe publication should be permitted within the limits the Magistrate Court has established, such as being motivated by the following.

Firstly, the Respondent’s case has already been reviewed and considered by two mechanisms, and both decided there was no room to prosecute. Actually, given his current status of “former suspect,” someone who enjoys a somewhat “greater” presumption of innocence, the harm that might be caused because of the publication is less than that which would be caused to an ordinary “suspect,” whose case has only been brought before a court, for example, in the process of requesting an arrest warrant.

Secondly, the argument that as long as the appeal is pending with the State Attorney there is no case, and in any event there is no public interest, should be rejected. The public has an interest in reviewing reasons for the investigation and prosecution authorities’ decisions, and the public’s right to know does not necessarily depend on the result these authorities reach.

In essence, non-publication of identifying or other details should be distinguished from non-publication of the case’s existence itself. The Respondent referred to the matter of The News Company (Crim.App. 11793/05, The Israeli News Company Ltd v. State of Israel (April 5, 2006)), but that case also involved the blurring of identifying details only, and not a gag order on the entire matter, despite the concern that blurring would be ineffective in the complainant’s close circle. The legislation and the case law primarily deal with publishing identifying details of a suspect, an accused or complainant of sexual offences. Thus, section 70A of the Courts Act deals with an “application regarding publication of a suspect’s name” and section 70B deals with “parties to an application regarding publication of a suspect’s name.” The Draft Courts Act (Amendment No. 31) (Prohibition of Publication), 5761-2001, DL 496, states it aims to expand the Court’s authority [and] “. . . prohibit publication of a suspect’s name, even where [the court] found the publication could cause the suspect grave harm, while balancing the suspect’s interest against the public interest in publication [.]”

To be sure, the emphasis is on publishing identifying details about the suspect, as opposed to publishing the existence of the case or the proceedings. Thus, in In re Turgeman, in the context of a gag order prohibiting publication of a suspect’s name, Justice Cheshin left the question “what is the fate of a gag order where it has been decided not to prosecute John Doe” undecided. A blanket gag order prohibiting publication of the fact that the events even occurred constitutes a case in the shadows. This result is difficult to accept both considering normative outcomes for the public’s right to know and considering the practical possibility of losing information in the bustling Internet world.

And from another angle: ordinarily, when the police and the courts are not involved, there is no impediment to the media in publishing news about one’s claim that they or their relative was a victim of a sexual offence. It is difficult to accept that the Respondent should find himself in a “better” position than any other person merely because investigation and arrest proceedings were instituted against him, by a gag order prohibiting publication of news about the very existence of the proceedings.

5.Against this background, I concur with the outcome of my colleague.

 

___________________

Justice E. Hayut

I concur with the opinion of my colleague Justice U. Vogelman and her outcome. Nonetheless, I wish to make several comments.

1.As noted by my colleagues, the parties’ premise was that the Respondent is still presumed a “suspect” as defined in section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “Courts Act” or the “Act”) and that section 70(e1)(1), which authorizes the court to grant a gag order against publishing the name of a suspect who has yet to be prosecuted, or of another investigation detail applies. This was indeed the focus of the decisions in the appeal and consequently of the parties’ arguments. And rightfully so, as my colleague Justice U. Vogelman clarifies, since at this stage an appeal is still pending. Nonetheless, the Respondent’s status is closer to that of a “former suspect” (subject to the decision on the pending appeal). Hence, the question: what is the fate of someone who was presumed a “suspect” after a decision not to prosecute was made and the appeal proceedings were exhausted? In such a case, is a court still authorized, under section 70(e1)(1), to issue a gag order in respect to the Respondent and, under such circumstances, what is the status of a gag order granted while he was still a suspect? This issue was not raised and thus was not clarified in the decisions and submissions before us. Hence, I will not elaborate on this and will settle for mere preliminary thoughts.

2.The end of section 70(e1)(1) of the Courts Act provides that if a court grants a gag order against publishing the name of a suspect who has yet to be prosecuted “the gag order will expire upon the suspect’s prosecution.” A possible interpretation of this provision is that “from the positive follows the negative” and therefore when a decision is made not to prosecute a suspect and the investigation is closed, the gag order remains in force. This approach is consistent prima facie with the view that once a decision not to prosecute is made, the former suspect’s interest in protecting his reputation grows stronger, because, unlike a suspect who enjoys a strong presumption of innocence during the investigation stage, we are now dealing with someone whom law enforcement authorities have already decided should not be prosecuted. Accordingly, it can be said that once the investigation into a suspect has been closed, the balance between the public interest in public hearings and proceedings and the private interest of the former suspect whose details shall not be published shifts toward the private interest (for comparison regarding shifting the balance where there was prosecution: MCA (Criminal) 10731/08, Mitzkin v. State of Israel, paragraph 17 (January 4, 2009)). And indeed, in this context one cannot dismiss the approach that retroactive publication of a criminal investigation that ended might also harm the reputation of the former suspect and establish his negative reputation in the eyes of those who believe that “where there is smoke there is fire” (see and compare: MCA (Criminal) 1071/10, Moshe v. State of Israel, paragraph 8 (February 25, 2010); MCA (Criminal) 5759/04, Turgeman v. State of Israel, Piskei Din [Judgments] 58 (6) 658, 570 (2004)).

3.On the other hand, a gag order prohibiting publication is the exception to the rule regarding public hearings and proceedings and precedent instructs that  exceptions are only permitted under circumstances expressly listed in the Act (see MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). Accordingly, and in the absence of express authorization to the Court under the Act to prohibit publication of the name or investigation details concerning a former suspect, there is merit to the argument that a gag order granted during investigation under section 70(e1)(1) of the Act expires not only upon prosecution (according to the end of the section), but also when a decision not to prosecute is made and the investigation closed. Then the general rule is restored and the principle of public hearings and proceedings applies in full. That publication after a decision not to prosecute alleviates harm to the former suspect’s reputation because it is accompanied, naturally, by publishing the decision against prosecution supports this view (see Eitan Levontin “On the Authority to Limit Publication of Suspects’ Names”, Mishpatim 30, 249, 313-314 (5760)). In other words, contrary to publishing details about a suspect in the course of a criminal investigation where the suspect generally has limited tools to combat published suspicions, the mere decision not to prosecute provides the former suspect with a significant tool to protect his reputation from negative impact resulting from publication of an investigation that has ended. Since the gravity of potential harm to a former suspect’s reputation diminishes as a result of publication, the balance shifts toward the public interest in maintaining pubic hearings and proceedings and publication about an investigation and its details once closed should not be prevented. It goes without saying that according to this approach, the former suspect is still able to object by bringing defamation suits against any publication of distorted, partial, or misleading information about the investigation (see ibid).

Thus, this issue cuts both ways and though my opinion sways in favor of the second approach, I am not required to decide here and the statements that I have made in a nutshell do not exhaust the issue.

 

___________________

 

Decided in accordance with the judgment of Justice U. Vogelman.

 

Given today, February 24, 2013.

 

 

 

 

Justice U. Vogelman

Undoubtedly, information provided to a journalist with the intention that it not be published, and which could disclose the identity of the source, is protected by the journalist’s privilege discussed by President M. Shamgar in Citrin [1]. In my view, any other interpretation will render the principle of a journalist’s privilege, as outlined in Citrin [1], empty of substance. I therefore join in the determinations made in paragraphs 98 and 99 of my colleague Justice E. Rubinstein’s opinion, and in his holding that the state may petition the magistrate court to remove the privilege in accordance with the tests established in Citrin [1]. This does not mean that I take a position – in either direction – regarding the scope of the journalist’s privilege with respect to the handing over of information that will not necessarily lead to the exposure of the source of the journalist’s information, and I wish to leave that question for further review.

 

Decided per the opinion of Justice E. Rubinstein.

 

15^th of Kislev 5773

29 November 2012.

 

 

 

 

 

            Justice E. Hayut

I agree.

 

Appeal allowed.

11 Adar 5764.

4 March 2004.

 

 

 

 

 

 

Appeal allowed.

23 Kislev 5767.

14 December 2006.

 

 

Crim.A. 77/64

 

           

HIRSCH BERENBLAT

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[May 22, 1964]

Before Olshan P., Landau J. and Cohn J.

 

 

Evidence - admission of testimony of single witness - matters to be taken into account - Nazi and Nazi Collaborators (Punishment) Law, 1950, sec. 5.

 

 

            The appellant was convicted on five counts under the Nazi and Nazi Collaborators (Punishment) Law. 1950. On two of these counts he was convicted on the strength of the evidence of a single witness, found to be credible by the lower court. He appealed against conviction.

           

Held, granting the appeal, that in criminal matters, a court can convict on the evidence of a single witness without corroboration, after duly "cautioning" itself as to its credibility per se and considering its weight and relevance in the whole complex of evidence tendered by the prosecution with regard to the circumstances of the case and the defendant's participation therein. The best evidence of events that occurred many years prior to trial is written evidence, especially when recollection of these events are bound. as in the present case, to arouse profound emotion.

 

Israel cases cited:

 

(1)       Cr.A. 232/55 - Attorney-General v. Malchiel Greenwald (1958) 12 P.D. 2017.

(2)       Cr.A. 57/53 - Yitzhak Gold v. Attorney-General (1953) 7 P.D. 1126.

(3)       Cr.A. 22/52 - Ya'akov Honigman v. Attorney-General (1953) 7 P.D. 296,.

(4)       Cr.A. 119/51 - I. Paul v. ,Attorney-General (1952) 6 P.D. 498.

 

A. Rosenblum and E. Borstein for the appellant.

S. Kwart, Deputy State Attorney, and D. Libni for the respondent.

 

 COHN J.        The appellant was indicted in the TeI-Aviv Jaffa District Court on twelve counts, all under the Nazi and Nazi Collaborators (Punishment) Law, 1950. He was found innocent on seven of the counts, and convicted on five, namely counts 1,2,6,7, and 11. He appeals against conviction on these five charges, and I will consider them in the order in which they appear in the indictment.

 

            The first count charged the appellant with delivering up persecuted people to an enemy administration, an offence under section 5 of the Law. The details of the offence as specified in the indictment are as follows:

           

"On an unknown date in the summer of 1942, or thereabouts, during the period of Nazi rule in Poland which was an enemy country, in the city of Bendin, the appellant, in his capacity as chief of the Jewish police, was instrumental in delivering up persecuted people to an hostile administration, in that, together- with others, he collected and arrested tens of Jewish children from the municipal orphanage, dragged them by force from the building and delivered them up to the Gestapo, and assisted in their transfer to railway carriages which took them to the Nazi extermination camp."

 

            Section 5 of the Law imposes a penalty of up to ten years imprisonment on "a person who, during the period of the Nazi regime, in an enemy country, was instrumental in delivering up a persecuted person to an enemy administration."

           

            In its judgment the District Court had this to say on the issue:

           

And this is the story of Abraham Fishel, which we believe, although we are aware that we are relying here on the evidence of a single witness. This was during one of the "actions" in the summer of 1942. The quota for the "transport" was short of a few people, and so it was filled inter alia by taking children from the orphanage. The witness Fishel and other kitchen workers, who knew of the "action" that morning hid 50 to 60 children in the attic of the large building. These were children aged 8 to 13 approximately. The children were hidden in the attic for about haIf a day and the kitchen workers brought them water to drink. Then a group of Jewish policemen, with the accused at their head, went up and brought the children down by force. The witness, being a resident of Bendin, knew the accused and his family, the father of the accused, a barber by profession and honorary secretary of the HaKoach sport club, and the accused himseIf, who was known to the witness as a pianist. In order to bring the children down to the courtyard of the building, which had several floors, the Jewish policemen formed a chain. At the same time a number of the older children managed to scatter into the rooms and the floors from the top to the bottom. The other children were taken out according to the number needed to complete the "transport". Some of the children remained, and some joined the "transport".

 

There is no doubt that all this proved that the accused was instrumental in handing over these Jewish children to the enemy administration ... by bringing them down with force from their hiding place in the attic of the orphanage, with the Jewish policemen under his command, and attaching them to the "transport", which was being sent to extermination. Even though all the details of the offence were not fully proved, as specified in that count of the indictment, the facts that were proved and are mentioned above cover all the essentials of the said offence" (paragraph 12 of the judgment).

 

            It also appears to me that even though it was not proved that the appellant assisted in transferring the children to "the railway carriages which took them to the Nazi extermination camp" as stated in the indictment, the arrest of the children for the purpose of attaching them to the "transport" to complete the quota, constitutes being instrumental in their delivery to an enemy administration, as stated in section 5 of the Law.

           

            The only question before us as regards this count is whether there was indeed sufficient valid evidence on which to base the conviction of the appellant. It is true that a court, in any criminal case, may convict on the evidence of one person; and if the court has duly "cautioned" itself, as the District Court did in the case before us, the rule is that an appellate court will not interfere.

           

This is the rule and there are exceptions to it. I do not wish, and for the purpose of deciding this appeal I do not need, to determine exactly when an appellate court will depart from the rule and when it will not. In this appeal the reason and justification for so departing lies in the unique circumstances which exist regarding offences committed by persecuted people during the Holocaust and under an enemy administration defined in the Law. Let me say at once, that I cast no doubt on the reliability and integrity of the witness Fishel. The District Court saw and heard him and was deeply impressed by the pain and sincerity with which he testified; nor do I challenge the finding of the court that the testimony of this witness was, at least from the subjective viewpoint of the witness, completely truthful. But it seems to me that the court should have weighed the probative value of this evidence not just from the point of view of its credibility in itself, but as one link in the chain of all the other evidence, brought before the court and accepted by it as being credible, regarding the events of that period and in that place and the character and actions of the appellant. If the credible testimony of Fishel fits well into and is consistent with the other evidence, even if that other evidence did not corroborate it in the technical sense, the conviction of the defendant might reasonably be based on that testimony. But this is not the case when the credible testimony is exceptional and the other evidence raises doubts as to whether the testimony is based on misapprehension, even in good faith, or as to whether the recollection of the many different horrors which the witness saw with his own eyes or experienced became blurred and confused during the course of the twenty years that have passed since then.

 

            Twenty-three witnesses appeared before the learned judges, ten for the prosecution and thirteen for the defence. Most were from Bendin, and all were Holocaust survivors: virtually all were actual eyewitnesses to the events of those days of storm and terror. Aside fom Fishel, one other witness, Waxelman, to whose testimony I will later turn, was able to recount the story of the abduction of the children from the orphanage, whilst another witness, Arieh Li'or, heard of the incident by hearsay, apparently from Fishel himself. The other twenty witnesses, as it were, had never in their lives known or heard that the appellant, or someone acting under his orders, had arrested children in the orphanage and taken them to fill the quota of the Nazi "transport". Furthermore, numerous books and articles written on the destruction of Bendin were produced in the court, some written at the time of the Holocaust itself (the diary of the late Haika Klinger) and some written, as the court said in its decision (p. 2). "by survivors of the Holocaust soon after their escape from the Nazis' claws". Even those written afterwards were written a long time before the giving of evidence in court. This court has already said per Agranat J. that to prove the events that occurred many years ago written evidence set down during that period in question or shortly thereafter is preferable to evidence given under oath in court. (Attorney-General v. Greenwald (1) at 2088). And here, not one of the books or articles mentions or even hints of the incident of the abduction of the children from the orphanage.

 

In this instance, one cannot say "What hasn't been seen isn't evidence". These books and articles were written with the express purpose of relating the Nazi atrocities in destroying the Jewish community of Bendin, and the testimony given in court had the express purpose of telling about the deeds of the appellant during the period of the Holocaust in the city, both the good and the evil. A careful reading of all the testimony and exhibits discloses a description of the events that took place at the time to the Jewish community of the city, including many different incidents that in no way approach, in the cruelty of their execution and in the very nature of their evilness, the abduction of the children. It is simply not possible and it is inconceivable that an incident like this could have happened and been committed by one of the Jews, or even by the Jewish police, without the entire community knowing of it and being shocked, and without it being written of in the histories of the times.

 

Most of the books and articles were actually submitted as exhibits by the defense. There was good reason for this, for in many of them the appellant is praised (as commander or deputy commander of the Jewish militia) and in none of them is he condemned. One of the authors who testified at the trial as a witness for the prosecution said that he had wanted to set down in his book the good things the appellant did and not the bad things. This is not only untenable but clearly a lie. How was the appellant different from other Jews condemned in his book? How did their evil deeds set down in the book differ from the evil deeds of the appellant which were not? And if one is writing a history of the Holocaust how can some things be revealed and others concealed, all according to the tendentious leanings of the author?

 

Another witness who wrote an article which appeared in a memorial book on the Bendin community, explained his silence concerning the appellant's acts b the fact that the editors of the book shortened his article and did not publish all he had wished. This explanation is also unconvincing, if only because the witness was not requested and did not offer to present to the court those portions of his article which were allegedly not published at the order of the editors. Indeed, I have studied that memorial book and found in the witness' article and in the articles of many others, express accounts of shocking acts and cooperation with the Nazis committed by the Jews. and if the article had contained the story of the appellant's acts, there is no doubt that it would have appeared as written by the witness.

 

            Insofar as concerns the oral evidence, the Deputy State Attorney says that if it does not confirm Fishel's account, that is because the other witnesses were not asked or examined on this issue. After the prosecution had proved what it had to prove by the testimony of Fishel, there was no longer any reason or point to examine later witnesses on this matter. This answer does not appear to me to be any more reasonable than the answers of the authors. Firstly, the prosecution could not know if Fishel's testimony would be considered credible by the court, and out of pure caution it should have tried to prove the event in issue by other evidence as well. Secondly, dozens of other acts and issues, including some not even mentioned in the indictment, were the subject of examination by the prosecution of witness after witness. Why should just this event, the subject of the first count in the indictment and the most serious and horrible of all the crimes with which the appellant was charged, be so different that none of the witnesses who were likely to have known about it, even if only by hearsay, were questioned? And thirdly, and most important in my view, the prosecution knew very well from the start that it had no direct evidence to prove the allegation other than the testimony of Fishel, since, with the exception of the witness Arieh Li'or, who knew of the event only by hearsay as mentioned, no hint or suggestion of the allegation is to be found in all the statements taken by the police from the other witnesses. The prosecution could rightly assume that had they known of an atrocity such as this, they would have told about it in their statements to the police.

           

            It should be pointed out that the evidence of Fishel is surrounded by more than a bit of mystery, and I am not certain that the rights of the appellant were not prejudiced procedurally. Fishel did not give the police any statement, for the simple reason that the police did not know at all of his existence. On 1 December 1960, the police sent its file to the District Attorney and after counsel had read the statements of the witnesses that were in the file, he invited the most important of these witnesses to conversations with him, among them Arieh Li'or. In the conversations Li'or revealed to the prosecutor that someone by the name of Fishel could testify to the affair from personal knowledge, and one may assume that it became evident to the prosecutor there and then that Li'or himself could give only hearsay testimony. On 3 April 1961 the District Attorney wrote to the Jewish Agency in Ramleh and asked for the address of Fishel: Li'or had apparently said that Fishel worked in the Jewish Agency in Ramleh, or that he could be traced through the Agency. In any event, the Jewish Agency immediately replied that Fishel did not work for it and that it had no idea where he lived. On 28 April, 1961 the charge-sheet was delivered to the appellant, under section 5 of the Criminal Procedure Amendment (Investigation of Felonies and Causes of Death) Law, 1958, in which appeared a count which described the abduction of the children; the list of witnesses contained not only the name of Fishel, but his address "Jewish Agency for Palestine, Ramleh". When counsel for the appellant asked to examine the evidence in the hands of the District Attorney, under section 6 of the same Law, he did not find any evidence from a witness of the name of Fishel. He wrote to the District Attorney on 5 October 1962 and asked him to produce this evidence; to that he received a reply from the District Attorney that he would not use Fishel's testimony in the preliminary investigation and if it were decided to call him as a witness in the trial, he would first send the appellant the notice required by section 38 of the Criminal Procedure (Trial upon Information) Ordinance. On 13 November 1962 the preliminary investigation began. Arieh Li'or testified, and on the same day Li'or notified the District Attorney's office of the correct address of Fishel. On 4 January 1963 an indictment was preferred in the District Court (bearing the date 27 December 1962), with the name and address of Fishel listed as one of the prosecution witnesses. On 10 March 1963 that indictment was replaced by an amended one, and only then was a notice sent to the appellant in accordance with section 38, containing a summary of Fishel's story about the abduction of the children. On the following day, 11 March 1963, the trial began. Fishel appeared at the District Attorney's office and apparently gave his detailed statement on 22 March 1963, even though in his testimony in court he stated that he had known of the trial of the appellant a whole year before.

 

            These facts - which were confirmed by the Deputy State Attorney and were not brought to the attention of the District Court - give rise to great astonishment. The count concerning the abduction of children is already to be found in the charge-sheet. The only statement in the police file upon which it would have been possible to base this charge was the statement of Arieh Li'or (which was not presented to the court because of the opposition of counsel for the appellant), and I must presume that it was only possible to conclude from the language of the statement itself that the witness knew of the incident from hearsay. But after the District Attorney had talked with Li'or and got from him the name and (incorrect) address of Fishel, he probably knew already that Fishel was an eye­witness, whilst Li'or could only testify about what he had heard from Fishel. Otherwise, one cannot understand why Fishel's name and address (the incorrect one) was entered in the notice of indictment when it was possible to prove the count from the testimony of Li'or alone and impossible to know whether they would succeed in finding Fishel and what precisely he would say. Had the preliminary investigation been completed, and had counsel for the appellant not agreed to setting - down to trial before he had examined all the witnesses, it would have been clear at this stage that the testimony of Arieh Li'or did not constitute direct and certain proof of this count, and there are reasonable grounds to suppose that the judge who conducted the investigation would not have charged the appellant with this count, since the testimony of Fishel was not yet in existence and no one knew what it would be.

           

            If it be said that the giving of notice under the above-mentioned section 38 was enough to cure all defects, I would answer that such a notice is not similar to the statement which the witness gave to the police, insofar as concerns his cross-examination in the trial. And if the matter is of little importance concerning a witness who is not the only witness to a certain matter, it is of great importance concerning a witness whose testimony is the only evidence to prove a charge. The adversary system which we follow in trials regards cross-examination as outstanding for revealing the true face of lying witnesses, and this is where cross-examination is one in which the examiner will have at his disposal all the tools which the law permits to be used for this purpose. One of these tools is the test of a witness' consistency: by showing that his prior statements and declarations on a certain matter, which contradict his testimony (in court) or do not correspond to it, it is sometimes possible to induce the court not to place any faith on his testimony. These are things that any school-boy knows. Not only was the present appellant deprived of the opportunity of examining Fishel on his statement to the police, and thereby testing his consistency, but we found upon reading the judgment of the District Court that the learned judges rightly attached special importance to the differences between the statement of a witness to the police and his testimony in court, and the omission of a certain matter from the police statement was one of the reasons which led the court to refrain from attaching evidence or weight to the testimony of the witness on that matter in court.

 

            What happened was that the witness Reuven Waxelman, who was in 1942 a boy of 10, also testified in court about the abduction of the children from the orphanage by the appellant and his henchmen. In his statement to the police he did not mention this incident at all. It is true that the court saw fit not to rely on his testimony both because he was a child at the time and because contradictions were found between his testimony on other matters and most of the other testimony. But the court also pointed out that the fact that in his statement to the police, "he did not mention the facts concerning the first count in the indictment", and in the end it was "afraid" to rely on his testimony (paragraph 13 of the judgment). We see then that confronting a witness with the detailed statement which he gave to the police can lead to a situation in which the court will be reluctant to rely on his testimony; and the defect caused by denial of the opportunity for such examination is not always cured by the sending of notice under section 38.

           

            If this defect in the form of presenting the testimony of Fishel had stood alone, it would not have been enough by itself to move me to invalidate his testimony, but this defect is added to the astonishing isolation within which the evidence of Fishel stands, amongst all the other evidence received by the court, and in the absence of any reasonable explanation for the lack of any other admissible evidence as to the horrible incident which must have utterly shocked the entire community of Bendin, I can see no alternative but to give the appellant the benefit of the serious doubts which I feel. And these doubts are not lessened even assuming that the explanation given by the appellant in his testimony (that in fact an act of saving the children was involved that occurred several months later) is incorrect.

           

            It therefore appears to me that the appellant should be acquitted of the charge in the first count.

           

            On the second count as well the appellant was charged with an offence under section 5 of the Law which. as stated. prohibits being instrumental in delivering up persecuted people to an enemy administration.

           

            The second count in the indictment reads as follows:

           

In August 1942 ... when commander of the Jewish police in the city of Bendin, Poland, under German rule,  the accused was instrumental in the delivery up of persecuted people to an enemy administration by assisting the Nazis to concentrate all the Jews of the city in the sports fields of 'HaKoach' and 'Sermazia' for the purpose of conducting a selection; by keeping order. with members of the Jewish police, during the conduct of the selection; by seeing with others to the transport of thousands of Jews to the places of concentration and guarding of them so that they would not escape, and then to the transport of approximately five thousand Jews, including the aged, women and children under guard in the death carriages.

 

The District Court found the following facts:

 

"A few days before 12 August 1942 the Judenrat (Jewish Council) published notices in which the entire Jewish population of the city of Bendin, from aged to infant, was ordered to appear that day at two concentration points in the city, the grounds of the Jewish sports club 'HaKoach' and of the Polish sports club 'Sermazia', for registration. Propaganda was spread that this was only an operation to check certificates and registration, and that the Jews should wear their holiday clothes and should all appear as requested since disobedience would endanger all. Those who did not obey would not be permitted to remain in the region... In the early morning hours of 12 August 1942. the Jews of the city began to stream in large numbers towards the two above-mentioned sports grounds. According to estimates there were at that time thirty thousand Jews in the city of Bendin, and almost all appeared at these grounds, about fifteen thousand at each. The selection at the 'HaKoach' field was conducted by the German Kuzinski, and at one point people noticed that the field was surrounded by armed Germans. In the ground itself order was kept by the Jewish marshals who wore special hats and carried batons and by a number of Germans. The Jews were sorted into three groups: (a) holders of work permits, who were to be released; (b) people who appeared physically fit to be sent to work camps: (c) elderly people, children and the physically weak who were destined for expulsion, which meant extermination. According to the accused's testimony there was a fourth group of people whose condition required a second examination, for the purpose of reselection and sorting within the three above-mentioned groups.

 

            The task of the Jewish marshals under the command of the accused was to prevent the assembled people from moving from one group to another. Each group was assigned a special place on the field, and when people began to understand the significance of the selection and the dangers in store for those of the third group and to some extent also of the second, attempts began to be made to move from group to group, and the Jewish marshals together with the Germans who were in the ground prevented this by force. The orders to prevent movement from group to group were given by the accused to his subordinates, the members of the Jewish militia at the place, and this alone is enough to show instrumentality in delivering up persecuted people to an enemy administration... and this is regardless of whether there were any prospects that those who were attempting to move from group to group would thereby succeed in escaping their expected fate (Judgment, paragraph 3).

           

            It follows that it was not proved that the appellant assisted the Nazis in concentrating all the Jews of the city onto the sports grounds or that he saw to the transport of the Jews to the places of concentration and from there to the death carriages. The only particular of the offence under this count which remained was that of "keeping order (at the sports grounds], with members of the Jewish police, during the conduct of the selection." While keeping order he gave the order to his subordinates not to permit people to move from group to group.

           

            These facts were no longer in dispute before us, and the question which concerns us is a legal one whether these facts disclose a criminal offence. The District Court was silent and did not explain how it saw in the giving of orders by the appellant to his subordinates, the offence of being instrumental in the delivery up of persecuted persons to an enemy administration. One gets the impression, on reading the judgment which is clear and well reasoned, that the matter appeared obvious in the eyes of the court. What occupied the court in this matter was not the actus reus. but the mens rea alone. In my opinion, the question of criminal intent does not even arise since no criminal act was committed here.

 

            There are five elements to the offence under section 5 of the Law, namely:

           

(a)     being instrumental

(b)    in delivering up

(c)     a persecuted person

(d)    to an enemy administration

(e)     in an enemy country during the period of the Nazi regime.

 

            I will not dwell on the first, the third and the last of these elements; the third and the last because no doubts, whether of fact or interpretation, arise in regard to them; and the first, because the interpretation of the term 'instrumental' is not required here and I prefer to postpone it to another occasion. The second and fourth of these elements remain for consideration and I will deal with them together.

           

            "Delivery" may be by physical delivery or by giving information. Not only has the word "deliver" borne these two meanings in the Hebrew language, at all times but insofar as the danger to the life of the "delivered" person is concerned, and therefore insofar as the injustice contemplated by the Law, it makes no difference whether the delivery up was physical or whether only information was delivered which led to seizure of the person. The common factor in both modes of delivery is that the act of the "deliverer" was the cause (albeit perhaps not the only cause) for the arrest of the "delivered" person being seized by the enemy administration. This means that one who has already been seized by the enemy administration cannot further be delivered up to it. Physical delivery will be pointless, since the person is already physically in its hands, and the passing on of information will be pointless, since the information is of no use when the person is already in its hands. Such delivery is comparable to an attempt to commit a crime against something which no longer exists, such as the killing of a man who is dead.

            The Jews of Bendin who were concentrated on that tragic day in the sports grounds were all in the hands of the enemy administration, witness the fact that the grounds were surrounded by armed Germans and that not only members of the Jewish militia but German troops as well kept order. The representative of the enemy administration who conducted the selection held in his hands life and death; at his wish a person could be sent to one or another group and nobody could change his decision. If the appellant was not instrumental in delivering up the thirty thousand Jews of Bendin to the Germans, by having delivered them up at the sports grounds or having acted so that they should present themselves there, how and in what way was he instrumental in delivering them up to the Germans, after they were already there?

            The Deputy State Attorney says that the appellant was instrumental in delivering up Jews by having ordered his subordinates to prevent escape. I am prepared and obliged to assume that there indeed existed at the time of the "selection" a chance to escape, or at least a chance to move from group to group. If such opportunity existed I have no doubt that any act which was done to deny or restrict this opportunity is criminal and wicked and cannot be justified. But may we say that the prevention of escape from an enemy administration is equivalent to delivery up to that administration? I am afraid that in so doing we exceed by far the widest meaning which the word "delivery" bears. We are dealing with criminal offences, and the most serious of them, and it is an important and simple rule that a court may not extend their application by way of judicial interpretation beyond the meaning of the words which the legislator saw fit to use. It is indeed likely and as regards the expected danger to the persecuted person that there is no difference between his delivery to an enemy administration and preventing his escape from it; but whilst the delivery into its hands has been declared by law to be a criminal offence, the prevention of escape from it was not declared to be an offence;and there is no punishment except by law. Punishment by analogy or logical reference instead of under express provision of law alone is in the province of states which do not function under the rule of law and we have no truck with them. The danger that the perpetrator of a criminal and wicked act as aforesaid will not be brought to justice, is outweighed by the danger of a court imposing punishment not under clear and express law.

            The result is that there could not be here any delivering up to an enemy administration, when the Jews were at that moment already in its hands, and so there could not be any act of being instrumental in such a delivery.

           

            It appears to me, however, that the appellant also has another line of defence under section 10(b) of the Law, which states:

           

"If a persecuted person has done ... any act, such act ... constituting an offence under this Law, the Court shall release him from criminal responsibility -

...

(b) if he did ... the act with intent to avert consequences more serious than those which resulted from the act ... and actually averted them...."

 

            No one disputes that the appellant was also a "persecuted person" within the meaning of the Law, and his counsel argued that, in giving orders to his subordinates to prevent movement from group to group, the appellant intended to prevent the Germans from opening fire on the crowds and in fact did prevent this result. The Deputy State Attorney responded to this argument with two points. Firstly, he says, the appellant did not testify in the District Court as to any such intention, and accordingly how is it possible to impute to him such an intention when he himself did not testify to it? Only during re-examination, at the end of his lengthy and detailed testimony, did the appellant mention the possibility that the Germans would have fired into the crowd. But here as well he did not connect this possibility with any particular intention on his part which motivated him as it were to act as he did . Secondly, who amongst us can say that firing into the crowd by the Germans was indeed "a consequence more serious than those which resulted from the act" of the appellant? By preventing change from group to group people were sent to certain death, whereas it is possible that no one would have been injured by the firing of shots or that only a few would have been injured.

           

            According to the terms of section 10, the accused is to be released from criminal responsibility if the circumstances described in the section exist; it is not said that the accused will be released from criminal responsibility if he proves that those circumstance existed. In structure section 10 is similar to section 19 of the Criminal Code Ordinance 1936, and not to other sections (like section 18 of the Ordinance) which expressly place the burden of proof on the accused. And it seems to me that the rule laid down by this Court (Gold v. Attorney-General (2) at 1140) applies in this case. There Agranat. J. said:

 

the accused is presumed innocent and the prosecution must prove his guilt of the offence attributed to him beyond all reasonable doubt. This principle also applies, in our opinion, where the accused ... pleads justification under section 19 of the Criminal Code Ordinance, 1936, inasmuch as the legislator did not place on the accused the burden of proof as regards this plea, as it did with the plea of necessity (section 18) or insanity (section 13). It is true that if the evidence does not contain any support for the plea of justification, the prosecution need not confute it. But if the accused succeeds in pointing to testimony, be it found in the evidence adduced by the prosecution or the evidence brought by the defence, which raises reasonable doubt as to the truth of the said plea, the prosecution will not have proved its case, so long as it has not removed this doubt.

 

            Thus also in our case: so long as there exists in the evidentiary material some "support" for the defence plea mentioned in section 10, the prosecution has the burden of proving that the accused is criminally responsible and is not entitled to be released from criminal responsibility, and it makes no difference whether this support is based on prosecution evidence or defence evidence.

           

            Examination of the evidence shows, as stated, that the sports ground was that day surrounded by German soldiers armed with machine guns. In one of the books, the diary of the late Haika Klinger, it is even written that shots were fired by the Germans during the "selection". In another book, (by Rantz, in English) it is stated that not only was the ground surrounded by armed Germans but that so also were the special groups which were singled out to be sent to the camps. The appellant could and should have assumed that these Germans would not hesitate for even an instant to use their weapons and open fire, if any "mishap" occurred and all did not go as planned. The appellant could and had also to fear that if the Germans opened fire, they would shoot into the crowds without restraint or distinction and not bother about who fell and how many fell; these Germans were not suspected of being capable of firing only warning shots into the air. In these circumstances keeping order in the sports ground might have prevented more serious consequences, namely the opening of machine gun fire on a great crowd of people. Since there is nothing at all in the evidence to support the contention that the appellant intended to assist the Nazis in their acts of extermination (the District Court in its judgment expressly ruled out such an intention), it is reasonable that the appellant kept order with the intention of preventing the Germans from opening fire, that is to say, with the intention of averting that more serious consequence.

 

            In my opinion it makes no difference that the appellant himself did not testify as to his "intentions" in giving the orders in issue to his subordinates. Had he clearly testified today that his intention then in giving these orders was to prevent "the more serious consequence" of the Germans opening fire on the masses concentrated in the sports ground, I would have regarded such testimony with great suspicion, in case it was only hindsight. We must infer the relevant intentions from all the circumstances proved in court; and if this is so as regards criminal intention, either general or particular, in every criminal case, how much more is it so in regard to events that occurred over twenty years ago in an undescribably fearful situation. I can imagine that the order which the appellant gave to his subordinates, to keep order and not permit deviations from the groups, was an instinctive act in the face of the German machine guns. In such an instinctive act, no person can give an account of his intentions and by the same token later testify to these intentions. Even if, however, his acts were instinctive as aforesaid that does not prevent the existence of "intention" within the meaning of section 10 of the Law. One may perhaps go further and say that there is no stronger and better support for the existence of that "intention" than the instinctiveness of the reaction.

 

            The learned judges denied that the appellant had the intention spoken of in section 10(b) of the Law, attributing to him other intentions which, if I have understood their reasoning, do not correspond in their opinion to this intention. The appellant, they say in their judgment,

           

"thought mainly of himself and his family, and in the post of commander of the Jewish militia he saw, up to a certain stage immunity and protection for himself and his family, and employment which protected him from hard physical labour and provided the opportunity to ensure for himself and for the members of his family tolerable sustenance and living conditions in the hell of those days." (paragraph 9 of the judgement).

 

And they add

 

"The intentions of the accused - when he persevered in his position of authority as deputy commander of the Jewish militia in Bendin and accepted the task of keeping order over the Jewish who were to be concentrated on the 'HaKoah' ground, although he already knew... that the purpose of the concentration was "selection" and what the fate of the elderly and the children would be after that selection, and when he carried out the guard duty as he did in preventing movement from group to group - were not to avert more serious consequences, but were selfish" (paragraph 7 of the judgment).

 

            A psychological analysis of the motives of the appellant in joining the Jewish militia and in accepting the position of command over it is as it may be, and I do not wish to cast any doubt on its correctness. But as far as concerns the diligence of the appellant in fulfilling the task he had taken upon himself, I fear that the learned judges deceived themselves as to the freedom of choice of the appellant to carry on or resign. Be this as it may, in this matter the court confused the selfish motives of the appellant in joining the militia and his diligence in fulfilling his duties with his intentions in ordering his subordinates, as commander of the militia, to maintain order in the sports ground. The fact that the appellant reached his position and was diligent in it for selfish reasons does not negate or contradict his intention of averting more serious consequences for the Jews, by giving on that special occasion the orders in question.

           

            The second argument of the Deputy State Attorney was, as will be recalled, that there was no danger in this case of "a more serious consequence" within the meaning of section 10(b). Even if we assume he submits, that the Germans would have fired and victims have fallen, we cannot know whether the number of those who might have escaped from the group designated for extermination would have exceeded the number of fallen victims, had the militia not maintained order. The learned judges of the District Court also considered this aspect of the problem, and they ruled that the intention of the legislator was not, by granting release from criminal responsibility under section 10(b) of the Law, to justify the delivering up of a single Jew for killing, even to save other Jews. They put it as follows:

 

It appears to us that the intention of the Israeli legislator was to justify the commission of an act which would cause less serious damage to a persecuted person or persons, in order to avert more serious consequences for that persecuted person or even for individual persecuted people, but it did not intend to justify acts which caused serious injury to certain persecuted persons in order to avert serious injury to other persecuted persons. In other words, the legislator did not intend to justify being instrumental in the sacrifice of thousands of Jews, so as to prevent the same serious consequences for other thousands of Jews, and in such action there is no averting of more serious consequences, according to the spirit of the Law and the intention of the legislator." (paragraph 8 of the judgment).

 

            It is a basic principle of interpretation that the intention of the legislator is to be sought in the language of the Law alone. Where the language is clear and does not admit of two meanings, there is no need to search for the presumed intention of the legislator. The question of what is a more serious consequence and what a less serious one, is primarily an objective question; and objectively, it is obvious that the death of ten is a more serious consequence than the death of nine people and that the death of one is a more serious consequence than the injury of ten. But an objective standard such as this will only rarely be at the disposal of the court; usually it is not possible to measure the consequences, those which were caused and those averted, by such a standard, since both these results are conjectural. And since we are speaking of causing these consequences "with the intention" of averting others, it is reasonable to recognise in this matter a subjective standard as well, the standard of the person holding the intention: whether he caused one consequence, with the intention of averting another consequence which was, to the best of his knowledge, more serious, and whether he indeed prevented that more serious consequence, since then he is released from criminal responsibility, provided that the consequence which he intended to prevent indeed was and could objectively, which is to say reasonably, be considered, to be more serious than the other consequence. This is to my mind the correct interpretation of section 10(b) in its plain meaning. We should not read into it things that are not there, even if they seem to us to be morally or traditionally binding.

 

            If we apply the provision of section 10(b), in its fore-going meaning, to the actual facts before us, we find that the appellant did not know, and could not know. how many Jews would succeed in escaping death by moving from one group to another, or how may Jews would fall if the Germans opened fire. In the situation in which the appellant found himself, he had no objective opportunity or subjective experience with which to measure one against the other with regard to the number of victims, the consequences of maintaining order and of fire being opened. There was no objective opportunity, because it was impossible to know in advance how many would succeed in escaping, just as it was impossible to know how many would fall as casualties. And I am inclined to think that the appellant also had no subjective experience; but had he tried to estimate the two conjectured results. one against the other, I would decide in his favour if he thought that the number of those who would succeed in escaping from under the eyes of the German sentries would be small, whilst the number of those who would be killed with the opening of fire would be large. For me, any possibility that such would be the case is enough to place his intention within the framework of the statutory defence.

           

            It also appears to me that both objectively and subjectively, there is another reasonable standard with which to measure the two alternative consequences, namely, immediate death, on the one hand, and the danger of subsequent death on the other. A person who faces a choice of immediate death, even of a few, as against the danger of subsequent death, even of many, is entitled to say, "I chose the danger of death for many, so as to prevent the more serious consequence of the immediate death of a few". Even if the appellant knew that all those in the third group were designated for extermination, he could still say, "I will not abandon all hope for their being saved, for who knows what the day will bring, and one should never give up hope". In fact, many of those in this group were saved after nightfall, unlike the bloodshed of shots fired into a crowd; he who is wounded is wounded, and death is as certain as it is quick, and there is no refuge from it.

 

            Accordingly, release from criminal responsibility for his actions is available to the appellant, since there is support in the evidentiary material for his intention to avert the more serious consequence of the Germans firing into the crowd by giving instructions to maintain order in the sports ground, and in fact the more serious consequence was avoided by maintaining order.

           

            The sixth count charged the appellant with assaults in places of confinement, an offence under section 4 of the Law. The particulars in the indictment are as follows:

           

During the period of the Nazi regime, on unknown dates in 1942 and 1943, in Bendin, Poland, which was an enemy country, (the accused) whilst serving as commander of the Jewish police, assaulted without their consent a number of persecuted Jews, by seizing and pulling them by the hair, beating them and kicking them.

 

            Section 4 of the Law empowers Israeli courts to try assault (and other offences detailed in the section) every person who committed the offence "during the period of the Nazi regime, in an enemy country, and while exercising some function in a place of confinement on behalf of an enemy administration or of the person in charge of the place of confinement," provided the act was committed "in that place of confinement...against a persecuted person."

           

            It should be pointed out that the particulars of the offence in the indictment does not mention the place of confinement where the appellant committed the acts with which he is charged. This may be because the various acts were committed in different places of confinement. As counsel for the appellant did not raise any objection to this flaw in the indictment, I will also ignore it.

           

            All that remains in the judgment of the District Court of this charge of seizing and beating and pulling and kicking persecuted Jews is one incident in which the appellant pushed a woman by the name of Wilder, when she approached him in the kitchen of the Jewish orphanage and asked him to have pity on her (paragraph 16 of the judgment). The District Court ruled that this act of pushing was committed in a place of confinement within the meaning of the Law, since it occurred in the Jewish quarter of Bendin "in which Poles were forbidden to live and from which Jews were forbidden to leave except with special work permits". As a result, the Jewish quarter was a "place in an enemy country which, by order of an enemy administration, was assigned to persecuted persons", this being the definition of "place of confinement" under section 4(b) of the Law.

 

            The trouble is, however, that the orphanage, in the kitchen of which the pushing incident occurred, was not in the Jewish quarter but outside it (testimony of Eliezer Rosenberg, at p. 136). The Deputy State Attorney was forced to argue that the orphanage as such, at least during the days of the "actions", was a place of confinement within the meaning of the Law. I am doubtful whether the fact that the Nazis used to gather in the orphanage the Jews who were assigned for transport and send them from there on their way, is of itself enough to give the orphanage the character of a "place of confinement". But even if 1 accept that the orphanage was a place of confinement during the period of the "actions", I still fail to see how it is possible to say that the appellant exercised in that place some function "on behalf of an enemy administration or of the person in charge of that place of confinement". If the orphanage is to be considered a "place of confinement", simply by reason of Nazi actions on those special days, it is clear that the person in charge of that place of confinement was the Nazi authority responsible for these 'actions': and no one denies that the appellant did not exercise any function on behalf of the Nazis.

           

            Nevertheless, in my view, the term "place of confinement" in section 4(b) requires strict interpretation. It is not possible, for example, to consider a synagogue as a place of confinement, even though it was also assigned to persecuted people, possibly by order of the enemy administration. The synagogue was assigned to persecuted people not as a place of confinement but for the purpose of religious worship and other purposes valid in the eyes of the law. In my opinion "place of confinement" is only a place designated for persecuted people, by order of the enemy administration, for the purposes of confinement and persecution, as opposed to a place assigned to them for their own legitimate purposes.

           

            The incident of the pushing of Mrs. Wilder was also proved on the basis of one piece of evidence alone, the testimony of the witness Fishel who had also testified about the abduction of the children from the orphanage. The evidence of this witness, as stated, was believed by the court, and there is no formal objection to resting the appellant's conviction on the evidence of one person, especially a court which first cautioned itself as required. But it seems to me that the same considerations which led me to invalidate the conviction on the first count of the indictment apply here as well. If we look at all the evidence in its entirety, we get a picture of the appellant as a mild man, perhaps weak and selfish, but in no way violent or cruel. No proof or argument was put in that might explain the aggressiveness of the appellant particularly against this woman: and it is difficult to imagine that he would just pick on a woman in the kitchen of the Jewish orphanage, when and where only Jews were present, without reason or cause.

           

            The Deputy State Attorney referred us to the decision of this Court in the Honigman case (3) where Cheshin J. ruled that one may convict on the testimony of a single witness in a case like this, for the very reason that such abject cases of injury in Nazi places of confinement are engraved in the memory of those injured and never forgotten. But he was speaking of cases where the witness suffered the injury in his own person and not of injury to others. Furthermore, and this is crucial in my view, that only applies to an accused of whose cruelty and aggressiveness a great deal of evidence has been adduced in court, where only for a few isolated cases it is necessary to rely on uncorroborated evidence. It is otherwise here; no evidence was produced of the appellant's cruelty or aggressiveness, and the only case which concerns us rests on uncorroborated evidence which is extraordinary and does not fit in with the rest of the evidence produced.

           

            I would acquit the appellant on the sixth count as well.

           

            The appellant is accused in the seventh count of a further assault under section 4 of the Law. The indictment says:

           

During the period of the Nazi regime, on an unknown date in 1942, or at the start of 1943, in Bendin, Poland, which was an enemy country, the accused, while exercising the function of commander of the Jewish police on behalf of the Nazi regime, assaulted, near the orphanage, a persecuted Jew named Pikarski, aged 60 approximately, by beating him, with others, and striking him with a stick which he carried, in order to force him to enter an automobile.

 

            Here as well the place of confinement is not mentioned in the particulars but the location where the incident occurred, "near the orphanage" is noted. According to the testimony of the witness Arieh Li'or, whose testimony is also the only piece of evidence of this act, the incident took place in the street fronting the orphanage. I have already said that the orphanage, and obviously the street fronting it, were not in the Jewish quarter which the court regarded as a "place of confinement" as defined in the Law, and if it is still possible, and then only with difficulty, to regard the orphanage itself as a place of confinement, at least in the days when Jews were concentrated there, the street in front of the orphanage cannot be considered a place of confinement. For this reason alone there was no occasion to convict the appellant of this count.

           

            Furthermore, what I have already said regarding the uncorroborated testimony of Fishel applies to the uncorroborated testimony of Arieh Li'or, and in light of all the evidence which was produced in court, I cannot see any basis on which to convict the appellant of this offence on this uncorroborated testimony.

           

            The appellant is also charged with an offence under section 4 of the Law in the eleventh count, but the offence is not assault but forced labour (section 261 of the Criminal Code Ordinance, 1936).

           

            The particulars in the indictment are that:

           

During the period of the Nazi regime, in the period between May 1942 and the end of 1943, on unknown dates, in Bendin, Poland, which was an enemy country, in which the accused served as commander of the Jewish police, he unlawfully compelled persecuted Jews to work in forced labour camps, against their will, in the service of the Nazi regime.

 

The District Court found the following:

 

During the entire period from the beginning of his work in the militia, the Germans demanded that Jews be found for forced labour...and it was one of the tasks of the Jewish militia to search out for such people and to bring them in... While exercising a position of command, either as deputy commander or as commander, the accused decided which policemen would go around the houses to find people required for work, and he also commanded the policemen to search in cellars and attics for people whose names appeared on the Judenrat's work lists. Those that were arrested (the accused said "that we arrested")... were transferred to the work camps.

 

            As regards the conviction on this count, I am prepared to assume that all these actions were carried out in the Jewish quarter which according to the decision of the District Court was in the nature of a "place of confinement", and I am also prepared to assume that the appellant committed these acts by virtue of the position he occupied for the enemy administration, "to produce Jews for forced labour".

           

            But here the appellant may rely with greater force on the defence provided by section 10(b) of the Law. The Deputy State Attorney was also not prepared to dispute that had people not been sent to work camps, they would almost certainly have been sent to extermination camps. And it is likely that the appellant did what he did in order to avoid this consequence, which was much more serious in all respects, and in fact he did prevent the dispatch to the death camps of those Jews who were sent to the work camps, whether they were saved in the end or were killed. At the conclusion of his submissions the Deputy State Attorney declared that he would leave to our discretion the decision to uphold or quash the conviction, which is a polite and refined way of admitting that he cannot support the conviction.

           

            I therefore see no need to consider the argument of counsel for the appellant that in any event the criminal intent of the appellant under section 261 of the Criminal Code Ordinance, 1936, was not proved. The appellant is also to be acquitted on this count.

           

            These are the reasons which have led me to accept the appeal, to quash the decision and sentence of the District Court, and to acquit the appellant.

           

 OLSHAN P.              In law there is no bar to conviction of an accused for an offence under the law in question on the basis of the testimony of one witness. Therefore, in this regard one cannot find any fault in the judgment under appeal. The question is, however, should there have been a conviction on the basis of uncorroborated testimony, in the light of all the circumstance and all the evidence in this trial.

 

            In England, for example, it is possible in point of law to convict for a sexual offence on the basis of the uncorroborated testimony of one witness. Nevertheless, considering the circumstances, and in this case the nature of the offence, a principle, as it were, has grown up that corroboration is desirable, and jurors are always warned of this.

           

            The question then is when, in trials under this Law, is corroboration required to found a conviction and what circumstances justify this requirement, which weighs heavily on the prosecution upon whom rests the burden of proof? A further question is why did the legislator not prescribe this requirement as an express provision of the Law instead of leaving the matter to the discretion of the court?

           

            The Law in question embraces in fact two categories of accused: (a) "persecutors" - belonging to an enemy organization, as defined in section 3 of the Law, who committed offences against persecuted people and (b) "persecuted people" - the victims of the "persecutors", who committed offences against other persecuted people.

           

            The legislator did not see fit to fix a rigid standard concerning the amount of proof required for each category of accused dealt with by this law. When the accused belongs to category (a), that is, there is no dispute as to his membership in an enemy organization the purpose or one of the purposes of which was to carry out acts of extermination against persecuted persons, the very fact of his membership in the enemy organization is itself a blot against which the testimony of a single (credible) witness to the act may be regarded as more certain. But when the accused is of the second category, his belonging to the camp of the persecuted is certainly no blot; when the alleged offence is proved against such an accused by only one witness, manifold caution is required in the nature of things, as will be explained below, and sometimes it will be dangerous to convict on the evidence of one witness, however credible.

           

 Nevertheless, even in case of this type corroboration is not an absolute condition, since it is possible that in cases of this type as well, the evidence as a whole (aside from the testimony of the single witness who testifies about the deed, the subject of the charge) may reflect an image of the accused so monstrous as to convince the court that there is no danger in convicting him of the alleged charge even though the deed was proved by the testimony of one reliable witness alone.

 

            A good example of this may be found in the judgments in Paul (4) and Honigman (3).

           

            In each of these two cases the general background which was proved demonstrated the accused as monsters, ruthless sadists in their maltreatment of persecuted people when under their control in concentration camps. On this matter there was more than one witness. It is therefore not surprising that in Honigman the accused was found guilty even though the incident in question was evidenced by one witness.

           

            Mr. Kwart relied on Honigman but the case before us is diametrically opposed. Despite his conviction in the District Court, the appellant was not described in any part of the judgment in the way that the criminals in the abovementioned cases were described. When one looks at all the evidence of the prosecution and of the defence, which was credible to the court, there was clearly no occasion for such a description. Furthermore, in pronouncing sentence, it was even said that,

           

The accused was not the instigator, but fitted into an establishment that was directed and led by people who were known in the Jewish community as communal workers and spokesmen even before the war, and it was difficult for him to take an independent line and make moral judgments against that leadership, particularly since to follow the Judenrat's line corresponded with his own interests and his natural desire to be saved.

 

It has already been mentioned in the judgment that the accused did not display in his actions any tendency to cruelty in exercising his powers, and did no more than was required of him in his position, and even helped various people when he could do so without risking his own well-being and position.

 

 

 

            And the judgment observes that "We are far from viewing the accused as a sadistic monster, who maltreated his fellow Jews from any low instinct."

 

It is true that this description in the pronouncement of sentence was given as an extenuating circumstance for the purpose of sentencing, but it appears to us that it should serve as ground for explaining, or fearing, that there was some danger in convicting him of acts the proof of which rested on only one witness. In my opinion one may find in these matters one of the circumstances to justify a refusal to convict on uncorroborated testimony.

 

Furthermore, the period of over twenty years which has passed since the events of the Holocaust until the appearance of the prosecution witnesses, constitutes another ground. It has already been said by one jurist, regarding compensation claims in road accident cases prosecuted long after the event, that with each period of time that passes after the incident, memory grows weaker and imagination stronger.

 

Special circumstances may further be found regarding the conviction of the accused on the first count (the delivering up of the children) which is the most serious charge against him. The conviction is based on the uncorroborated testimony of Fishel.

 

The appellant strongly denied Fishel's story, and testified that after the "action" in August 1942 there was in fact an incident with children whom he tried to save but in the midst of the rescue operation Gestapo men appeared and beat him. The rescue was not completed and he did not return to the orphanage. The appellant offered the explanation that Fishel's mistake derived from this. Although the court had doubts about whether to believe the appellant's story it did not reject it outright but rather his suggestion that Fishel had been mistaken in his story, and it ruled that the incident about which Fishel testified was a different one.

 

            Fishel testified that the incident which he related occurred in May or June of 1942. He said that he and other workers in the kitchen of the orphanage hid the children and fed them, and that the appellant and the police later removed the children and turned them over to the Germans.

           

            In any event the delivery up of the children was not Fishel's secret alone. It is known from the evidence that the situation in Bendin worsened after August 1942, - the "selection". Prosecution witness Isaac Neiman (page 11 of the record) testified that until the end of 1942 the position of the Jews in Bendin was much better than in the territory of the Government-General. Before then also repressive rule prevailed, people were sent to work camps and perhaps even limited expulsions, but not in so regular a fashion that a harrowing act such as the removal of the orphan children from their hiding place and their delivery to the Nazi horde would fail to make an impression on the Jewish public and not be engraved in the memory of the people of Bendin. Yet in none of the books written by the people of Bendin, some even shortly after the war, or in the diary of Klinger, is there any mention of the horrifying incident of which Fishel spoke.

           

            Mr. Kwart argued that the court believed Fishel and raised no doubts as to his credibility. This is correct and the court was certainly entitled to be impressed by Fishel's good faith and feel that he sincerely believed that things happened as he said. In the light of his credibility to the court we do not urge otherwise. But in a criminal trial of this special type, first brought before an Israeli court after more than twenty years, when the accused himself was persecuted, when not one of the prosecution or defence witnesses who were believed by the court portrayed the appellant as a monster, when none of the above-mentioned books, written in particular about Bendin and criticizing severely the Judenrat and the Jewish police, mention this incident, it appears to me that this fact as well is ground which justifies the requirement that conviction of the appellant for the particular event alleged against him should not be based on the testimony of one witness alone, since it is possible that a witness may be very credible and there is not doubt of the sincerity of his testimony and yet the matter may not be exactly as he has testified.

           

            It seems that as a matter of principle the situation is similar to that in England, when the jurors in a sexual offence case believe the testimony of one witness and, despite this, refuse to give a verdict of "guilty" simply because it has been explained to them that in view of the nature of the offence it is not certain, or desirable to convict on the basis of uncorroborated evidence. The difference is that here it is not the nature of the offence but the other existing circumstances which render it undesirable to convict on the basis of the testimony of one witness.

           

            David Li'or, who wrote his book not long after the Holocaust, was in Bendin during the entire period up until 1944, and until early 1943 with his brother Arieh. He describes the events in Bendin and criticises people as above but he does not mention the appellant in connection with the incident of the children nor speak of the appellant in a negative light. In evidence David Li'or said that he did not mention any Jews in his book because he did not want to open old wounds, except that in two places he praises the appellant.

           

            Let us assume that David Li'or knew nothing of the matter of the children (he also gave no evidence on that) and for that reason did not write about it. One may suppose that people from Bendin who are now in Israel read his book; would they not have expressed to him their dissatisfaction at having singled out the appellant for praise, if the matter of the children had occurred as told by Fishel. It is inconceivable as I have said, that had it occurred as described by Fishel, the matter would not have been known about at the time in Bendin and would have been forgotten by people from Bendin who are in Israel.

           

            The court mentioned several defence witnesses regarded credible by it and noted the impression obtained from their testimony, that these witnesses were not happy with themselves since the appellant had done them all good turns in the period after August 1942 and they felt uncomfortable to be ungrateful and not to testify on his behalf. But one can also see from their testimony that before giving evidence, they encountered an unfriendly response from those who knew (apparently those who initiated the prosecution) that they were about to testify on behalf of the defence. One cannot discount the possibility that this too led to their "not being happy". This circumstance also has some bearing on the question whether the court should have been satisfied with uncorroborated evidence.

           

            In paragraph 3 of the judgment a description is given of the establishment of the Judenraten and the Jewish police on Nazi command which "gave them power in that nature of internal autonomy of submissive serfs, and changed them into persecutors of their brothers."

           

            The very existence of the Judenraten and the Jewish police, and their exercise of normal functions, assisted the Nazis, for otherwise the Nazis would not have been interested in establishing and maintaining them. The very existence of this organisation helped the Nazis by providing them with an address to which they could turn with their orders and enforce compliance, such as collectors of the assets and property of Jews and their transfer to Nazis, the supply of Jews to the Nazis for forced Iabour and many other innumerable orders.

 

            In occupied Poland and in other lands of the Holocaust there were many Judenraten, virtually in every city. The Judenraten varied, and one may assume that members of a Judenrat were not all of the same mould in regard to their strength to stand up to the Nazis, preferring suicide to carrying out brutal orders, and in regard to their astuteness and success in softening by ruse the Nazi decrees and in delaying expulsions to the death camps and the like.

           

            In fact, if one analyses the state of affairs in depth, it is impossible to describe the exercise of any function by the Judenrat, which was not of direct or indirect benefit to the Nazis - the registration of residents, the maintenance of Jewish police to keep order in the ghettos or in other places where Jews were to be found, the holding of Jewish delinquents in ghetto jails and so on. Even if these served the interests of the Jewish public, they were also useful to the Nazis, enabling them more easily to find victims for persecution or extermination. This was particularly so with the increase in extermination, when the Nazis exploited this organ frequently by deceit and stratagems of various kinds.

           

            The whole Jewish public was in a confusing position, particularly in the early years of the Holocaust, before they got to know of the deceitful stratagems of the Nazis. Many placed their faith in this organ in the hope that it would successfully manoeuvre, fair or foul means, come to the rescue, put off things and so on. When success was not forthcoming and when there were instances, as there certainly were, in which leaders of the Judenrat appeared brutal in seeing necessary for themselves to choose the lesser of two evils, bitterness against the Judenraten and the Jewish police began to spread.

           

            Jewish youth as well was in a state of confusion. Some of them were not reconciled to the Judenrat system and the Jewish police and there were certainly those who were contemptuous of them. But they were perplexed and powerless and could not offer any practical alternative to the masses. On page 13 (of the record) Isaac Nieman, a member of the resistance and prosecution witness. testified that the Judenrat believed that through cooperation with the Germans it would be possible to save more Jews, that it opposed and did not believe in the utility of uprisings. "Therefore, we were against them."

 

            On p. 22 he testifies. "The members of the Judenrat worked to prevent uprising, by warning people against hasty actions that would endanger public safety. The public did not know at all of the relationship between the resistance and the Judenrat. What the Judenrat did to weaken the resistance was done to prevent uprisings. We were a bit afraid to do anything, responsibility for which could afterwards fall upon us. We hesitated a bit. We were partly convinced, not because we thought that the Judenrat acted in our interests or for the good of the people. It may be that the Judenrat believed that they could save not only their relatives, but also a small portion of the people. We did not believe that". "The men of the resistance had one aim: revolt, the spilling of German blood, and saving the honour of the people". (p. 21).

           

            Here and there the youth of the resistance engaged in rescue actions of limited proportions, and later there were also attempts at and outbreaks of partisan fighting from the forests and even of local uprisings, of which the most notable was the glorious revolt of the Warsaw ghetto. Against this background, difference of outlook began to increase and sometimes feelings of hatred and resentment were aroused against the Judenraten and the Jewish police. A fertile field was most certainly found also for unjustified hate and for spreading rumours about acts of corruption and protection given to relatives, rumours which in many cases, in light of the conditions of that time, grew out of suspicion and jealousy alone.

           

            After the Holocaust, when the horrible details became known to the Jewish public, and in particular the Israeli public which had luckily not experienced the Holocaust, controversy broke out as to the correct and proper path which the Jewish public and its leadership should have taken in the countries of the Holocaust. The controversy still continues and will apparently never cease. Various opinions, which need not be detailed. were expressed. One can only point out that that it was even argued (though the argument has not gained currency) that the Jewish leadership and the Jewish organisations in the countries involved had themselves caused the shocking dimensions of the Holocaust, since, if not for them, the Germans would have been unable to carry out extermination on the scale that they did, and thus they bear the responsibility.

 

            Every one may, of course, take a stand on this matter according to his own thinking and emotions. Opinion may be reached from the viewpoint of national honour, the Judenrat and the Jewish police may be criticized, even the intention to save Jews may be regarded as not justifying any cooperation with the Nazis or any act from which the Nazis could derive benefit (and we have already noted that the very existence of these institutions was a form of cooperation, albeit unintended). The same person can strongly advocate that the nation should have preferred mass suicide rather than be led as lambs to the slaughter, a phenomenon which is not so rare in Jewish history. By a negative view of the activity of these institutions, a person can proclaim the idea that instead of being diverted by the hope of saving Jews through forced labour for the benefit of the Germans, by giving bribes, by following orders in return for promises and other such things, mass revolts in all the countries of the Holocaust should have been organised, even without arms, for there were none, and the principle of self sacrifice should have been preached, even if to no avail, in struggle and war, as was done in various places by resistance groups on a scale that did not reach the proportions of the revolt of the Warsaw ghetto.

           

            The view is possible that even in the various places where the calculations and the manouverings of the Judenrat were to a certain degree or during a certain period, justified, it would have been better had this body not existed at all.

           

            There are those who uphold the idea that beyond the practical situation stands the principle, the rule of Jewish law, the tradition, that one may not cause the loss of a single soul in Israel even for the purpose of thereby saving many Jews, and from this perspective the activities of the Judenrat and the Jewish police are to be decried, even had they succeeded in saving many people by cooperation resulting in the number of victims sent to destruction being reduced. For such people it is perhaps impossible to speak of a good Judenrat or a bad Judenrat since the very existence of this institution, together with the Jewish police force, the medium for delivering Nazi orders, should be considered as invalid,  and these institutions, or their memory, are to be held up to calumny.

 

            On the other hand there are those who believe that one cannot ignore the reality of those pitiful days, when the frightfully tragic situation is contemplated in which the leaders of Jewry found themselves in those places. They had to carry the awesome burden and, by calculation and manoeuvre and hope, to soften the harsh orders. To save or to delay the acts of extermination they were forced to become the obedient servants of the Nazis and appear as cruel, and perhaps even as traitors,  in the eyes of the suffering masses when they or their families were being carried off to the camps. And all this despite the fact that afterwards most of the leaders of the Judenrat and the members of the police were also exterminated.

           

            In any event, even the most extreme of the critics have not charged that the Judenrat or the Jewish police took upon themselves the aim of assisting the Nazis in the extermination of Jews.

           

            It is clear that the question which of the positions outlined above is correct, that is to say, which line should the leader have followed, is one for history and not for a court before which a persecuted person is brought to face criminal charges under the Law in issue here, so long as the legislator has not directed the court in the Law itself that it must take up a position, which it must be, as regards the line championed by the holders of the above-mentioned views.

           

            The court then is given the task of judging the actual concrete acts attributed to the accused in light of the provisions of the Law, in accordance with all the rules which apply in a criminal trial, and no more. From this viewpoint, it is very likely that some of those which hold the above-mentioned views would not be satisfied with the wording of section 10 of the Law and would unintentionally find therein that which is not there. It is clear from the language of section 10 that the legislator chose not to take any stand on the above-mentioned, and, if at all, the wording would appear to lead in a direction which does not support the interpretation adopted by the learned judges below.

           

            Section 10 says, "If he did ... the act with intent to avert consequences more serious than those which resulted from the act or omission", he is to be released from criminal responsibility. Every court must discover the intention of the legislator from the words used in the Law, in their simple and ordinary meaning. If for example, the Nazis had presented an ultimatum to the Judenrat to supply them with one thousand forced labourers for their factories, by threatening that if the demand were not met, they would expel tens of thousands of Jews immediately and send them to be exterminated, and the Judenrat, with the intention of averting such immediate extermination carried out the order with the assistance of the Jewish police, the question arises, is the Judenrat or the Jewish police,  guilty or innocent under the said Law.

 

            Let us take another example. In the literature of the Holocaust the story is told of the ghetto in one city, in which a Gestapo man was killed by a member of the Jewish underground. The Nazis surrounded the ghetto and issued an ultimatum that if the member of the underground was not delivered up to them alive within a certain time, they would hang hundreds of hostages. The man, on his own initiative in an act of self- sacrifice, gave himself up and the threat was not carried out.The terrible question which arises is what would have been the position under the Law, if the underground man had not surrendered and the Judenrat, through the police, had handed him over, so as to prevent the hanging of hundreds of victims? It is true that one recoils from the very idea of handing the man over. It is also true that if there were such cases of handing over at all, they were extremely rare. But this is not determinative for a court which must judge according to the Law. While it grates on the ear to hear this, and even more hurts to say it, particularly after the Holocaust, the answer is that according to the terms of the Law, the accused could rely on the defence provided by section 10(b).

 

            The lower court's judgment makes an effort to limit the application of the defence under section 10, but with no justification which can be found in the language of the section. The learned judges even found need to cite the words of one of the speakers in the Knesset during the debate on the Law, words from which one need not necessarily, in my opinion, draw the conclusion reached by the learned judges. 

 

            The rule is well-known that observations during debates in the legislature are not authoritative for determining the intention of the legislator. This rule is immensely more correct when a court is dealing  with criminal law which requires a strict interpretation in light of the rule that where two different interpretations are possible, one should adopt that which is best for the accused, and particularly in this case where the language of the section is not at all ambiguous. This does not mean that all the acts committed by all the Judenraten are to be considered as pure and worthy of the defence of section 10(b). One must judge the acts of each accused, and the question regarding the defence of "more serious consequences" is a question of fact, to be solved in the light of the circumstances of time and place of the occurrence of the event which is the subject matter of the charge. But it is impossible to say that the consequences which the accused intended to avert are in fact "more serious" but not those which the legislator intended. On what legal principle would such a statement be based? In a criminal trial, when the wording used is clear and fits in with the defence of the accused, it is impossible to ascribe a presumed intention or an "implied" intention to the legislator and to base a conviction on it.

 

            In this connection, it is worth citing the end of section 10, "however, these provisions shall not apply to an act or omission constituting an offence under section 1 or 2(f). Section 1 is concerned with the destruction of the Jewish people etc., whilst section 2(f) speaks of murder. That must mean that all other acts or omissions which constitute offences under other sections of the Law, such as section 2(e) - manslaughter, section 5 - delivering up of a persecuted person to an enemy administration etc., the defence of section 10 is available to the accused.

           

            It is correct to note that the application of section 10(a) could not arise at all in this trial and was not in fact raised by the defence. But what one may also learn from this is that the interpretation given in the judgment to the intention of the legislator in section 10 is fundamentally flawed.

           

            Section 10(a) provides: "If he did ... the act in order to save himself from the danger of immediate death threatening him", the court is to release him from criminal responsibility. Let us assume for example, that the persecuted person is accused of a felony under section 5, delivering up persecuted persons to the enemy administration, and the court is convinced that he did this in order to save himself from the danger of immediate death (pointing a gun at his temple so that he reveals the hiding place of persecuted persons) and that he did his best to avert the consequences of his act. Despite moral considerations, the defence afforded by section 10 would be available to the accused, even if the persecuted people were later exterminated, since the section speaks of "doing his best", in other words, to the extent he was able so to do.

 

            This is also the place to note that the learned judges. expanded by interpretation the applicability of section 5 just as they limited by their interpretation the scope of section 10. I also believe that keeping order and giving a direction to prevent movement from group to group was not "being instrumental in delivering up" as explained by my learned friend Cohn.J., and therefore the appellant need not rely on section 10 at all. I do not therefore have to deal with the argument of Mr. Kwart regarding the mode and amount of proof in the matter of "the intention to avert more serious consequences", and I will only say that I do not place much value on the fact that only on re-examination did the appellant raise his story about the fear of the Nazis opening fire if order was not kept, just as I do not attach importance to the fact, noted in the judgment, that when the appellant testified as to what induced him to join the police, he first mentioned the benefit of a more comfortable life before mentioning the desire to help Jews. In this connection I would add that, with the greatest respect, I cannot accept the reasoning at the beginning of paragraph seven in the judgment, that it is impossible to release the appellant under section 10(b) because he had reasons for not resigning from the police and "because the intentions of the accused, when he persisted in his position of command ... and took upon himself the task of keeping order ... although he knew after the Ulkush incident that the object of the concentration was 'selection'... and carried out guard duties by preventing movement from group to group, were not to avert more serious consequences but were selfish."

           

            The Jewish police was not declared to be an enemy organisation. The appellant was also brought to trial in Poland and did not deny that he had been commander of the police, and he was acquitted. To have been a policeman in the Jewish police is not an offence under the Law in question. Section 10(b) speaks of committing an act against the Law, in order to avert more serious consequences. Consequently, "the averting of more serious consequences" cannot be placed against the appellant's having been the commander of the police, or against his persistence in that position. The appellant joined the police back in 1941. He did not join the police for the purpose of the selection of 12 August 1942. and did not persist in his position in order to keep order that day. The keeping of order. and the giving of the command preventing movement from group to group. is only to be tested by whether, according to the prosecution's view. it constituted "instrumentality in delivering up". That, therefore, is the act which is an offence under the Law and which the defence sought to show committed in order to prevent more serious consequences; though an attempt was made by the prosecution, apparently under the influence of the initiators of the trial, to charge the appellant with membership in an enemy organisation, namely the Jewish police.

 

            As I have said, only the acts which are the subject of the charge are to be judged, unconnected with the question of which of the different opinions regarding the policy of the Judenraten, outlined above, is correct. From this viewpoint, it appears to me that the prosecution went too far in calling witnesses who testified generally against the Judenrat and the police, witnesses whose evidence was more in the nature of an expression of their opinions and views of the Judenrat and the police as institutions than evidence against the appellant. That is shown by the fact that despite the large number of witnesses, the conviction on counts one and six is based on one witness (Fishel). On the second count, which is very general, the conviction, for keeping order on the "HaKoah" ground and for the direction not to permit movement from group to group, is based on the testimony of the appellant himself, testimony which was transformed in contemplation of the court into an admission, "and no sufficient evidence was found on the other facts alleged in the particulars of the offence in the indictment, namely that he, with others, saw to transporting thousands of Jews to the places of concentration and guarding them so that they should not escape, and then transporting approximately 5000 Jews, including the elderly, women and infants, to the death camps, under guard" (paragraph 11 of the judgment, first part). The conviction on the eleventh count is also based on the testimony of the appellant alone. The conviction on the seventh count (the case of assault) is based on one witness, Arieh Lior, whom the court believed.

           

            As regards this last mentioned witness the judgment points out that "In his estimations and conclusions he took an extremely negative, uncompromising attitude about the line of the Judenrat and those who served it". And as regards the prosecution witnesses, the judgment says "That the hearts of virtually all the prosecution witnesses are filled with feelings of resentment towards the Judenrat and the Jewish police in Bendin and towards the accused as the commander of that police force."

 

            In spite of all this Mr. Kwart was unable not to point out to us that the Judenrat was not and is not accused here. But it apparently slipped Mr. Kwart's mind that the prosecution charged the appellant in count 12 with no less than "membership in an enemy organisation" under section 3(a) of the Law, and that enemy organisation was the Judenrat and the police, since the indictment says that the appellant was a member of the Jewish militia and from the time of his appointment to commander held a position in an enemy organisation "on behalf of the Judenrat and the administration one of whose aims was to assist in carrying out the activities of an enemy administration against persecuted persons".

           

            For all the criticisms levelled against the methods of the Judenrat, or the Jewish police, I have yet to hear the opinion that their existence resulted "from the aim" they set themselves of "assisting in the carrying out of the activities of an enemy administration against persecuted persons". In the course of the trial the prosecution withdrew this charge, but in the meantime it had brought witnesses who testified against the Judenrat and the police generally, even without testifying against the accused. The learned judges stress that they did not ignore the position of the prosecution witnesses, but found them to be honest people speaking the truth. But, with respect, when a purposive atmosphere is created in a trial of this kind, with its historical background and divided opinions, then even if the witnesses give the impression of being truthful, there is room to fear that although these are people who believe in the honesty of their testimony, they insensibly allow their imagination to override their memory. It is therefore more assuring for every act, the subject of the charge, to be proved by something more than one witness. The purposive atmosphere is therefore another circumstance for justifying the demand for more than one witness.

           

            Incidentally, from the passage in the sentence cited above one gets the impression that even the learned judges took a position concerning the line of the Judenrat, in saying that the appellant "was led by people who were known in the Jewish community as communal workers and spokesmen even before the war, and it was difficult for him to take an independent line and make moral judgments against that leadership".

 

            As regards counts 6, 7 and 11 I agree with the remarks of Cohn J., but I wish to add regarding counts 6 and 7, which are based on section 4 of the Law, that it appears to me that one cannot ignore in the definition of "place of confinement", the words "any place in an enemy country which... was assigned". This means, it would appear to me, a place assigned in advance, such as a concentration camp or perhaps also any place within the ghetto walls, but not just a place that the enemy administration happened to make use of. There was no proof that the orphanage, which was outside the place of concentration of the Jews or the area near it, was a place "assigned" by order of an enemy administration, albeit the enemy made use of it from time to time. In any event I also believe that but for counts 1 and 2, on which the appellant was convicted, the prosecution would not have brought him to trial on the three counts detailed above.

           

            To sum up, even if no one of the circumstances mentioned above as justifying the requirement not to be satisfied with one witness is sufficient, the combination of circumstances mentioned above, along with those pointed out by Cohn J. do provide such justification. This is particularly so with regard to the first count, the matter of the children. As regards this count, if, in light of the afore-mentioned circumstances, the conviction of the appellant on the basis of the testimony of Fishel alone could appear to be unjust (and so it appears to me) he should be acquitted, even if the testimony of Fishel points in the opposite direction.

           

            Finally, 1 wish to join my friends in their praise of the judgment given by the District Court, for its stucture, its mention of each thing according to the page reference in the lengthy record, which helped us very much, and for the great effort expended upon it.

           

LANDAU J.               I concur in the acquittal of the appellant for the reasons already explained by my worthy colleagues and for other reasons which I shall explain. Before doing so, I wish to join my friends in their words of praise for the judgment of the District Court, written by Judge Erlich. The detailed work done by the judges in analysing the evidence and their sincere efforts to probe, by exceptionally balanced and clear craftsmanship, the depths of the legal and human problems that faced them in this difficult case are all evident in the judgment. If we disagree with them. after further clarification based on the foundations laid by them, is not to detract from the respect we feel for their work.

 

            All are of the opinion that it is not for the court to decide the great and spreading debate, not a little influenced by prophetic hindsight, over the path followed by the Judenraten wherever they were cooperating to one or another degree with the Germans they went beyond moral principle and whether the benefit of their activities and their very existence was greater than the damage they caused. Olshan P. has already spoken of this and I can only agree with his observations. That cooperation, borne of unprecedented duress and force, was not as such declared to be a criminal offence by our legislator. For this reason, the prosecution committed a mistake in dealing with this particularly sensitive issue when it added to the indictment a charge which sought to declare the Jewish militia in Bendin an "enemy organisation". This gave the entire prosecution case a mistaken direction from the beginning. The note of triumph with which counsel for the prosecution told the court at the opening of the trial that he had a great deal of evidence which allowed him to add this count to the indictment turned into a note of defeat at the end of the prosecution case, when he admitted that the evidence brought by him was not sufficient to prove this count and therefore requested that the accused be acquitted on it. Nevertheless, echoes of this sweeping charge can be found in the judgment as well, where the learned judges considered the question, whether the appellant should have resigned from his position in the Jewish militia ("the Jewish order service"), to avoid the need to commit acts which they deemed criminal. In connection with this, they describe the appellant as a "little man", in the words of one of the witnesses, and in a passage which, in my opinion, goes to the root of the problem, they add:

           

This is in fact the amazing thing which characterised that period, that in the atmosphere of extraordinary pressure of those days, moral concepts and values changed, and little men, educated and likeable like these, did not refuse the life jacket, even if it necessarily involved assisting in the delivery up of their Jewish brothers to the Nazi murderers.

 

            Later on they say:

 

In light of the mammoth dimensions of the Holocaust, in which one third of our people was exterminated by the Nazi enemy, and major centres of our national existence were totally destroyed, the Israel legislator, in 1950, speaking in the name of the nation, did not wish to forgive those small and likeable men who sinned against the nation for selfish reasons during that abnormal period.

 

            These are indeed piercing words that come from a grieving heart, but it seems to me, with all feelings of respect, that they are lacking in strict law. Obviously, if the appellant committed the criminal offence of rendering assistance in the delivery up of persecuted persons to an enemy administration, as defined in section 5 of the Law, he must account for that. On this question my friends have already spoken, and I will also have something to add below. And it is also the bitter truth that "in the atmosphere of extraordinary pressure of those days moral concepts and values changed". But it would be hypocritical and prideful on our part - on the part of those who never stood in their place, and on the part of those who succeeded in escaping from there, like the prosecution witnesses - to make this truth a cause for criticising those "little men" who did not rise to the heights of moral supremacy, when mercilessly oppressed by a regime whose first aim was to remove the image of man from off their faces. And we are not permitted to interpret the elements of the special offences, defined in the Nazi and Nazi Collaborators (Punishment) Law, 1950, by some standard of moral conduct which only few are capable of reaching. One cannot impute to the legislator an intention to demand a level of conduct that the community cannot sustain, especially as we are dealing with ex post facto laws. Nor should we deceive ourselves in thinking that the oppressive weight of the terrible blow which our nation suffered will be lifted were the acts committed there by our persecuted brethren to be judged according to the standard of pure morality.

           

            For similar reasons I cannot accept the negative tone with which the judges pointed out the selfish motives which led the appellant to join the Jewish militia and continue to serve in it. Men take care of themselves and their families, and the prohibitions of the criminal law, including the Nazi and Nazi Collaborators (Punishment) Law, were not written for the exceptional heroes but for ordinary mortals with all their weaknesses. The existence of selfish motives does not yet negate the possibility that, in dealing with some act committed by the appellant such as his activity on the day of the "selection", 12 August 1942, he may rely on the defence of section 10(b) of the Law, that he acted in order to avert more serious consequences and actually averted them.

 

            It also appears to me that the learned judges were a little too severe with the appellant in dividing the matter of his relations with the youth groups into two stages and deciding that only in the second stage, during the period of the final liquidation which began in 1943 after the death of Munik Marin, the chairman of the Judenraten in the Zaglambia region, was any link forged between the appellant and the organised youth, in delivering information and in rescue action, because the appellant then already knew that in any event he had nothing to lose. First, the court itself noted that the organised youth had difficulty in finding the proper course to pursue and up to a certain point, beginning in the middle of 1942, was mainly occupied in making plans for the future. Secondly, at least one witness who favourably impressed the court, Aharon Gefner, testified to an act of rescue by the appellant which had occurred as early as November 1942, when he released from German hands a group of twenty members of the Gordonia movement, including the witness himself. (p. 336). Kelman Balhash, an underground member, also testified to receiving information from the appellant at the end of 1942 and the beginning of 1943, before the death of Marin. It is self-evident that by activity such as this the appellant placed himself in danger.

           

            I will now confine myself to the second count, the "selection" of 12 August 1942. In interpreting the offence of instrumentality in delivering up persecuted persons to an enemy administration, under section 5 of the Law, we would not be mistaken if we interpreted this section in association with the section 6, concerning the blackmailing of persecuted persons. Section 6 speaks of receiving a benefit from a persecuted person under threat of delivering up him or another person to an enemy administration, or from a person who had given shelter to a persecuted person under threat of delivering up him or another persecuted person to an enemy administration. These are typical cases of delivering up a persecuted person to an enemy administration, namely the delivering up of a person hiding from the enemy administration or giving shelter to such a person. The legislator had in mind treasonous cases of handing over such persecuted people or informing on them, leading to their capture by an enemy administration. Now, the District Court declares that "one who tried in those days to prevent a persecuted person from escaping from the group destined for expulsion was thereby instrumental in delivering up the person to an enemy administration". My worthy friend, Cohn J., has already explained why this wide interpretation is not supported by the language of the section, and I agree with him completely. There is no justification for departing in this section from the rules of strict interpretation customary in criminal offences. If we interpret the section according to its terms, as we must, one clearly cannot speak of the delivering up into German hands of the thousands of Jews who gathered together in the ground, because of the actions of the Jewish police under the command of the appellant, whether by generally maintaining order or by preventing the movement of individuals from the group destined for death to one of the other groups. All of those gathered were in any case "delivered up" from the start into the hands of the Germans, who surrounded the ground with guards armed with machine guns, keeping a close eye on all that was being done in the ground by the Jews undergoing selection and by the Jewish guards. Regarding the total life and death control the Germans had over these imprisoned Jews, the fate intended for one group or another is immaterial. He whose fate was temporarily decided on the side of life, by being placed into the groups not destined for Auschwitz, continued to be in German hands, at least until the evening of that day, when the Germans stamped their identity cards with a permit for temporary release, or were sent to do forced labour. In other words, such people were no less "delivered" into the hands of the Germans than those who were to face immediate death at Auschwitz, and one should not mix up at this point the fate of each group after it left the ground. The appellant was not accused of instrumentality in the extermination of the Jews who were sent from there to Auschwitz, and it was impossible so to accuse him, since he did not desire their extermination.

 

            So as to demonstrate the state of things, we asked Mr. Kwart, during the argument before us, who delivered Jews in that ground, whose fate was shipment to Auschwitz, to whom within the meaning of section 5.  Mr. Kwart had difficulty answering this question. He pointed out that one should regard the "selection" as a continuing process, but I fail to see how this advances the argument as to the appellant's guilt. He also noted the words in the section which require "instrumentality" as one of the ingredients of the offence, and not the delivery up itseIf. These words even increase the difficulties of interpreting this section, unless we consider they were added for stylistic effect only and to do so is to counter the assumption that the legislature does not use words pointlessly. One who is instrumental, that is to say, aids in the delivery, is in any case punishable by virtue of section 23 of the Criminal Law Ordinance, if the delivery itself is a criminal offence, and why therefore were these words added? In any event the question we asked reappears in a slightly different form: who was the deliverer of the victims to the enemy administration whom the appellant assisted? I heard no answer to this question.

 

            What has so far been said is sufficient to warrant quashing the conviction under the second count, but I wish to point out other weak points in the conviction on the acts that were proved. Let it not be said that in so doing we are engaging in hair-splitting and pedantry which is not seemly in a matter so tragic. We have no alternative but to analyse the facts exhaustively, so as to discover whether the appellant crossed the border between acts that were perhaps morally contemptible and conduct which warrants the sanctions of the criminal law, and wherever there is doubt, we must come down on the side of innocence.

           

            The District Court considered that the criminal conduct of the appellant was mainly that he ordered his police to prevent Jews moving from the group to be sent to Auschwitz to one of the other groups. It should be noted here that the attempts to move from group to group were not all in one direction. The third group, the group destined Eor death, contained primarily elderly people and children. Haika Klinger, at page 77 in her book, tells how, "The Germans entertained themselves; the children to be sent for expulsion, the parents for release, or vice versa; the children ran after their parents, the mothers after their children. They separated them by force, with clubs and rifle butts."

           

            Another example is Eound in the book by Jochanan Rantz, written in English and submitted by the prosecution. At page 52 we find a diagram made by the author of what occurred that day in the "HaKoach" ground in which he shows the location of the groups after the "selection". The third group is designated by the words, "For death in Auschwitz" and around... it is written "Guarded by SS guards", while around the first group which was to be released is written "Militia (meaning the Jewish order Service) and SS guards". Around the second ("to work camps") is written simply "Guards". The learned judges did not put their minds to this and Mr. Kwart could not explain the matter. I found a further hint in the testimony that perhaps the Germans did not want to assign guard duty over the third group to the Jewish policemen. The witness Lipa Kleinman told of the last big selection, in the summer of 1943, in which he succeeded in escaping from the group which was stood up against a wall, to another group destined for forced labour. There as well there were Jewish Police but the witness said, at page 150, "The Jewish police did not guard my group at the wall. There the Germans kept guard."

 

            The District Court apparently assumed that all members of the third group were transferred from the ground to points of concentration, such as the orphanage, and were from there all sent to Auschwitz. But it was not so, for there were those who managed to leave the field that same night though a hole in the fence, with the help of the Jewish police, and many were rescued from the points of concentration by members of the underground, before their being transported. In this way five thousand people of the third group, almost half of the entire group, were saved (see David Li'or's book at page 75). Thus, even if we judge the action of the appellant on that day by its consequences barring the rescue of those in the third group, to use the expression of the District Court (and in my opinion this is not the correct approach) - it is not at all clear that in the end the position of those in the second group who were sent to forced labour was better than the lot of any particular person in the third group whose attempts to escape while in the ground were foiled by the appellant's police but who was afterwards saved before being transported to Auschwitz.

           

            The District Court felt that the appellant should have resigned from his position as deputy commander of the Jewish police and thus avoid the need to participate in the selection of 12 August 1942. But here as well, one must look at the matter in the reality of the then situation, in so far as we can do so. After having agreed that the mere fact of membership in the Jewish police was not a criminal offence, the appellant cannot be faced with the legal argument that he should have resigned fom his position in order to avoid carrying out the task of generally keeping order. It was also totally unrealistic to demand his resignation on the spot at the time of the selection. when it became clear to him that he was also required to carry out the specific task of preventing the escape of Jews from death. Had he attempted such an open act of revolt before the Germans' very eyes his fate would have been very bitter. perhaps immediate death. We need no evidence to show that the blood of every Jew was worthless in the eyes of the Germans, and the atmosphere of terror which reigned in the ground may be shown by the fact that Mrs. Cherna, the wife of Marin, was so badly beaten by the Germans that she had to be removed on a stretcher.

 

            The learned judges, however, held that the appellant knew beforehand that the purpose of gathering together all the Jews of the city was to send some of them to extermination, and that he also knew of the tasks assigned to the Jewish police at the time of the selection since he had some time earlier participated in another selection in the city of Ulkush in the vicinity of Bendin and was aware that some of the Jews of Ulkush had been despatched to Auschwitz. But one must again be exact in reading the evidence.

           

            The appellant, whose testimony in cross-examination was relied upon by the judges in this matter, said, at p. 204:

           

Some of the Jews of Ulkush were sent off, and upon my return to Bendin I knew that they were sent to death, and so when the concentration on the sports ground in Bendin occurred I feared that people were already being sent to death, as a result of such concentrations. It was already known, or really feared.

 

In other words, he had a bad feeling but no actual knowledge. And there is something in what he said, because during the time between the action in Ulkush and the concentration of Jews in Bendin the Germans engaged in an act of calculated deception, by concentrating Jews of another town in the same area and in the end sending them all home. (See David Li'or's book, at p. 73). This stratagem succeeded in deceiving the members of the Judenrat in Bendin. Arieh Li'or testifies to this, at p. 44:

 

When I asked one of the members of the Judenrat, in the ground itself, why we were being gathered together, he answered "They have" deceived us. The head of the Judenrat in Bendin also said that he did not know. I am certain that the members of the Judenrat in Bendin did not know then that the gathering was for the purpose of extermination and how things would turn out afterwards.

 

One cannot suppose that the appellant who was a tool in the service of the Judenrat, had more certain knowledge than the members of the Judenrat themselves. And as to the tasks exercised by the Jewish police in the "selection" in Ulkush the appellant testified. at p. 204:

 

"On the day of the gathering in Ulkush I arrived there with a group of policemen, and our job was to help in carrying out the action there, and we helped by keeping order in the ground.... the experience of Ulkush only gave me material with which to consider the matter, but on 12 August 1942  I did not yet know what the Jewish police would have to do on the 'HaKoah' ground."

 

Mrs. Felicia Rassold, who was the only witness to testify on the Ulkush incident, aside from the appellant, did not add anything to his testimony in this matter. The result then is that there was no evidence before the District Court that the appellant knew in advance that he would have to perform the specific task of preventing escapes from group to group in the 'HaKoah' ground. This was what the learned judges saw as his primary guilt under section 5 of the law. There is therefore no real basis for the "resignation demand", even if we accept all the other legal and factual assumptions of the District Court.

 

            As regards the first count, the taking of the children from the orphanage, my worthy colleagues have already explained why it was not safe to determine the facts according to the story of the witness Fishel, and I wish to add to what they said. The District Court was deeply impressed by the testimony of Fishel, and we must respect this impression. However, it is well known that a witness may be convinced, or may convince himself, that he honestly did see things, without having seen them at all. In particular one may not ignore this possibility in the case of a witness who testifies after a long period of 21 years, after having passed through many horrifying events upon which he has without doubt not ceased to ponder. One cannot quash the fear that with such a witness, "reality and imagination have been intermingled and blended together", to use the words of the judges regarding the witness Waxelman. I see no decisive difference in the fact that Waxelman was then a boy of 10, while Fishel was already an adult. I stress, as did my worthy colleagues, that we are dealing with uncorroborated evidence of an act that appears to be out of character, considering the known nature of the appellant and other aspects. Rantz, in his book, at page 55, talks of the rescue of the orphans from the orphanage, and mentions that the head of the Judenrat, Multchidzki, showed particular kindness to the children of the orphanage.

 

            In regard to the circumstances surrounding the testimony of Fishel in court, about which my friend Cohn J. spoke, I wish to note further that it became clear, from the explanations of Mr. Kwart before us, that the learned judges in the District Court did not know that the existence of Fishel was made known to the District Attorney's office by Arieh Lior, and that he also supplied the office with the address of the witness on 13 November 1962. Later, on 22 March 1963, Mr. Libai invited Fishel to the District Attorney's office and he came and gave his statement. Yet this is how the events were described in the testimony of Mr. Fishel, at page 88:

           

About a month before the start of the trial (the trial began on 11 March 1963) I met Arieh Li'or and told him that I must come to the trial... He did not come with me to the police or to the District Attorney's office, but only told me that I would find out who to turn to, and in the end I found my way to the District Attorney.

 

This statement is not believable, both as regards the complete apathy which Arieh Li'or supposedly displayed to Fishel's going to the District Attorney and the failure to mention that Fishel was summoned by the District Attorney. One can only guess what Fishel's aim was in saying these things, but it is quite clear in any event that this witness was prepared to deviate from the facts for one reason or another, and this requires greater care in accepting his testimony as the single foundation upon which to determine facts.

 

            In connection with the witness Waxelman, it appears to me that the judges did not exhaust the full significance of the fact that this witness did not mention at all the affair of the orphanage in his statement to the police. This fact, among others, influenced them in not relying on his testimony, but in my opinion it had importance going beyond this. We must remember that, according to the story of Waxelman, he himself used to spend the day with the children of the orphanage since his mother had died and his father was in a camp for prisoners, and so he himself was caught, with the other children by the group of policemen headed by the appellant and was dragged by them to the stairwell, until he succeeded in getting away from them. Such an experience would certainly have been deeply imprinted in his memory, and it would have been only natural when summoned by the police for him first and foremost to mention this incident, in which he himself almost fell victim, as an example of the appellant's cruelty. In his statement to the police he did not mention this matter at all. His excuse, that the police asked him to give evidence in general terms without details, is no excuse, for in the same statement, he told in detail how the appellant slapped and whipped his brother on the day of the "selection" in the football field. In such circumstances, Waxelman's omission to mention the case of the orphanage in his statement to the police casts doubt not only on his own testimony but on the entire story, even when related by Fishel.

 

            Secondly, there is quite a serious contradiction between the versions of Waxelman and Fishel in describing the event. Whilst according to Fishel and accepted by the District Court, the children were hidden for half a day in the attic for fear of the "action", before the policemen appeared in the building (the taking of the children from their hiding place by the policemen further aggravates the guilt of the appellant and especially gives it the character of delivering up a persecuted person to an enemy administration), Waxelman testifies at page 100:

           

I remember that on one day in the summer of 1942, at noon, in the heat of the day, we were informed by the staff of the orphanage that the militia, that is to say, the Jewish police, had surrounded the building and was about to break in and take us to extermination camps. We began to scatter and there was chaos. Some went up to the roof and others hid under the tables. I hid in the dining hall. After a short time, the accused, with the policemen, came in and began to gather, to search and catch the children, and I was among these.

 

The contradiction is patent. It also gives further room to think that the source of the contradiction is not that the events occurred as described by Fishel or by Waxelman but that they never occurred at all.

 

            As for the conviction of the sixth count (the case of Mrs. Wilder) I agree with the views of my worthy friends that it is unsafe here also to rely on the uncorroborated testimony of Fishel, given after so long a time, about a brief incident of the appellant pushing a woman as he crossed the kitchen of the orphanage. I also agree that that place was not "a place of confinement" as defined in section 4 of the Law. It was not proved that the orphanage was in the area set aside for the Jews to live in, before they were imprisoned in the ghetto in 1943 (see also the testimony of Lipa Kleinman at page 149). However, I tend to agree with the submission of Mr. Kwart that the building itself should be regarded as a place of confinement, since the Germans would from time to time concentrate Jews there before being sent to Auschwitz from the nearby railroad station. But to be exact one must further find that such concentration occurred only in certain rooms in the house, and the kitchen did not serve this purpose (see Rantz's book, page 54-55). For this reason, Fishel claims that he took Mrs. Wilder from the place of concentration and made her go into the kitchen, where he worked, so as to save here.

 

I agree with Cohn J. in what he says regarding the seventh and eleventh counts (assault on Pikarski and forced labour respectively). In the case of forced labour it is clear, in any event, it was not the appellant who employed Jews in forced labour, but arrested them for the purpose of their being sent to the labour camps. This cannot be regarded an act of assistance within the meaning of section 23(1)(b) or (c) of the Criminal Law Ordinance, for he had no criminal intention of employing Jews under duress, and did what he did while himself being subject to pressure and duress.

 

            On 1 May 1964 we gave notice of our decision to grant the appeal and acquit the appellant, and these are the reasons which at the time we said would be given separately.

 

            Appeal granted,.

            Judgment given on May 22, 1964.

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.

 

 

 

President D. Beinisch

I concur with the judgment of my colleague, Justice E. Hayut, and would like to briefly add my own comments in support of the conclusions elucidated in her opinion.

1.    First, it should be mentioned that in the initial stages of these judicial proceedings, the respondents were not opposed to handing over the protocols of the Investigation Committee and additional documents submitted to the Committee, without revealing the names of the witnesses or other identifying details (see e.g. the letter of Adv. Lin of 25 May 2004 to the University's attorneys, at the beginning of which she suggested the non-disclosure of the witnesses' names, as opposed to the contents of their testimony or their letters – Appendix 16 of Rs/1 of the respondents' response to the application for an interim order; see further, para. 17 of the Regional Labour Court's judgment and para. 9 of the  National Labour Court's judgment, from which it emerges that the respondents proposed deleting the names of witnesses from the material requested in order "to prevent prejudice to the interests of the parties").  In their response to the petition in this Court, the attorneys for the respondents similarly "agreed to the deletion of the names in the interest of striking a balance as is customary in this kind of case", despite their observation that the identity of the witnesses might be relevant in assessing the reasonability of the conclusions reached by the Investigation Committee (response to petition, paras. 303-304). At all events, it is undisputed that the respondents did not appeal against the National Labour Court's ruling that the names of the speakers and any other identifying detail were to be deleted from any protocols that had not yet been submitted for examination, and that the other documents would be submitted to the Regional Labour Court, which would decide on the deletion of details "liable to be prejudicial to persons who had no interest in the proceedings". Under these circumstances the question for us to decide is whether the University was entitled to refuse to disclose the contents of the protocols that had yet to be submitted for the respondents' inspection and the contents of the additional documents that were presented to the Investigation Committee, subject to the deletion of the witnesses’ names and other identifying details.

In this context it should also be mentioned that the University is not a "public authority" for purposes of the Freedom of Information Law, 5758-1998, and as such the provisions of that Law are not directly applicable to it, other than with respect to its financial management (see O.G 5766, 1050; also cf. per President Barak in Technion – Israeli Technological Institute v. Datz [36], p. 433, para. 15). Under these circumstances I concur with the finding of Justice Hayut, which was also accepted by Justice Naor, to the effect that we were not presented with a suitable factual-legal background for the purpose of determining whether the University is a hybrid body with the characteristics of a public body.  Bearing this in mind, the guiding assumption exclusively for purposes of this litigation, and without ruling on the matter, must be that the voluntary Investigation Committee established by the University does not have public characteristics for purposes of the respondents' application for the disclosure of documents, and therefore, the norms of public law should not be applied (see para. 17 of the judgment of Justice Hayut and para. 7 of Justice Naor's judgment).

2     For the reasons set out at length in the judgment of my colleague, Justice Hayut, I too am of the view that the protocols and other documents under discussion are relevant to the dispute between the parties in the Regional Labour Court, and that the University has not demonstrated any privilege that could prevent the disclosure of the material requested.

There is no real disagreement between the parties that no actual statutory privilege exists that is applicable under the circumstances of this case. The University's central argument was that a new case-law privilege should be recognized in order to protect the constitutional right to privacy of the witnesses who appeared before the Investigation Committee, and in view of the public interest in protecting the proper functioning of voluntary investigation committees in academic institutions.  On this matter, we have already held in previous cases that "[i]n civil litigation the rule is that the disclosure of any material relevant to the dispute being adjudicated by the court should be as broad as possible", and [therefore], "…only in special and exceptional cases will a privilege be recognized" (per Justice D. Dorner, Shimshon v. HaPoalim Bank Ltd. [25], at p. 193; per President A. Barak in Hadassah Medical Association v. Gilead [5], at para. 5). In the current circumstances, I share the view of my colleagues, Justice Hayut and Justice Naor, that the gravity of the damage to the occupation and dignity of the respondents, and the need to ensure a fair proceeding which enables them to effectively defend themselves from the allegations, mandates the disclosure of the contents of the protocols and other documents that were before the Investigation Committee.  This conclusion stands even under the assumption that the disclosure may cause damage – the extent of which is unclear - to the privacy of the witnesses and to the activities of voluntary, internal university investigation committees.

       Here it should be noted that we have not examined the requested documents, and we therefore agree that one cannot categorically rule out the possibility of the witnesses' privacy having been infringed as a result of the disclosure. Justice Hayut stated that "Prima facie… any disclosure of the information in a proceeding between the petitioner and the respondents in the Regional Labour Court infringes the privacy of the complainants and the witnesses to the extent that they received a promise of confidentiality restricting the scope of disclosure of information…". According to Justice Hayut, however, the extent of the damage is relatively limited, and it is not equivalent to the respondents’ right to a due process, a right which would be impaired without the disclosure of the protocols and the other requested documents (para. 21 of her judgment).  Justice Naor too noted that “since these testimonies are not before us, I am prepared to assume, for argument’s sake, that there was an infringement of privacy with respect to some of the complaints or testimony… Even assuming that there was a certain infringement of privacy, when balanced against the harm to the respondents, the respondents would seem to have the upper hand" (para. 4 of her judgment; emphasis at source – D.B).  In support of the above we would emphasize that in the current case the respondents do not oppose receiving material from which the names of witnesses and other identifying details have been deleted. This detracts from the force of the University’s claims concerning the infringement of the witnesses’ privacy resulting from the submission of the material, and its subsequent “chilling effect” on the activities of voluntary investigation committees. As such, in my view, even without having examined the material that the respondents wish to see, it may be said that the severity of the infringement to the witnesses’ privacy is mild, even if only because of the agreement not to reveal the witnesses’ names and other identifying details. Considering all the above, I too am of the opinion that the circumstances of this case do not warrant the non-disclosure of the requested material.

Further to the above, and without ruling on the matter, I would note that in my view one cannot rule out the possibility that in exceptional cases, the public interest might justify recognition of a case-law based privilege which would prevent the divulging of sources who testified before voluntary investigation committees, for example - committees charged with the investigation of matters in which there is a major public interest in receiving information, the non-disclosure of which is a condition for its submission, or the revealing of which may jeopardize the possibility of its continued receipt (see and compare to the arrangement prescribed in s. 9 (b)(7) of the Freedom of Information Law, 5758-1998).  Exceptional circumstances of this kind do not exist in the case before us. The University set up a voluntary Investigation Committee in order to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Without detracting from the importance of this kind of committee as a tool for enhancing the quality of teaching and the streamlining of the support systems in academic institutions, it cannot be said that there is a critical public interest that supersedes the broad principle of disclosure, the reasons for which lie in the public welfare and the aspiration to expose the truth and do justice in the judicial process, and in the respondents’ personal interest in properly defending themselves against the damage to their occupation and their dignity.

3.    As to the contractual promise of confidentiality – the differences between Justice Hayut and Justice Naor in this respect do not appear to be substantive.  The assumption is that the Investigation Committee ought to have anticipated the possibility of its conclusions serving as the basis for measures taken against the respondents, and even that legal action may ensue. Bearing that in mind, both of my colleagues agree that the Investigation Committee was unauthorized to give the witnesses any absolute promise regarding the confidentiality of their testimonies which in the nature and scope would contradict the law governing the disclosure of documents; this is also the case in the absence of a critical, weighty public interest which could justify the recognition of a privilege by force of the very existence of a contractual promise of confidentiality,

As noted in para. 21 of Justice Hayut’s judgment, the University’s central argument against the disclosure of the requested material is based on the concern that the respondents would settle accounts with those who had testified against them.  Without expressing a view as to whether this concern is substantiated and justified on its own merits, it appears that from the University’s perspective the solution lies in the non-disclosure of the names and other identifying details of the witnesses, as distinct from the disclosure of the details of the testimony itself.   My view is that in the absence of any recognized privilege, as explained above, the most that the Investigation Committee could have promised the witnesses and complainants would have been to attempt  to avoid disclosure of their names or of any other identifying details – as distinct from the contents of their testimony.  This could be regarded as a promise of sorts to endeavor not to divulge the identities of the witnesses in the event of a legal proceeding, so as to encourage the cooperation of those giving information with the Committee, in accordance with the applicable statutory provisions (on the "obligation to make an effort” see and compare: CA 444/94 Orot Artists Representation  v. Atari [59], at para. 7).

In the circumstances of this case, the effort not to disclose the identity of the witnesses who appeared before the Committee bore fruit, because as stated, it was agreed, or at least the respondents were not opposed, that the material requested be examined without disclosure of the witnesses’ names. Absent that consent, the promise to “make the effort” may have been translated into an argument  on  the University’s part that it was initially necessary to ascertain whether the disclosure of the witnesses’ identity was essential to the respondents’ defense, in view of the infringement of the privacy of witnesses who were not party to the proceeding, and whose position on the disclosure of the material had not been heard (see and compare, in another context, AP 3542/04 Salas v. Salas [60], per Justice Proccaccia at para. 14, hearing an application for the disclosure of private material in the possession of a third party who was not a litigant in the proceeding). Either way, the University would have been left with the option of deciding whether to refrain from disclosing the witnesses’ identity by agreeing to accept the suit in the Labour Court (on this matter, see para. 6 of Justice Naor’s judgment).

Thus, as opposed to the ruling of the National Labour Court, my view is that the absence of privilege does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it. At the same time, the nature and extent of such a promise must derive from the statutory conditions applicable to the matter. On the face of it, I think that in these specific circumstances the promise given by the Investigation Committee was not, in essence, violated, in view of the decision that the material would be given to the respondents without revealing the witnesses’ names. However, the contractual relationship between the Investigation Committee and the witnesses who appeared before it is not the subject of this case, and I therefore see no reason to decide on the matter.

I therefore concur in the judgment of Justice Hayut. I would add that any disputes arising between the parties relating to the practicalities of the deletion of witnesses names and other identifying details from the protocols before their submission to the respondents - should be resolved before the Regional Labour Court.

Petition denied.

9 Iyyar 5768.

14 May 2008.

 

HCJ 11339/05

State of Israel

v.

1.             Beer-Sheba District Court

2.             Meir Zano

3.             Yisrael Ganon

4.             David Tzafir

5.             Yaron Sanker

6.             Rafi Ohana

7.             Moshe Ohana

8.             Shalom Shitrit

9.             David Akiva

10. Gal Bugnim

11. Public Defender’s Office

12. Israel Bar Association

 

Applicants to join the proceeding:

1.             Ilana Shelhov

2.             Amir Shelhov

 

 

The Supreme Court sitting as the High Court of Justice

[8 October 2006]

Before President Emeritus A. Barak, President D. Beinisch,

Vice-President E. Rivlin

and Justices A. Procaccia, E.E. Levy, A. Grunis, M. Naor

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel [1] that when two accomplices are indicted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule.

 

Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope is no longer suited to present conditions and legal realities. It today constitutes an obstacle to conducting effective criminal trials. The time has come to depart from the all-encompassing rule and to determine a new point of balance between the competing values that lie at the heart of the Kinsey rule, and the rule as it is interpreted today can no longer stand.

(Majority opinion — President Beinisch, President Emeritus Barak, Vice-President Rivlin, Justice Naor) The time has come to cancel the rule of practice formulated in the Kinsey rule. The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state.

(Minority opinion — Justices Levy, Grunis) The Kinsey rule should no longer be followed. The court should exercise great caution when considering the credibility of the testimony of a witness-accomplice, whose separate trial has not ended, against the defendant. The right to a fair trial, which was protected by the Kinsey rule, should be protected instead by other means, particularly by the requirement of supporting evidence for the testimony of a witness-accomplice in s. 54A of the Evidence Ordinance, and by the privilege against self-incrimination in s. 47(b) of the Evidence Ordinance, which should be interpreted broadly so that any incriminating statement made during the testimony of the witness-accomplice in the trial of the defendant may not be used directly or indirectly against the witness-accomplice in his subsequent trial.

(Minority opinion — Justice Procaccia) The proper balance between the conflicting values will be achieved by a selective cancellation of the Kinsey rule, which will leave the trial court judicial discretion, in exceptional cases, to order the hearing of the witness-accomplice’s testimony only after his trial has ended. (The scope of these exceptional cases was regarded as too broad by the majority opinion).

 

Petition granted.

 

Legislation cited:

Basic Law: Administration of Justice, s. 2.

Basic Law: Human Dignity and Liberty, ss. 5, 8.

Courts Law [Consolidated Version], 5744-1984, s. 77A(a).

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 21, 60-62, 61, 62.

Criminal Procedure (Testimony) Ordinance, 1927, s. 2(2).

Criminal Procedure Law [Consolidated Version], 5742-1982, ss. 74(e), 134, 145, 147, 155, 186, 196.

Evidence Ordinance [New Version], 5731-1971, s. 10A, 10A(c), 47, 47(a), 47(b), 53, 54A(a).

Evidence Ordinance Amendment Law (no. 4), 5740-1979.

Evidence Ordinance Amendment Law (no. 6), 5742-1982.

High Court of Justice Procedure Regulations, 5744-1984, r. 20(b).

Rights of Victims of Crime Law, 5761-2001.

 

Israeli Supreme Court cases cited:

[1]           CrimA 194/75 Kinsey v. State of Israel [1976] IsrSC 30(2) 477.

[2]           HCJ 398/83 Avitan v. Bench of Three Justices [1983] IsrSC 37(3) 467.

[3]           HCJ 583/87 Halperin v. Vice-President of Jerusalem District Court [1987] IsrSC 41(4) 683.

[4]           HCJ 6371/94 Deri v. Jerusalem District Court [1995] IsrSC 49(1) 133.

[5]           HCJ 6876/01 Barlai v. Justice of Tel-Aviv Magistrates Court (unreported decision of 18 November 2001).

[6]           HCJ 8800/05 Duha v. Tiberias Magistrates Court (unreported decision of 22 September 2005).

[7]           HCJ 267/88 HaIdra Rabbinical College Network v. Local Affairs Court [1989] IsrSC 43(3) 728.

[8]           HCJ 620/02 Chief Military Prosecutor v. Appeals Court Martial [2003] IsrSC 57(4) 625.

[9]           HCJ 9264/04 State of Israel v. Jerusalem Magistrates Court [2005] (1) IsrLR 400.

[10]         HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [1997] IsrSC 51(3) 750.

[11]         CrimA 725/95 Mandelbrot v. State of Israel (unreported).

[12]         CrimA 169/74 Kadouri v. State of Israel [1975] IsrSC 29(1) 398.

[13]         CrimA 949/80 Shuhami v. State of Israel [1981] IsrSC 35(4) 62.

[14]         CrimA 501/81 Abu-Hatzeira v. State of Israel [1982] IsrSC 36(4) 141.

[15]         CrimA 777/80 Beinashvili v. State of Israel [1983] IsrSC 37(2) 452.

[16]         CrimApp 9474/04 State of Israel v. Alzam (unreported).

[17]         CrimApp 5899/00 Ivorkin v. State of Israel (unreported).

[18]         CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[19]         CrimApp 8087/95 Zada v. State of Israel [1996] IsrSC 50(2) 133.

[20]         CrimApp 12047/04 State of Israel v. Ben-Yishai (unreported).

[21]         CrimApp 1657/04 State of Israel v. Ben-Yishai [2004] IsrSC 58(5) 577.

[22]         HCJ 5091/03 Turk v. Attorney-General [2003] IsrSC 57(5) 665.

[23]         CrimApp 7971/01 State of Israel v. Teakman (unreported).

[24]         CrimA 125/75 Meirom Ltd v. State of Israel [1976] IsrSC 30(1) 57.

[25]         HCJ 8850/02 Pastinger v. Minister of Justice [2004] IsrSC 58(2) 696.

[26]         CrimApp 8639/05 State of Israel v. Almarboa (unreported).

[27]         CrimApp 2846/97 State of Israel v. Maharom (unreported).

[28]         CrimApp 7372/03 State of Israel v. Moses (unreported decision of 14 August 2003).

[29]         CrimA 1774/02 Kadosh v. State of Israel (unreported decision of 20 November 2002).

[30]         CrimA 330/84 State of Israel v. Sha’ashua [1985] IsrSC 39(1) 85.

[31]         CrimA 64/87 Gerstal v. State of Israel [1988] IsrSC 42(3) 533.

[32]         CrimA 579/88 Suissa v. State of Israel [1990] IsrSC 44(1) 529.

[33]         CrimA 67/85 Abeid v. State of Israel [1986] IsrSC 40(3) 391.

[34]         CrimA 44/81 Moyal v. State of Israel [1982] IsrSC 36(1) 505.

[35]         CrimA 124/93 Masada v. State of Israel [1993] IsrSC 47(1) 480.

[36]         CrimA 4596/05 Rosenstein v. State of Israel [2005] (2) IsrLR 232.

[37]         CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006] (1) IsrLR 320.

[38]         RT 3032/99 Baranes v. State of Israel [2002] IsrSC 56(3) 354.

[39]         HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 746.

[40]         CrimApp 4157/00 Nimrodi v. State of Israel [2000] IsrSC 54(3) 625.

[41]         CrimApp 1355/98 Ben-Ari v. State of Israel [1999] IsrSC 53(2) 1.

[42]         CrimA 400/84 State of Israel v. Anjel [1986] IsrSC 40(3) 481.

[43]         CrimApp 2043/05 State of Israel v. Ze’evi (unreported decision of 15 September 2005).

[44]         CrimA 6613/99 Smirk v. State of Israel [2002] IsrSC 56(3) 529.

[45]         HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477; IsrSJ SV 35.

[46]         CrimA 1538/02 A v. State of Israel [2004] IsrSC 58(3) 590.

[47]         CrimA 209/87 Shahada v. State of Israel [1987] IsrSC 41(4) 594.

[48]         CrimA 348/88 Abu-Assad v. State of Israel [1990] IsrSC 44(3) 89.

[49]         CrimA 2642/99 Masaraweh v. State of Israel (unreported decision of 3 July 2003).

[50]         CrimFH 4390/91 State of Israel v. Haj Yihya [1993] IsrSC 47(3) 661.

[51]         FH 3081/91 Kozali v. State of Israel [1991] IsrSC 45(4) 441.

[52]         CrimA 5329/98 Dejani v. State of Israel [2003] IsrSC 57(2) 273.

[53]         CrimA 7450/02 Eid v. State of Israel (not yet reported decision of 17 March 2005).

[54]         CrimA 2910/94 Yefet v. State of Israel [1996] IsrSC 50(2) 221.

[55]         CrimA 29/86 Barrett v. State of Israel [1986] IsrSC 40(2) 430.

[56]         CrimA 228/87 Karmi v. State of Israel [1988] IsrSC 42(1) 332.

[57]         CrimApp 1572/05 Zuartz v. State of Israel [2005] (2) TakSC 64.

[58]         CrimA 951/80 Kanir v. State of Israel [1981] IsrSC 35(3) 505.

[59]         CrimA 639/79 Aflalo v. State of Israel [1980] IsrSC 34(3) 561.

[60]         MApp 838/84 Livni v. State of Israel [1984] IsrSC 38(3) 729.

[61]         CrimFH 4971/02 Zagouri v. State of Israel [2004] IsrSC 58(4) 583.

[62]         CrimA 4391/91 Hawaja v. State of Israel [1995] IsrSC 49(2) 45.

[63]         CrimA 2309/90 Sabah v. State of Israel [1991] (4) TakSC 324.

[64]         CrimA 3427/91 Salah v. State of Israel [1993] (3) TakSC 444.

[65]         CrimA 4391/03 Abu Ria v. State of Israel (unreported).

[66]         CrimA 573/72 Habura v. State of Israel [1974] IsrSC 28(2) 57.

[67]         CrimA 144/92 Cavalero v. State of Israel [1994] IsrSC 48(2) 407.

[68]         CrimA 474/75 Salem v. State of Israel [1976] IsrSC 30(3) 113.

[69]         CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[70]         CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

 

Israel District Court cases cited:

[71]         CrimC (TA) 40063/01 State of Israel v. Kadosh (unreported).

[72]         CrimC (Naz) 43/03 State of Israel v. Khalil (unreported).

[73]         CrimC (Naz) 37/03 Fatali v. State of Israel (unreported).

[74]         CrimC (Naz) 1215/02 State of Israel v. Masri (unreported).

[75]         CrimC (Naz) 1014/04 State of Israel v. Otmala (unreported).

[76]         SFC (Jer) 4059/01 State of Israel v. Kaloti (unreported).

[77]         CrimC (TA) 40067/02 State of Israel v. Abu-Ras (unreported).

[78]         CrimC (Hf) 384/00 State of Israel v. A (unreported).

[79]         SFC (TA) 1164/02 State of Israel v. Ben-Yishai (unreported decision of 27 October 2003).

[80]         MApp (Naz) 2303/03 State of Israel v. Masri (unreported decision of 22 December 2003).

[81]         MApp (BS) 20659/05 State of Israel v. Abu-Sevila (unreported decision of 15 May 2005).

[82]         CrimC (TA) 3160/04 State of Israel v. Levy (unreported).

[83]         CrimC (Jer) 3088/02 State of Israel v. Malca (unreported).

[84]         CrimC (TA) 40056/04 State of Israel v. Abramov (unreported).

 

American cases cited:

[85]         Counselman v. Hitchcock, 142 U.S. 547 (1892).

[86]         Kastigar v. United States, 406 U.S. 441 (1972).

[87]         United States v. North, 910 F. 2d 843 (D.C. Cir., 1990).

[88]         United States v. Hylton, 294 F. 3d 130 (D.C. Cir., 2002).

[89]         United States v. McDaniel, 482 F. 2d 305 (8th Cir., 1973).

[90]         United States v. Hsia, 131 F. Supp. 2d 195 (D.D.C., 2001).

[91]         United States v. Danielson, 325 F. 3d 1054 (9th Cir., 2003).

[92]         Byrd v. Wainwright, 428 F. 2d 1017 (5th Cir., 1970).

[93]         U.S. v. Echeles, 352 F. 2d 892 (7th Cir., 1965).

 

Canadian cases cited:

[94]         R. v. S. (R.J.), [1995] 1 S.C.R. 451.

[95]         R. v. Primeau, [1995] 2 S.C.R. 60.

 

English cases cited:

[96]         R. v. Farler (1837) 173 Eng. Rep. 418 (K.B.).

[97]         R. v. Winsor (1865) 10 Cox C.C. 276.

[98]         R. v. Pipe (1967) 51 Cr. App. R. 17 (C.A.).

[99]         R. v. Richardson (1967) 51 Cr. App. R. 381 (Central Criminal Court).

[100]      R. v. Turner (1975) 61 Cr. App. R. 67 (C.A.).

[101]      R. v. Weeks (1980) 74 Cr. App. R. 161.

[102]      R. v. Palmer (1994) 99 Cr. App. R. 83.

[103]      R. v. Pentonville Prison Governor, ex p. Schneider (1981) 73 Cr. App. R. 200 (D.C.).

[104]      R. v. Reed (2003) EWCA Crim. 2667; [2003] All ER (D) 289.

[105]      Winsor v. R. [1866] 1 Q.B. 390.

[106]      Tillett v. R. (1999) Privy Council Appeal no. 56 of 1998.

 

For the petitioner — E. Barzilai, A. Hulata, U. Corinaldi-Sirkis.

For the second respondent — D. Yiftach, D. Inbar.

For the third respondent — A. Himi.

For the fourth and eighth respondents — E. Bar-Zion, V. Uzan.

For the fifth respondent — T. Aner, A. Cohen.

For the sixth respondent — A. Feldman, A. Yariv.

For the seventh respondent — A. Wishnia.

For the ninth respondent — D. Qual, A. Goer.

For the tenth respondent — L. Felus.

For the eleventh respondent — T. Aner, A. Kobo.

For the twelfth respondent — R. Toren.

For the applicants to join the proceeding — D. Pugach.

 

 

 

JUDGMENT

 

 

Justice E.E. Levy

1.             Two persons are indicted for the same incident, but in separate indictments. Can the prosecution summon one, whose case is pending, as a prosecution witness in the trial of the other?

Three decades ago this court, per Justice M. Etzioni, decided this question in what was later to become known as the Kinsey rule:

                ‘The proper practice should be that one defendant should not be brought to testify against another defendant, even if separate indictments have been filed against them, as long as there is a concern that the witness may expect a benefit in the form of a more lenient sentence in the trial pending against him. This can be prevented either by holding his trial before the testimony is given or by making him a state’s witness and a stay of proceedings or a declaration by the prosecution that the trial against him will be cancelled when the testimony is concluded’ (CrimA 194/75 Kinsey v. State of Israel [1], at p. 482).

Justice M. Shamgar agreed with these remarks, and he discussed the difficulty inherent in such testimony:

                ‘In my opinion, there is a valid and real concern that the testimony of a witness as aforesaid in the trial of his accomplice will be nothing more than a dress rehearsal of the testimony that he intends to give at his own trial; in other words, he will of course seek to present his version of the sequence of events and his goal is likely to be to increase his chances at his separate trial by blackening his partner, his accomplice in the offence, against whom he is testifying, or by describing his own part in the offence as minimal. In this way the witness will increase his chances of being acquitted in his trial or he will minimize the relative weight of his part in the offence. An additional concern that arises in this context is that such a witness will indeed testify for the prosecution, but because his trial is pending, he can limit the scope of the cross-examination that he can expect from the defendant by relying on what is stated in the aforesaid section 47 of the Evidence Ordinance’ (ibid. [1], at p. 489).

The roots of the Kinsey rule have spread out and taken a firm hold in Israeli law. The purposes underlying it — as well as the criticism of it — have been studied in colleges and universities. What was originally intended to be a ‘proper practice’ has become, de facto, a binding rule from which the courts rarely depart. Now, thirty years on, we are required to consider whether there is a basis for changing this rule.

Factual background

2.             Three indictments were filed in the District Courts in Tel-Aviv and Beer-Sheba. These reveal a disturbing picture of a sequence of serious offences in which respondents 2-10 were allegedly involved. They concern several conspiracies that were made by these respondents, some of which had a common purpose — assassinating rivals in a power struggle between criminal gangs, in order to bring about in this way what has become known as ‘settling accounts.’ These acts, of which the respondents are accused, resulted in the deaths of three persons, and serious injury to others. Two of the persons murdered, the late Shaked Shelhov and Tomer Shevet, were killed as a result of mistaken identity, after they happened upon the scene of the murder.

Two of the indictments were filed in the Tel-Aviv District Court. One of them concerns the activity of the fifth respondent (SFC 1119/04), and the other concerns the acts of respondents 6-10 (SFC 1120/04). The third indictment (SFC 994/04) was filed in the Beer-Sheba District Court against respondents 2-4. The three indictments contain many pages and include long lists of prosecution witnesses, which presaged lengthy trials to come.

The following, in brief, are the facts of the indictments.

a.             SFC 994/04

In the first charge it is alleged that the respondents, with others, decided to kill a resident of Ashkelon, Shalom Domrani, because of a dispute whose particulars are of no importance to our case. For this purpose, they initiated contact with another criminal gang, which included the fifth respondent, Yaron Sanker, which also had an interest in targeting Domrani. The conspirators decided to carry out their plan on 2 June 2003, in the morning, when Domrani was supposed to leave his home on the way to the Beer-Sheba Magistrates Court. Some of the conspirators waited nearby, and when it appeared that Domrani was about to leave his apartment, Sanker and the second respondent entered the building and waited for the lift to arrive, on the assumption that their victim would be in it. In fact, Shay Ben-Amu, a friend of Domrani, was using another lift, and when Sanker and the second respondent, Yisrael Ganon, saw him, they opened fire with pistols that were in their possession. As a result Ben-Amu was wounded and required medical treatment to save his life.

The second charge in the indictment also concerns Domrani. It is alleged that in a further attempt to assassinate their victim, the second respondent, on the orders of the first respondent, fired a ‘Galil’ rifle at a vehicle in which Domrani was supposed to be travelling, according to the information in their possession. As a result of this shooting, the late Shaked Shelhov, a girl who was only sixteen years old, was killed; unfortunately she was caught up in the incident after she entered the vehicle which Domrani had exited several minutes earlier. Other passengers who were in the vehicle, Dennis Shemesh and Yaniv Revach, were wounded.

b.             SFC 1119/04 and SFC 1120/04

The indictment in SFC 1119/04 contained six charges, in which Sanker was alleged to have committed a host of offences when he was escaping from a twelve year prison sentence. It should be stated at this stage that during his interrogation Sendar confessed to all the incriminating facts attributed to him, and he even described to his interrogators the role of the other respondents in the various events.

The first charge in this indictment concerned an armed robbery that Sanker committed, according to the prosecution, on 20 February 2003, in a money-changing business in Ashdod, by threatening the teller and taking away with him the contents of the safe, which amounted to approximately NIS 140,000.

The other charges concerned the conspiracy which Sanker made with respondents 6 and 7, in which respondents 8-10 also took part. The indictment in SFC 1120/04, which was filed against respondents 6-10, also concerns these five charges. In order to understand the background to the offences, it should be stated that respondents 6 and 7 are the brothers of the late Hanania Ohana (hereafter: ‘the deceased’), who was murdered on 5 March 2003, and with whom Sanker became acquainted during his term of imprisonment. Following the murder of the deceased, his brothers reached a decision to kill everyone who was involved in the incident, and also everyone who was connected with them or expressed satisfaction at the deceased’s death. Inter alia, these respondents wished to cause the death of Domrani, Shelomo Zarihan, the brothers Yaakov and Nissim Alperon, Yitzhak Abergil and Hayim Shabi. In order to carry out the conspiracy, respondents 6 and 7 agreed with Sanker that in return for carrying out the planned assassinations he would receive their protection, as well as a place to live and a car. It was also agreed that the eighth respondent would serve as the contact between respondents 6 and 7 and Sanker, take Sanker to the scene of the crime and provide him with the means of carrying out the offences.

The first charge concerns an attempt to bring about the death of Shelomo Zarihan. It was alleged that on 6 May 2003 Sanker and respondents 8 and 10, together with one Guy Yehezkel, came to a meeting that was arranged with Zarihan at a café in Tel-Aviv. Sanker came to the meeting disguised as a security guard, and he carried on his person a loaded pistol. During the meeting, the fifth respondent directed his gun at Zarihan’s head and pulled the trigger, but because his pistol jammed he did not succeed in carrying out his plan. Zarihan, who saw what was happening around him, began to flee while Sanker fired at him several times and hit him in the chest, the hip and the knees. It was also alleged that shortly after the event, Sanker and respondents 8 and 9 came to the hospital where Zarihan was being treated, for the purpose of finishing their job. But, after they saw the close security that had been stationed around him, they decided to leave.

An additional charge brought in the indictments concerns the attempt to assassinate Domrani, which was described above. A third charge concerns an attempt to murder Yaakov Alperon. It is alleged that Sanker was instructed by respondents 6 and 7 to hide in Alperon’s car an explosive charge that had been prepared in advance. But Sanker had difficulty in closing the cover of the spare wheel in which he wanted to hide the explosive charge, and therefore he was compelled to take it out and leave as he came.

The fourth charge concerns an attempt to kill Yitzhak Abergil and persons with whom he was associated. It is alleged that on 24 September 2003 Sanker and the eighth respondent went with another person to a banqueting hall in Rishon LeZion, to which Abergil and his associates were invited. Sanker, the eighth respondent and their accomplice were equipped with gas canisters and an explosive charge, and their plan was to explode a car bomb at the entrance to the banqueting hall. But on their way there, Sanker, who was concerned about the killing of innocent bystanders, staged a road accident, and thus his accomplices’ plot was foiled. On the same day the three persons concerned returned to the banqueting hall, and this time they were equipped with an M-16 rifle that had a telescopic sight attached. But this time also they did not succeed in carrying out their plan, since they did not succeed in identifying Abergil and his associates.

The last charge concerns the decision of respondents 6 and 7 to assassinate the late Hayim Shabi. It is alleged that these respondents ordered Sanker and the eighth respondent to kill Shabi, and they even promised them a reward of 10,000 dollars if they succeeded in carrying out their mission. For this purpose Sanker was given a stolen car which had forged licence plates, and he was also given two pistols. On 1 October 2003, the ninth respondent, who was given the task of following Shabi, telephoned the eighth respondent and told him that he had located the victim and that he was following him. After a while, following reports that were given by the ninth respondent, Sanker and the eighth respondent arrived at the entrance of a hairdressing shop in Hod HaSharon where Shabi was present. Sanker entered and fired one shot at Shabi. Subsequently Shabi began to run away but Sanker did not stop firing more shots at him. When Shabi fell to his knees, Sanker approached him, shot him in the head and killed him. During this shooting, Sanker noticed the late Tomer Shevet, who was sitting on a fence outside the hairdressing shop and who had a similar appearance to Shabi. Consequently, in order ‘not to take any risks,’ Sanker also shot Tomer and caused his death.

3.             As I have already said, Sanker, who was arrested in March 2004, described to his interrogators the events in which he claimed to have taken part, and also the role of the other persons involved in those events. It should be emphasized that it was only due to the evidence given by Sanker that the petitioner succeeded in drawing up indictments and arresting the other persons involved. But Sanker went back on his confessions in the course of his trial, and consequently he denied carrying out the acts attributed to him.

The respondents’ trials

4.             On 25 September 2006, while this petition was pending before us, the Tel-Aviv District Court (the honourable Vice-President B. Ofir-Tom and Justices M. Sokolov and I. Schneller) convicted Sanker of all of the six charges of which he was indicted. The trial took a long time, and this can be attributed not only to the fact that more than 200 prosecution witnesses were heard, but also to Sanker himself, who contested his confession, changed his lawyers no less than three times and also filed two petitions in this court that were dismissed in limine; in these he challenged interim decisions given in his case, and attached applications to stay the proceedings until the petitions were decided (HCJ 9141/05 Sanker v. Police, on 20 October 2005; HCJ 1747/06 Sanker v. Tel-Aviv District Court, on 19 March 2006). Until his case was decided, Sanker was held under arrest, and it should be emphasized that the period of his arrest was extended, with his consent, no less than seven times.

Indeed, Sanker was in no hurry to end his trial, but this conclusion should not cause any real surprise, if only for the reason that his being held under arrest for these charges took place concurrently with another sentence of imprisonment that he was serving.

The rate of progress in the trials of the other persons involved in the various events is also not encouraging. In the trial of respondents 6-10, 79 prosecution witnesses have been heard to date, and notwithstanding the declaration of the respondent that it waives the testimony of 63 of its witnesses, there remain another 75 witnesses, of whom the main witness will be Sanker. In the trial of respondents 2-4 admittedly most of the prosecution witnesses have been heard, but even in this case the prosecution case is far from complete, in view of the case law ruling that is being reconsidered in this petition, which stipulates that the completion of Sanker’s trial is a precondition for his giving testimony for the prosecution in the trial of the persons alleged to be his accomplices. This prolongation of the proceedings also results in another side effect: I am referring to the prolonged period of arrest of the other persons involved. In this regard I will add that the period of arrest of respondents 2-3 has been extended so far seven times, and an application to extend it an eighth time is pending before the Supreme Court; the period of arrest of respondents 6-8 has been extended eight times and an application to extend it a ninth time has also been set down for a hearing; by contrast, respondents 4, 9 and 10 have been released under house arrest with various restrictions.

The reason why I have gone into detail is in order to emphasize the plight of the defendants arising from the legal position that currently prevails, in which they are compelled to wait a long time — sometimes a very long time — until their trial ends. This plight led to an application of the petitioner to the Beer-Sheba District Court to be allowed to have Sanker testify in the trial of respondents 2-4 even before his trial has ended. The petitioner pointed to the fact that of the six charges levelled against Sanker in the indictment, only in one — namely the attempt to assassinate Domrani — was he an accomplice of respondents 2-4, whereas the other charges against him were in no way related to those respondents. It was therefore argued that in view of the considerable sentence that Sanker was likely to receive following his conviction, there was no real danger that he would try to improve his position by giving false incriminating testimony in the trials of his accomplices. It was also argued that Sanker should not be regarded as someone who anticipated a benefit or reduction in sentence if he incriminated his accomplices. The reason for this was that the negotiations that he held with the prosecution authorities, in an attempt to reach a plea bargain with them, had failed. Finally it was argued that Sanker’s testimony should be allowed also because of the considerable harm to the public that was involved in compelling the prosecution to stay the proceedings being conducted against respondents 2-4 until his trial ended.

The District Court rejected these claims, while emphasizing the importance of the Kinsey rule in protecting the rights of the defendant and the witness-accomplice. It said:

                ‘There is a concern that giving permission to have a witness who is an accomplice in the offence testify may violate the rights of the defendant and also the rights of the witness himself as the accused in the other case. We should not forget that according to what is accepted in our legal system the prosecution may give a benefit to a witness who is an accomplice in an offence, in order to encourage him to testify in the other trial. It is obvious that such a situation, even if we agree that this is an unavoidable necessity, is problematic with regard to the defendant against whom the accomplice in the offence testifies. The power given to the prosecution to file indictments and to make offers that include benefits to one defendant, prima facie at the expense of another defendant —again, even if this is necessary in view of the rampant and serious nature of the crime — does indeed require deep consideration and a broad perspective’ (p. 3 of the decision of 9 October 2005).

The District Court went on to discuss how there may be cases that require a departure from the Kinsey rule, but in its opinion the conditions justifying this were not satisfied in the present case:

                ‘[Sanker’s] reasons for testifying are complex, and this court cannot determine that he definitely has no personal interest that relates to his trial, if he testifies before us at this stage’ (ibid., at p. 4).

The dispute in this petition and the scope of judicial review of interim decisions in criminal proceedings

5.             The current petition concerns the aforesaid decision of the District Court, and in essence it seeks to persuade the court to abandon the ‘Kinsey rule.’ In this petition the petitioner also includes the case of respondents 6-10 and it requests that the court allows it to summon Sanker to testify in their trial as well. As we have said, Sanker’s trial ended recently, and therefore the petition has prima facie become moot, since there is no longer any obstacle — even according to the prevailing normative position — to his testifying in the trials of respondents 2-4 and 6-10. Moreover, it is well known that, unlike in civil proceedings, interim decisions given in criminal proceedings may be appealed within the framework of an appeal against the final judgment, and not previously or in any other framework. It is only in exceptional cases, by virtue of special provisions of statute that allow this, that the parties to the criminal proceeding may challenge decisions that have been given before the proceedings have ended (see ss. 74(e) and 147 of the Criminal Procedure Law [Consolidated Version], 5742-1982).

This matter, i.e., the inability to challenge judicial decisions immediately after they are given, has resulted and continues to result in the filing of many petitions in this court. These are designed, in practice, to serve as a substitute for the possibility of appealing interim decisions in criminal cases. These attempts are consistently rejected, and this was discussed by Vice-President M. Shamgar:

                ‘The various procedural arguments that are raised before the criminal court and are within its jurisdiction are not considered by the High Court of Justice, but only — if there is a basis and need to do so — in the appellate court, which reviews the judgment of the trial court in a criminal case, as long as there is no contrary provision in statute.

                …

                In summary, if a decision is made in criminal proceedings, and a party is of the opinion that it is erroneous, he has the right to include this argument in the appeal on the verdict, if one is filed. He does not have a parallel right to apply to this court sitting as the High Court of Justice in a matter of procedure, and the court will not intervene in such a case nor adopt for itself the role of the court of appeal in criminal proceedings’ (HCJ 398/83 Avitan v. Bench of Three Justices [2], at pp. 470-471, and see also HCJ 583/87 Halperin v. Vice-President of Jerusalem District Court [3], at p. 700; HCJ 6371/94 Deri v. Jerusalem District Court [4]; HCJ 6876/01 Barlai v. Justice of Tel-Aviv Magistrates Court [5]; HCJ 8800/05 Duha v. Tiberias Magistrates Court [6]).

There has been a whole host of decisions in the same vein, that the intervention of the High Court of Justice in decisions given in the course of a criminal trial will be restricted only to rare cases in which there is an argument concerning a lack of jurisdiction or an extreme case of arbitrariness in a purely administrative field (Halperin v. Vice-President of Jerusalem District Court [3], at p. 702); it has also been held that such intervention is also possible in a case where the petition raises a fundamental question that has widespread ramifications, in circumstances where dismissing the petition will cause irreversible damage that cannot be repaired by means of an appeal on the final judgment (HCJ 267/88 HaIdra Rabbinical College Network v. Local Affairs Court [7], at pp. 732 et seq.; HCJ 620/02 Chief Military Prosecutor v. Appeals Court Martial [8], at p. 631; HCJ 9264/04 State of Israel v. Jerusalem Magistrates Court   [9]).

Notwithstanding all this, in our opinion the current petition falls within the scope of the exceptional cases in which this court can consider a petition that is brought before it. The significance of the arguments raised in the petition goes far beyond the concerns of the parties in this case, and in practice these arguments may affect every criminal act in which several perpetrators are involved. The ‘Kinsey rule,’ which the petitioner wishes to have reconsidered, is one of the cornerstones on which the criminal law and the rules of evidence in our legal system are currently based. Moreover, the doubts that have arisen as to the suitability of the Kinsey rule to the legal position today also justify our considering this petition. Finally it should be emphasized that dismissing the petition in limine, for the reason that this court is not a court of appeal for interim decisions in criminal cases, would not leave the petitioner any practical possibility of bringing before us the fundamental arguments that it wishes to make. Admittedly the proceedings that are currently taking place against the other persons involved in the incidents, with the exception of Sanker himself, are, at the moment, in their early stages, but after they end — whether in a conviction or an acquittal — the arguments of the petitioner will have become hypothetical and irrelevant, and therefore it was not be able to challenge the decision then either. This unique situation will only allow the petitioner to bring its arguments before us by filing a petition that is directed at the interim decision.

Application to join the state’s petition

6.             As I have said, respondents 2-4 are alleged, inter alia, to be responsible for the death of the late Shaked Shelhov. Her parents, Ilana and Amir Shelhov, applied, by virtue of r. 20(b) of the High Court of Justice Procedure Regulations, 5744-1984, for an order that they should be joined as respondents in the petition. In their opinion, the prolongation of the proceedings caused by the Kinsey rule affects not only the defendant, but also the victims of offences and their families, whose interests were recognized by the legislature in the Rights of Victims of Crime Law, 5761-2001. These persons cannot continue their lives in a normal manner while the completion of the legal proceedings against the persons accused of harming them or their loved ones cannot be foreseen, and this problem increases the longer the proceedings are drawn out.

I understand the applicants’ pain. It is genuine and sincere. Notwithstanding, I will recommend that they are not joined as parties, in order not to complicate the issue that requires a decision, and also because we were cognizant of their arguments when we considered this petition.

The petitioner’s arguments

7.             On 16 Tevet 5766 (16 January 2006) we gave an order nisi, and after the detailed written replies of the respondents were filed, we also heard their oral argument. Below I shall state the arguments of the parties, and I will begin with those of the petitioner.

8.             The petitioner’s position, in a nutshell, is that the application of the Kinsey rule deals a serious blow to law enforcement, the protection of the public against dangerous criminals and even the constitutional rights of persons under arrest. It argues that since the 1970s, when the Kinsey rule was enshrined in the case law of this court, there have been changes in the legal climate in Israel: the basic outlooks on which our legal system is based have changed; many changes have been made to legislation and case law; the offences with which the law enforcement system is required to contend are more complex and involve more parties than in the past. In view of all this, it argues that the Kinsey rule has become a millstone and it is no longer suited to the legal reality of today. Moreover, the petitioner claims that the concerns that gave rise to the Kinsey rule are not supported by experience, since in many cases the witness has no interest at all in incriminating his accomplice. On the contrary, the prevailing phenomenon is that many witnesses wish to aid their accomplices who are their co-defendants or who are indicted separately, and very often — too often — the court is required to declare them hostile witnesses and to prefer the evidence that they gave during their interrogation, in accordance with the provisions of s. 10A of the Evidence Ordinance.

In the petitioner’s opinion, the Kinsey rule created a strict rule of admissibility, which prevents the court, albeit temporarily, from hearing the testimony of the accomplice before his trial has ended. This rule, according to the petitioner, is not only contrary to the provisions of s. 2 of the Evidence Ordinance, which provides that everyone is competent to testify, but it conflicts with the trend that can be seen in many judgments, which has gradually abandoned the rules concerning the admissibility of evidence and replaced them with rules concerning its weight. The impetus driving this trend, in the petitioner’s opinion, is the desire to place before the court as much of the relevant evidence as possible, in the belief that this will lead to a more effective discovery of the truth. In contrast, the petitioner goes on to argue that the Kinsey rule prevents the prosecution from placing before the court a complete factual picture, and therefore it is nothing more than an obstacle in its quest to discover the truth. According to the prosecution, the court should not be burdened with strict rules, but it should be allowed to act as it does on a daily basis when it is required to determine questions of the credibility of witnesses, the weight that should be attributed to their testimony and the additional evidence that is required, if at all, in the circumstances of the case.

In this context, the petitioner goes on to point out that the Kinsey rule was not applied to state’s witnesses, who are promised consideration for their testimony, even though in their case there is a real fear that they will seek to satisfy the prosecution even at the cost of giving false or fabricated testimony. By contrast, the witness-accomplice is not promised any consideration, and therefore the fear that he will expect to receive consideration for his testimony is merely theoretical, and so too is the fear that his testimony is unreliable. The petitioner also says that under the current state of the law and as a result of the heavy burden laid upon the legal system — which causes proceedings to be dragged out, sometimes to an intolerable degree — the prosecution may regard itself as having no choice other than to make an agreement with the accomplice, for reasons that are inappropriate, in which he is given various benefits in order to bring about a speedy conclusion to his trial. This situation may lead to an additional undesirable result, namely that defendants seek to prolong their trials deliberately, in order to exert pressure on the prosecution to make agreements with them that may undermine the administration of justice and the public interest.

The petitioner further argues that where defendants are brought to trial in one indictment and they testify in their own defence, the court may rely on the testimony of one defendant against his accomplice, notwithstanding the conflict of interests that there may be between them. Against this background, it questions whether there is any material difference that makes it essential to refrain from doing this where accomplices in a crime are brought to trial in two separate indictments. In this respect, the petitioner also refers to the provisions of s. 155 of the Criminal Procedure Law, which allows a defendant who has pleaded guilty to the commission of the offences attributed to him to be called to testify against his co-defendants after he has been sentenced. It also emphasizes that a defendant’s guilty plea, especially where it relates also to the role of the other defendants, may prejudice the judges sitting on the case, and notwithstanding this the legislature saw fit to allow his testimony.

An additional provision which the petitioner thinks is inconsistent with the Kinsey rule is s. 10A of the Evidence Ordinance. It is well-known that this provision allows statements that were made by the witness in interrogations to be adduced as evidence against an accomplice who is on trial where he changes his story in the course of his testimony before the court. The petitioner emphasizes that it is possible to make use of this provision even when the testimony of the accomplice is heard only after the accomplice’s trial has ended, so that the Kinsey rule is likely to be rendered meaningless.

The petitioner goes on to refer to a whole host of rulings made by this court, which have limited the application of the Kinsey rule. In the petitioner’s opinion, these cases prove that the court is no longer entirely satisfied with the logic of this rule, which raises questions as to whether its existence is justified.

9.             At this point, the petitioner discusses at length what it defines as the ‘Kinsey rule damage,’ which includes matters that we have already mentioned, namely that the implementation of the rule leads to a considerable prolongation of proceedings as a result of the need to wait until the trial of the witness-accomplice is concluded; in many cases, and especially in serious felony cases in which defendants are held under arrest pending trial, this leads to prolonged periods of arrest that are sometimes unreasonable; in this respect, there is a concern that defendants who have been classified as a danger to the safety and security of the public may be released before their cases are decided. An additional side effect is that the prosecution authorities are sometimes compelled to reduce the seriousness of the charges, waive essential witnesses and make plea bargains that are unduly favourable to accomplices. It is argued that this reality gives the witness-accomplice an expectation that he will receive a benefit in return for his testimony, and this expectation results in the witness-accomplice doing whatever he can in order to delay the proceedings in his case.

But the petitioner argues that the deleterious effects of the Kinsey rule are not limited to the aforesaid, but that the rule also affects the quality of the actual legal proceeding. This is because the rule dictates the order in which the witnesses testify, and may also result in the prosecution waiving the testimony of the accomplice, even though it is important and pivotal to the case. The failure to bring the testimony of the accomplice before the court at the right time — and, in the worst case scenario, not bringing it at all — undermines the ability of the court to weigh the evidence, arrive at the truth of the matter and do justice. Moreover, the Kinsey rule requires the trial court to determine, already at a preliminary stage, whether the concerns upon which this rule is based exist in the case before it or whether the prosecution should be allowed to have the accomplice testify. This determination, in addition to its inherent difficulty, requires the court to decide questions of credibility at a preliminary stage, rather than when it should do so, at the end of the trial.

Finally, the petitioner is of the opinion that the Kinsey rule does not need to be cancelled in statute. It was emphasized that the Kinsey rule is the creation of the court, and therefore the court also has the power to cancel it. Moreover, the rule outlined in the Kinsey case was originally defined as nothing more than a ‘proper practice.’ It does not embody any basic right that the respondents would like to see in it, and for this reason also the power to cancel or change it is not within the sole jurisdiction of the legislature.

The arguments of the eleventh respondent — the Public Defender’s Office

10. The Public Defender’s Office, which was joined as a respondent in this petition, is of the opinion that there is no reason to cancel the Kinsey rule, since it has become embedded in Israeli law as an inherent part of the constitutional right to a fair trial. In the opinion of this respondent, any violation of this right should satisfy the conditions of the ‘limitations clause’ provided in s. 8 of the Basic Law: Human Dignity and Liberty, namely it should only be done in statute; it should be for a proper purpose, and in this context the Public Defender’s Office believes that considerations of efficiency are not a basis for such a purpose; and it should be to an extent that is not excessive, a requirement that it is argued is also not satisfied in view of the serious harm to defendants that will arise from a departure from the Kinsey rule. It is argued that the interest of shortening the length of the legal proceeding may be achieved in other ways that are less harmful, such as increasing the number of judges in the legal system.

In the opinion of the Public Defender’s Office, the rationale underlying the Kinsey rule remains valid today. Moreover, in its opinion, arguments that were made in the past against this rule have, over the years, become arguments that support it, and therefore today, even more than in the past, it should remain unchanged. In this context it was emphasized that the Kinsey rule came into existence when the prosecution was required to supplement the testimony of an accomplice with the stringent requirements of ‘corroboration,’ something which reduced the concerns inherent in such testimony. But this requirement was repealed in 1982, and now, under s. 54A(a) of the Evidence Ordinance, the testimony of an accomplice only requires ‘support,’ something that makes the concern for the rights of the defendant even greater than it was in the past.

The Public Defender’s Office emphasizes that the Kinsey rule was originally defined as a ‘proper practice’ and not as a strict rule without exceptions. Indeed, this respondent set out in its reply a thorough review of judgments in which the court limited the rule’s application and even held than in circumstances where the rationale underlying it does not exist, it should not be used. Notwithstanding, the importance of the rule should not be underrated precisely in those cases where it has not been qualified. It was therefore argued that the current state of the law is that the court has discretion to consider, in each case on its merits, whether the principle outlined in the Kinsey rule should be applied or not. Granting the petition and cancelling this rule are tantamount, in the opinion of the Public Defender’s Office, to depriving the courts of this discretion and imposing upon them a strict rule that will undermine its ability to arrive at the truth.

The Public Defender’s Office emphasizes that the Kinsey rule belongs to the field of criminal procedure and not to the rules of evidence. It is argued that it is not — as can be understood from the petitioner’s arguments — a rule of admissibility that concerns the competence of the accomplice to testify against his co-defendant, but a rule that postpones the date of hearing the testimony to a later stage of the trial. For this reason, it believes that there is no basis to the argument that the cancellation of the Kinsey rule is consistent with the outlook that is currently prevalent in the rules of evidence, namely the replacement of rules of admissibility with rules of weight.

It is also argued that the difficulties created by the application of the Kinsey rule are a result of the immense burden of cases placed on the legal system, but these reasons do not justify a violation of a defendant’s right to a fair trial. It is also argued that the concern expressed by the petitioner, that the application of the Kinsey rule will result in defendants who are a serious danger to the public being released on bail is purely theoretical. In support of its position, the Public Defender’s Office presented us with empirical data that it assembled, from which it can be seen that that the courts grant applications to extend the period of arrest under s. 62 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, at a rate of almost 99 per cent. In this regard, the Public Defender’s Office added that according to the figures in its possession, 75 per cent of persons under arrest consent to the extension of their period of arrest, and for this reason also the concern that they will be released is unfounded.

Finally, The Public Defender’s Office points to new issues that may arise if the Kinsey rule is cancelled. It is argued that when preparing the witness to testify, the prosecutors will be required to meet with him while both parties wear two hats: the accomplice is a witness but also a defendant, whereas the prosecutors are not only the prosecutors in the trial of his accomplices but also in his trial. In such a scenario, the witness will be subjected to pressure, on the one hand, and an open and hidden agenda, on the other, and these will have ramifications on the testimony that he will give in the court. It was also argued that cancelling the Kinsey rule will lead to several criminal trials taking place simultaneously, and this increases the danger that conflicting decisions will be given.

The arguments of the twelfth respondent — the Israel Bar Association

11. The Israel Bar Association (hereafter: ‘the Bar Association’) adds several arguments to those of the Public Defender’s Office. It complains that the consequences of the relief sought in the petition may be wider than necessary. In its opinion, the circumstances of the case that is the subject of the petition are difficult and exceptional, but this difficulty should not be exploited to achieve the general purpose of speeding up criminal trials by denying defendants a protection of paramount importance. Moreover, the Bar Association is of the opinion that the cancellation of such a fundamental element of the rules of evidence should be made in a criminal appeal, and not in a petition to the High Court of Justice.

The Bar Association refers in its arguments to s. 10A of the Evidence Ordinance. It argues that the arrangement set out in this section undermined the rights of the defendant, and this now justifies the existence of the Kinsey rule, so that they are not undermined even further. Just as s. 10A is the result of legislation, so too any additional violation of the rights of defendants should be made in legislation. It also argued that in view of the well-known policy of the prosecution authorities, which only rarely file indictments on the offence of perjury, the fear of miscarriages of justice becomes even greater.

Moreover, it was emphasized that two government-sponsored draft laws relating to the cancellation of the Kinsey rule were tabled in the Knesset, but did not become law (see the draft Evidence Ordinance Amendment Law (no. 10), 5752-1992; the draft Evidence Ordinance Amendment Law (Amendment no. 13) (Testimony of Accomplice), 5759-1999). It is argued that this fact shows that the legislature did not desire the cancellation of the Kinsey rule, and the court should not do what the Knesset refused to do.

The arguments of respondents 2-10

12. The second respondent concentrated on the manner in which the petitioner chose to attack the decision of the trial court. He argues that this was an interim decision made in a criminal proceeding, which may not be appealed. He also argues that the petition suffers from a significant degree of delay, in view of the considerable amount of time — more than a year — that passed between the date of filing the indictment against Sanker and the filing of the petition. This delay shows that the petitioner did not do enough in order to increase the speed of the trial and thereby to minimize the damage caused by the application of the Kinsey rule.

The third respondent is of the opinion that the petitioner is to blame for the slow rate at which Sanker’s trial is being heard, and the court should not allow him to suffer because of the petitioner’s failings. The fifth respondent also supports this argument concerning the responsibility for the delay in the hearing of the trial. The third respondent further believes that the decision of the trial court shows that there is a real concern that his defence will be prejudiced if Sanker’s testimony is heard now, and for this reason too it should not be set aside. Finally, if the petition is granted, the third respondent petitions that we disqualify the panel of judges that is trying his case in the District Court.

Respondents 6-10 also mentioned in their arguments the reasons underlying the Kinsey rule. These respondents also expressed the concern that cancelling the rule will result in a flood of appeals and applications for retrials, where it becomes clear that there is a disparity between the accomplice’s story when testifying and the story he tells in his own trial. This result, it is argued, will further increase the burden of cases in the courts.

Respondents 6-10 are also of the opinion that the Kinsey rule de facto completes the provisions set out in s. 155 of the Criminal Procedure Law, which concerns the testimony of accomplices who are charged in the same indictment, and it determines that a defendant who pleads guilty should not be brought to testify as long as his trial has not ended. They argue that the Kinsey rule prevents the prosecution from being able to render this provision meaningless by indicting the accomplices in separate trials. Finally, these respondents complain against what they call ‘a systematic and continuing reduction of the rights of defendants,’ and they too argue that they should not be held responsible for the considerable burden that weighs upon the court system.

Deliberations

Testimony of an accomplice

13. The source of the difficulty inherent in the testimony of an accomplice in crime lies in the other role — the role of a defendant — which he has while he is testifying. The main concern that the Kinsey rule is intended to allay is that a witness, who is indicted for the same incident with regard to which his testimony is required, will focus — when he is giving his testimony — upon obtaining a benefit in his trial, and consequently he will seek to exaggerate the role of his accomplice in the commission of the offences, while minimizing his own role. This difficulty increases in view of the concern that when the defendant has the opportunity to cross-examine the witness, the latter will become silent and invoke the privilege against self-incrimination, and thereby it will not be possible for the defendant to undermine the credibility of the story that the witness presented in his evidence-in-chief. In the words of Lord Abinger that were uttered in the first half of the nineteenth century:

                ‘The danger is that when a man is fixed and knows that his own guilt is detected, he purchases impunity by falsely accusing others’ (R. v. Farler [96], at p. 419).

Although the seriousness of this concern should not be belittled, it should also not be denied that it is more significant in legal systems where the verdict is given by a jury, and not by professional judges for whom the task of weighing up the testimony of witnesses is an everyday matter. Here we should mention once again that in our legal system there is also no prohibition against — or restriction upon — calling as a witness anyone whose testimony may give rise to questions of credibility, such as mentally-ill persons, children, state’s witnesses or persons who have been convicted in the past of perjury, even though no one denies that these cases also give rise, prima facie, to questions of credibility. Against this background, Justice T. Strasberg-Cohen emphasized the role of the court in weighing up the testimony heard by it:

                ‘A concern that the truth may be distorted does not justify a exception to the duty to testify. Such a concern exists in many cases where witnesses may give testimony that is untruthful for various reasons, whether revealed or hidden, and this does not prevent them from testifying; otherwise, I fear that there would be grounds for preventing the testimony of very many witnesses and the evidence that is brought before the court would be diluted. The proper party to address this concern is the court, which carefully and responsibly examines and weighs the credibility of the testimony given before it. The solution is certainly not to declare the testimony inadmissible ab initio because of a concern that the truth may be distorted. The witness should therefore be compelled to testify and it is the task of the judge who hears his testimony to give it the proper weight, with the aid of the various tools that the law, knowledge and experience have given him’ (HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at pp. 766-767).

Similar remarks were also uttered by Justice Y. Kedmi:

                ‘It is well known that “everyone is competent to testify” — as stated in section 2 of the Evidence Ordinance — including those persons who have an interest in the outcome of the trial; and the fact that they are “interested” in the outcome as aforesaid only affects the question of their credibility and the weight of their testimony’ (CrimA 725/95 Mandelbrot v. State of Israel [11]).

14. The origins of the practice that was adopted in our law by means of the Kinsey rule lie in the English common law, in which it is the jury that decides the verdict. I am referring to the two well-known judgments of R. v. Winsor [97] and R. v. Pipe [98], which were discussed at length in Kinsey v. State of Israel [1] (see also the remarks of Justice Y. Kahan in CrimA 169/74 Kadouri v. State of Israel [12], at p. 402).

This significant difference between the legal systems was not ignored by the justices who sat in Kinsey v. State of Israel [1] (see p. 488 of the judgment), but they saw fit to adopt this practice despite it (for criticism of the adoption of this practice by the Israeli legal system, against the background of the fact that our legal system does not rely on juries, see U. Struzman, ‘The King is Naked or the Jury that Controls the Court,’ 13 Tel-Aviv University Law Review (Iyyunei Mishpat) (1988) 175; Y. Ginat, ‘Has the Time Come to Re-examine the Kinsey Rule,’ 42 HaPraklit (1995) 376). Additional concerns about the question whether the Kinsey rule should be allowed to continue should have arisen when the Evidence Ordinance was amended in 1979 (the Evidence Ordinance Amendment Law (no. 4), 5740-1979), and the arrangement that today is provided in s. 10A of the Ordinance was adopted. It is well-known that this arrangement, which was designed to provide a solution to the problems created by the considerable pressure that was exerted on prosecution witnesses in order to deter them from testifying, allowed the court to prefer the contents of a witness’s statement as recorded in his police interrogation to a later version which he gives in his testimony in the court, which is a result of the pressure exerted upon him. A reading of s. 10A shows that the legislature did not see fit to distinguish between an ordinary witness and a witness-accomplice who is involved in a trial for the same incident with regard to which his testimony is required. Consequently this court has held that there is nothing to prevent the arrangement enshrined in s. 10A from also being used with regard to accomplices in a crime:

                ‘The addition to the aforesaid Ordinance, which finds expression in section 10A, was only designed for cases in which the witness denies in court the content of the statement, claims that he does not remember the content or gives in the court testimony that differs from the statement in a material detail. Such a change in the presentation of the facts may find expression in the statements of a witness that has no connection or involvement in the offence, and it may occur in the statements of a witness that is an accomplice in the offence; as stated in the explanatory notes that accompanies the draft Evidence Ordinance Amendment Law (no. 4), 5738-1978, the purpose of the law is to remedy injustices that sprout from the fertile soil of the criminal trial, and in this regard there is, of course, no difference whether we are speaking of an accomplice in the offence or any other witness… In summary, it is obvious that the fact that a certain witness is an accomplice in the offence is not capable of excluding him from the class of persons whose testimony may be subjected to the aforesaid section 10A’ (CrimA 949/80 Shuhami v. State of Israel [13], at p. 69, and see also CrimA 501/81 Abu-Hatzeira v. State of Israel [14], at pp. 149-150).

Vice-President Shamgar affirmed this position in another case as well, where he said that the express wording of the legislature in s. 10A of the Evidence Ordinance overrides the proviso that was established in Kinsey v. State of Israel [1] concerning the need to postpone the date of hearing the accomplice’s testimony until the proceedings against him have been concluded:

                ‘There is no basis for a distinction between types of witness according to their connection to the offence or according to whether they are, or are not, accomplices in the offence, because the wording of s. 10A cannot serve as a basis for a distinction between a witness who was involved in the offence or was an accomplice in it and a witness who was not involved or an accomplice… Above the rules of evidence… there is an express and later stipulation of the legislature, and in the areas where it applies, it has greater weight, and if it arises from its wording that it provides a new qualification of the application of a rule of evidence that was previously accepted, the express stipulation of the statute naturally prevails’ (CrimA 777/80 Beinashvili v. State of Israel [15], at pp. 470-471). 

15. The arrangement provided in s. 10A of the Evidence Ordinance, when applied to the witness-accomplice, prima facie undermines the Kinsey rule. By this I mean that even when the testimony of the accomplice is heard only after he is sentenced, the filing of the confession that he made during his interrogation exposes the court to that early version that was given before the legal proceedings against him were concluded, a situation that the Kinsey rule sought to prevent. How can these contradictions be resolved? It can only be that this is another expression of the outlook that leaves the work of weighing up the testimony to the court, which has before it all of the versions uttered by the witness, so that it can determine — as it so often does — which it thinks is the most credible version in view of the special circumstances of each case that comes before it. It should be emphasized that, when considering these versions, there is nothing to prevent the court from also taking into account the fact that the earlier version that was uttered in the course of the investigation was put forward by an accomplice, and consequently it should be treated with caution. But this in itself does not result in the inadmissibility of the version (for the reasons justifying this outlook, see A. Strasnov, ‘In Favour of Applying Section 10A of the Evidence Ordinance to Co-defendants,’ 38 HaPraklit (1988) 660, and for those opposing it, see N. Zaltzman, ‘Co-defendants and Section 10A(a) of the Evidence Ordinance [New Version],’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 625).

16. A further remark on the subject of s. 10A of the Evidence Ordinance: the Kinsey rule concerns a witness who made a statement in his interrogation that incriminates himself and his accomplice in a criminal act. Where this witness admits during his trial the facts of the indictment that was filed against him, the situation is simple because immediately after he is sentenced it is possible for him to testify against his accomplice. The difficulty focuses therefore on those witnesses who go back on their previous statement and deny in their trial the offences attributed to them. The considerable experience that has been accumulated during the many years since the Kinsey rule was determined and since s. 10A of the Evidence Ordinance was enacted shows that the majority of these witnesses, when they are called to testify in the trial of their accomplices, deny the confessions that they made in their interrogation even if they confessed willingly in their own trials. In such cases, the prosecution is compelled, almost as a matter of course, to resort to what is stated in s. 10A(c) of the Evidence Ordinance. Against this background, we are compelled to ask whether there exists any longer a reason for the lengthy delay in finishing the witness’s trial, when what will ultimately be used to decide the trial of the accomplice is the witness’s statement to the police and the witness’s explanations for going back on it during his testimony in the court. With regard to the concern that even the statement made to the police was wholly or partially false, the answer to this lies in the requirement of s. 10A(d) of the Evidence Ordinance concerning additional evidence that constitutes ‘support.’

The difficulties inherent in applying the Kinsey rule

17. Only a short time after the Kinsey rule was enshrined in the case law of this court did its consequences begin to emerge. As time passed, and the burden on the court system increased, the calls to change it became stronger (see A. Kammar, ‘Towards a Cancellation of the Kinsey rule,’ 42 HaPraklit (1995) 548, at p. 559). The criticism mainly targeted the fact that the rule, which provides that a witness should not normally testify until the proceedings against him have been completed, led to a significant prolonging of the proceedings, caused a miscarriage of justice to the defendant who was compelled to wait until the case of the witness-accomplice ended and increased the burden placed on the legal system. This was discussed by my colleague Justice M. Naor:

                ‘The Kinsey rule governs the holding of trials and makes it difficult, very difficult, to end them quickly, in addition to many objective difficulties that are encountered by the judicial system’ (CrimApp 9474/04 State of Israel v. Alzam [16]).

Elsewhere this was discussed by Justice M. Cheshin:

                ‘Once again we are encountering, as we do on a frequent basis — on too frequent a basis — the stumbling block known as the Kinsey rule. The main prosecution witness is the applicant’s accomplice in the horrifying act. That accomplice, who is supposed to testify against the applicant, has himself been indicted for the killing of the girl, and because his trial is still in progress, the proceedings against the applicant have ground to a halt’ (CrimApp 5899/00 Ivorkin v. State of Israel [17]).

18. This problem became more acute in view of the provisions of the law concerning arrests and the concern that defendants that are a danger to the public will be released before their trial ends. There is no need to re-emphasize the seriousness of the violation of the individual’s basic freedoms resulting from his being held under arrest until the end of proceedings, during a period when the defendant enjoys the presumption of innocence (see CrimFH 2316/95 Ganimat v. State of Israel [18]; CrimApp 8087/95 Zada v. State of Israel [19]). This outlook has also led to restricting the length of the period of arrest (see ss. 21, 61 and 62 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996). The longer it continues and the violation of the defendant’s rights increases, the smaller the justification for ordering the arrest to continue. Against this background, this court has on more than one occasion found itself in a real dilemma, where the barrier erected by the Kinsey rule compels the parties to postpone the trial until the proceedings taking place against the witness-accomplice have been completed, while this delay involves the defendant remaining under arrest for a protracted period. Justice E. Hayut referred to this choice of two evils when she was asked to order the continued arrest of a defendant for the ninth consecutive time:

                ‘The situation before us forces us to choose between two evils. One is the release of the respondent who is charged with a terrible act that led to terrible consequences — the death of a three year old child. Such an act indicates the considerable danger that the respondent poses and the concern that his release on bail represents a real risk to public safety and security. The other evil is leaving the respondent under arrest for such a long period, despite the presumption of innocence that he has’ (CrimApp 12047/04 State of Israel v. Ben-Yishai [20]).

On another occasion Justice M. Cheshin said the following:

                ‘It is not an everyday occurrence that the state applies for a fifth time to hold a defendant under arrest for more than nine months… Nonetheless, not only has the respondent been under arrest for such a long period, but it is difficult for us to know when his trial will end. The reason for this is that the state wishes to call Yihya Turk, his accomplice in the conspiracy, to testify against the respondent, but it is prevented from doing so because Yihya Turk is standing trial in a separate proceeding for the very same incident, and the Kinsey rule prevents the state from calling him immediately to testify against the respondent. Admittedly, the state applied to the court to allow it to call Turk to testify against the respondent, but the court refused to grant the application. The respondent’s trial appears to be unable to proceed: it cannot progress until Turk’s trial ends, and we do not know when Turk’s trial will end… The Kinsey rule strikes us again and again, and it appears that nothing can help us’ (CrimApp 1657/04 State of Israel v. Ben-Yishai [21], at p. 581, and see also HCJ 5091/03 Turk v. Attorney-General [22], at p. 672).

This issue — the inclination to release a defendant who has been under arrest for a prolonged period without the end of the proceedings against him being on the horizon — has led to another serious phenomenon. I am referring to the creation of a considerable opportunity for manipulations on the part of defendants, who have an incentive to exert pressure on the witness-accomplice in order to obtain — at the end of a ‘war of attrition’ — the release of the defendant from arrest. Moreover, some authorities have expressed a concern that the sword hanging over the prosecution’s head — that a defendant who is standing trial will be released from arrest because of the protracted proceedings against him — may induce it to enter into lenient plea bargains with defendants or to remove serious offences from the indictment and other steps whose purpose is solely to achieve a speedy conclusion of the trial.

A general criticism has also been levelled at the Kinsey rule for causing a delay in hearing the most central testimony — the testimony of the person who is alleged to have been the defendant’s accomplice and as such has first-hand knowledge of the facts, since he was involved in them. In view of this, it has even been argued that preventing the testimony from being heard denies the court important and relevant evidence and impairs its ability to arrive at the truth, and therefore also its ability to do justice (Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 759).

19. It follows from this that the rule that was intended to further the interests of doing justice — by preventing the hearing of testimony whose reliability is questionable — is precisely what may result in justice being undermined, or at least to leniency being shown to defendants who have committed the most serious offences. This, I think, was what Justice M. Cheshin meant when he compared the Kinsey rule to a ‘chemical compound that is capable of dissolving justice’ (CrimApp 7971/01 State of Israel v. Teakman [23]). Another result of the protraction of proceedings is that it undermines the interest that the court will arrive at the truth and dispense justice to defendants within a reasonable time, since, in the words of Dr. H. Sandberg, ‘in order to realize the goals of the criminal law, it is also necessary that the sentence that is imposed on the defendant is effective; effective means immediate, since the effect of criminal sentencing is significant only when the sentence is immediate’ (H. Sandberg, Rights of Defendants: the Right to a Separate Trial (2001), at p. 27; see also CrimA 125/75 Meirom Ltd v. State of Israel [24], at p. 75). It should be said at this stage that in the past it is possible that the legal system was able to withstand the huge burden and the lengthy proceedings inherent in the application of the Kinsey rule. But it seems to me that those times have passed and will not return. The case load that exists in the courts today cannot be compared to the case load that existed when the Kinsey rule was made (see the report of the Commission for Examining the Structure of the Regular Courts in Israel (1997), chaired by Justice T. Or, and especially pp. 15-17 of the report; HCJ 8850/02 Pastinger v. Minister of Justice [25]; CrimApp 8639/05 State of Israel v. Almarboa [26]; CrimApp 2846/97 State of Israel v. Maharom [27]). Similarly, the scale of crime that we encounter today, which sometimes spans the whole globe, is incomparably greater than the scale of crime with which the legal system was required to contend when it created the Kinsey rule. Moreover, the sophistication of crime, the number of persons involved in it and its gravity are not what they were in 1976, the year in which the Kinsey rule was introduced.

20. In view of these difficulties, two draft laws were tabled with the aim of cancelling the Kinsey rule (see the draft Evidence Ordinance Amendment Law (no. 10), 5752-1992 (Draft Laws 5752, at p. 170); the draft Evidence Ordinance Amendment Law (Amendment no. 13) (Testimony of Accomplice), 5759-1999 (Draft Laws 5759, at p. 314)). The explanatory notes to the draft law of 1992 state:

                ‘Often it is not possible to bring a person to trial if his accomplice in the offence is not called to testify in that proceeding. If the accomplices are charged in one indictment and the accomplice who gave incriminating testimony at the police station and whose testimony is required does not plead guilty, it will not be possible to sentence him and to call him to testify as a state’s witness… Without the accomplice’s testimony, it is possible that the prosecution will be unable to prove guilt, even on a prima facie basis, and in any case the silence of the defendant, the accomplice, at the trial will be sufficient to result in the acquittal of his accomplice in the offence. Filing separate indictments will also be of no avail in view of (the Kinsey rule)… This delay in the proceedings harms the social interest of deterring offenders and bringing them to justice within a reasonable time. The rule also harms defendants who suffer from an injustice by waiting for their trials… The draft law will correct this legal position. The draft law does not ignore the concern that the testimony of the witness will be self-serving and may besmirch his accomplice with a story that will benefit him in his forthcoming trial. This will be considered by the court, taking into account the circumstances and the other evidence, as in any other case where a witness has an interest or inclination to pervert the truth’ (emphases supplied).

These legislative proposals did not become law, but the recognition of the difficulties inherent in the application of the rule — in an attempt to limit its scope — resulted in a whole host of cases that established an approach that gave the Kinsey rule a purposive interpretation, and where the rationale underlying it did not exist, the courts did not see fit to order the testimony of the witness to be postponed. This was discussed by my colleague, Justice D. Beinisch:

                ‘In circumstances where we are not dealing with accomplices in the same overlapping factual parts of the offence, when there is no concern that the proposed witness has an interest in incriminating his accomplice and omitting his own part in the offence or minimizing it, and when it is clear from all the circumstances of the case that we are not dealing with a witness who is seeking a benefit for himself in return for that testimony, and there is also no reason to assume that he has been promised any benefit, it is difficult to see any justification for refraining from calling the witness-accomplice to testify until his trial ends. Moreover, since the Kinsey rule acquired a foothold in our legal system, there have been changes in legislation and often we are dealing with a witness who is not interested at all in testifying against that defendant… In cases such as this, when counsel for the defence has an opportunity to try and undermine the weight of the testimony, the reason for following the “Kinsey rule” and for preferring it to the need to realize the purpose of the proceedings and to hold a criminal trial efficiently and fairly is weakened’ (CrimApp 7372/03 State of Israel v. Moses [28]; see also CrimA 1774/02 Kadosh v. State of Israel [29], at para. 12 of the judgment).

 For decisions in a similar vein that were made in the trial courts, see CrimC (TA) 40063/01 State of Israel v. Kadosh [71]; CrimC (Naz) 43/03 State of Israel v. Khalil [72]; CrimC (Naz) 37/03 Fatali v. State of Israel [73]; CrimC (Naz) 1215/02 State of Israel v. Masri [74]; CrimC (Naz) 1014/04 State of Israel v. Otmala [75].

It has therefore been held that a defendant may waive the application of the Kinsey rule in his case. This approach is logical since the Kinsey rule was intended to protect the defendant and therefore there is no reason why he should not be entitled to waive it. Consequently it has been held that a defendant should not be prevented from calling his accomplice as a witness on his behalf, as a witness for the defence, even when the witness’s trial is pending (see the opinion of Justice G. Bach in CrimA 330/84 State of Israel v. Sha’ashua [30], at pp. 89-90; see also CrimA 64/87 Gerstal v. State of Israel [31], at p. 536). It has also been held that where the defendant does not object at the relevant time to the testimony of an accomplice whose trial has not yet ended being heard — namely before the testimony is heard — he cannot do so after the event, and he should be regarded as someone who agreed to the testimony being heard (CrimA 579/88 Suissa v. State of Israel [32]).

21. In a whole host of decisions, the application of the Kinsey rule has been restricted, when the courts did not think it right to apply it in every case where the testimony of someone who was an accomplice in an offence was required. Thus it was held in the Kinsey rule itself that it does not apply in a case of an accomplice who is a state’s witness, since he cannot be regarded as a witness who expects a benefit that will be expressed in the sentence, and therefore there is no concern that he will try to minimize his role at the expense of the defendant (see CrimA 67/85 Abeid v. State of Israel [33], at pp. 395-396). In another case, the court restricted the application of the Kinsey rule when it held that it was insufficient that the witness was the accomplice of the defendant in an offence, and it was even insufficient that he was being interrogated by the police, but it was necessary, as a condition for applying the rule, that at the time of giving the testimony an indictment had already been filed against the witness, or at least that there was a proven intention of filing one (CrimA 44/81 Moyal v. State of Israel [34], at p. 522). A similar trend was also expressed in the trial courts: in one case (SFC (Jer) 4059/01 State of Israel v. Kaloti [76]) it was held that an ‘accomplice’ for the purpose of the Kinsey rule was only someone who was being tried for the same offence for which the defendant was indicted. In another case (CrimC (TA) 40067/02 State of Israel v. Abu-Ras [77]) it was held that the Kinsey rule did not apply to persons who aided an offence, and in a third case (CrimC (Hf) 384/00 State of Israel v. A [78]) it was held that the Kinsey rule did not apply to offences that involved a large number of participants.

It is of interest to point out that a similar process has also occurred in England, where the application of the rulings in R. v. Pipe [98] and R. v. Winsor [97] has been restricted. Cf. R. v. Richardson [99]; R. v. Turner [100]; R. v. Weeks [101]; R. v. Palmer [102]; R. v. Pentonville Prison Governor, ex p. Schneider [103], at p. 212; R. v. Reed [104].

Thus we see that the application of the Kinsey rule has involved and continues to involve considerable difficulties, since it seriously undermines not only the due process of the legal proceeding but also its quality and the values of liberty and justice. These difficulties cannot be ignored. They require us to reconsider the nature of that rule, its place and its purpose in our legal system.

The Kinsey rule — proper practice and not a substantive right

22. Anyone who studies the judgment in Kinsey v. State of Israel [1] will see that the court did not intend to prevent utterly the hearing of an accomplice’s testimony in a defendant’s trial or to create, ex nihilo, a rule of inadmissibility. All that the Kinsey rule sought to do — and this can be clearly seen from the language of the judgment in which it was introduced — was to indicate a practice that should be followed, without undermining the discretion given to the justices of the trial court to depart from this path in cases where they would see fit to do so. The court discussed this in the past when it held:

                ‘[The Kinsey rule] did not intend to affect the competence of the witness-accomplice and by means of case law to change the provision of statute that “Everyone is competent to testify in any trial, subject to what is stated in sections 3 and 4”… as stated in section 2 of the Evidence Ordinance [New Version], 5731-1971. [The Kinsey rule] is a “practical guideline” (State of Israel v. Sha’ashua [30], at p. 89) that prevents one defendant from testifying as a prosecution witness in the trial of another defendant who is his accomplice in the offence, as long as his own trial is pending’ (Suissa v. State of Israel [32], at p. 533; see also Kadosh v. State of Israel [29]).

A study of the judgments in R. v. Winsor [97] and R. v. Pipe [98] shows that the courts in England also sought to arrive at this normative position. Chief Justice Cockburn described the proper process concerning the testimony of an accomplice as follows:

                ‘In all such cases, if it be thought necessary, where two persons are in the same indictment, and it is thought desirable to separate them in their trials, in order that the evidence of the one may be taken against the other, I think, in order to ensure the greatest amount of truthfulness on the part of the person who is coming to give evidence under such remarkable circumstances, it would be far better that a verdict of not guilty should be taken first, or if the plea of not guilty is withdrawn and a plea of guilty taken, sentences should be passed, in order that the person coming forward to give evidence may do so with the mind free of all the corrupt influence which the fear of impending punishment and the desire to obtain immunity at the expense of the prisoner might otherwise be liable to produce in the mind of the witness’ (R. v. Winsor [97], at pp. 314-315).

Justice Blackburn also agreed with this conclusion:

                ‘It would be judicious as a general rule, where the accomplice is indicted, that his case should be disposed of before he is called as a witness’ (R. v. Winsor [97], at p. 320).

This was emphasized in later case law, where it was held that the rule outlined in R. v. Pipe [98] is a rule of practice, which was intended to direct the trial court and nothing more:

                ‘The rules referred to in Pipe … are rules of practice and not rules of law’ (R. v. Pentonville Prison Governor, ex p. Schneider [103], at p. 212).

See also in this context the judgment in the aforementioned case of R. v. Turner [100].

23. The Kinsey rule restricted itself to cases where the defendant and the witness are indicted separately. The problem is that the concern that this rule sought to eliminate — harming the defendant’s defence — also exists when the indictment contains the cases of both defendants together (see CrimA 124/93 Masada v. State of Israel [35], at p. 483; see also Sandberg, Rights of Defendants: the Right to a Separate Trial, supra, at pp. 121-138). But this latter scenario was addressed by the legislature in s. 155 of the Criminal Procedure Law [Consolidated Version], 5742-1982:

‘Sentencing of a defendant who pleads guilty                155. (a) If several defendants are charged in one indictment and some of them plead guilty to facts that are sufficient for them to be convicted and others do not plead guilty, the court shall not sentence the defendants who have pleaded guilty before the trial of the defendants who have not pleaded guilty has been held; but

                (1) If a defendant does plead guilty in this way, and the prosecutor or defence counsel give notice that he will be called to testify in the trial of the other defendants, he shall not testify until he has been sentenced;

                (2) In special circumstances that the court shall record, it may sentence the defendant who has pleaded guilty before the trial of the others has ended.’

Section 155 sought to prevent a defendant who has pleaded guilty from testifying against his accomplice before he is sentenced, and there is a considerable amount of logic in this. But the same danger, if not a more serious one, exists when all the defendants deny having committed the offences that are attributed to them, and therefore their inclination to exaggerate the role of their accomplices during their testimony, in order to minimize their own role, is likely to be greater. Notwithstanding this, the legislature did not stipulate any restriction with regard to the testimony of a defendant in such a scenario. Whatever the reason for this, the restriction provided in s. 155 with regard to the testimony of a defendant who has pleaded guilty was, as we have said, restricted to defendants who have been brought to trial in a joint indictment, and it is a fact that a similar provision was not also provided in the case of defendants who have been brought to trial in separated indictments. Some will say that this is the lacuna that the Kinsey rule seeks to fill, but I wonder whether this lacuna was not intentional, in view of the central approach of the legislature that everyone is competent to testify, except for those persons who have been excluded by virtue of a statutory provision.

In view of what we have said so far, the premise for our deliberations will be that an argument that the Kinsey rule gave defendants in a criminal trial a ‘right’ cannot succeed. This rule is merely a procedural guideline, which was intended to guarantee a certain aspect of the right to a fair trial, by preventing the defendant from being exposed to a risk that his conviction would be based on the false testimony of his accomplice. This leads me to the opinion that we should reject the argument that the cancellation of the practice determined in the Kinsey rule will lead to a violation of the right to a fair trial. But because of the great importance of this issue — the constitutional status of the right to a fair trial — and because the respondents focused their arguments on this, I see a need to discuss it at some length.

On the right to a fair trial

24. The state’s authority to bring a person to trial gives it great power. The significance of the right to a fair trial is, in essence, that where the state wishes to make use of this power, it should do so within the framework of a fair trial, in which the justification for violating the basic freedoms of the defendant will be examined. Holding fair trials is ‘an expression of the commitment of a civilized society to take deliberate action, in so far as possible, to prevent miscarriages of justice in the trials of individuals’ (A. Stein, ‘The Right to a Fair Trial,’ Human Rights and Civil Rights in Israel (T. Ben-Gal, D. Alexander, A. Bendor and S. Rabin eds., volume 3, 1992), at pp. 355-356). Therefore conducting fair trials is not merely a purpose in itself, but also a means that was designed to further the public interest to do justice and discover the truth.

Moreover, a fair trial is supposed to guarantee the protection of the ‘general’ human rights that the defendant has as a human being (see D. Bein, ‘The Police Interrogation Rules — Are there Grounds for Codification of the Entrapment Laws?’, 12 Tel-Aviv University Law Review (Iyyunei Mishpat) 129, at p. 32; Sandberg, Rights of Defendants: the Right to a Separate Trial, supra, at p. 32; S. Trechsel, ‘Why Must Trials Be Fair?’, 31 Isr. L. Rev. 94 (1997), at p. 96). Therefore, in order that a trial may be considered fair, it should comply with various criteria, which include the need for impartiality and the absence of bias on the part of the persons sitting in judgment; the need for the trial to be transparent and public; the holding of the trial within a reasonable period of time; protection of the presumption of innocence and the right not to incriminate oneself; protection of the defendant’s right to present evidence to prove his innocence, to object to prosecution evidence and to cross-examine its witnesses; the right of a suspect or defendant to know of the existence of investigation and trial proceedings against him (see Trechsel, supra, at p. 95, and R.B. Saphire, ‘Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection,’ 127 U. of Pa. L. Rev. (1978) 111).

The right to a fair trial does not merely realize a personal interest of suspects or defendants that are brought to trial. It is a public interest that every individual in society, as a potential defendant, knows that if and when criminal proceedings take place against him, they will be conducted duly and fairly. This was discussed by Prof. Goldstein:

                ‘The criminal trial serves complex psychological functions. In addition to satisfying the public demand for retribution and deterrence, it permits the ready identification of the same public, now in another mood, with the plight of the accused. Both demand and identification root deep in the view that all men are offenders, at least on a psychological level. And from the moment the offender is perceived as a surrogate self, this identification calls for a “fair trial” for him before he is punished, as we would have it for ourselves’ (A.S. Goldstein, ‘The State and the Accused: Balance of Advantage in Criminal Procedure’ (69 Yale L.J. (1960) 1149, at p. 1150).

What emerges from this is that the right to a fair trial is like a jigsaw puzzle. It is not reflected in a specific procedural arrangement or a specific right, but is based on an assortment of measures, procedural arrangements and substantive rights that combine together in order ‘to rectify the unequal balance of power between the accused and the prosecution, which usually enjoys a preferred procedural status and additional advantages, and to ensure that the accused is given a proper opportunity to state his innocence and to act in order to prove it’ (CrimA 4596/05 Rosenstein v. State of Israel [36], at p. 308). This was discussed by my colleague, Justice Beinisch, when she addressed the characteristics of the right to due process in the criminal trial:

                ‘… first, the purpose of the aforesaid right is to ensure a fair procedure and proper procedural safeguards for the fairness of the criminal trial vis-à-vis the accused. Procedural fairness is, therefore, what lies at the heart of the aforesaid right. Second, the right to a fair criminal proceeding applies to all stages of the criminal proceeding… Indeed, the police investigation stage is a preliminary proceeding to the trial itself, such that defects that occurred in it may have ramifications on the fairness of the criminal proceeding as a whole… Third, the protection of the right to a fair criminal trial is not confined to examining the potential effect of procedural defects specifically on the outcome of the trial; this context requires a broader perspective that is based on general considerations of fairness, justice and preventing a miscarriage of justice. Finally, we should point out that the right to a fair criminal trial is a multifaceted right, which may serve as a basis for deriving many procedural rights of the person under interrogation, the suspect and the accused in criminal proceedings’ (CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [37], at para. 66).

At this point we should emphasize that the right to a fair trial cannot and also need not be identical in different legal systems. These may have procedural mechanisms and arrangements that vary from one another, or give litigants different rights without this signifying that any of them is a legal system that does not have fair trials. The choice between the different measures that are capable of guaranteeing fair trials, and the balance between the various competing interests are influenced by the character of the legal system, the prevailing legal tradition, the existing legal arrangements, etc.. Thus, for example, the measures that are intended to guarantee a fair trial in a legal system where verdicts are given by juries cannot be identical to measures adopted in a legal system where verdicts are given by professional judges. The scope of the right to a fair trial may also vary in accordance with the values that the legal system seeks to promote and in view of the balance between them. Thus, for example, there may be differences between legal systems as a result of different outlooks concerning the proper balance between the public interest in eradicating crime and the interest in conducting fair trials (see in this regard: Sandberg, Rights of Defendants: the Right to a Separate Trial, supra, at pp. 30-31, and H.L. Packer, ‘Two Models of the Criminal Process,’ 113 U. Pa. L. Rev. (1964), which is cited by Sandberg). Moreover, the balancing point may also be influenced by considerations such as the activity of the legal system, in view of the interest that legal proceedings should be completed within a reasonable time, and the desire to deter potential offenders. This was also addressed by my colleague, Justice Beinisch, in Yissacharov v. Chief Military Prosecutor [37], where she described the right to a fair trial as —

                ‘... a multifaceted right that is open-ended, and its title and precise content vary from one legal system to another, even in the various international conventions… defining the boundaries of the right to a fair criminal trial is a difficult and complex task, and it must be done while taking into account all of the principles and characteristics of the relevant legal system’ (ibid. [37], at para. 66).

The right to a fair trial in Israel

25. The Israeli legislature has not included the right to a fair trial expressly in any legislation, and several attempts to enshrine it in statute have also not succeeded (see the draft Basic Law: Legal Rights, Draft Laws 5754, 2219, at p. 99). Despite this, the right has always enjoyed an exalted position, and when the Basic Laws were enacted, it was recognized, according to some authorities, as a constitutional right that derived from the right to dignity (see A. Barak, Legal Interpretation (vol. 3, Constitutional Interpretation, 1994), at pp. 431-432), and according to others, as a constitutional right derived from the right to liberty (see E. Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 155 (1996), at pp. 169-170). In one case this was discussed by Justice D. Dorner:

                ‘The Basic Law: Human Dignity and Liberty… gave the right of a person to a fair criminal trial the status of a constitutional basic right, especially by virtue of s. 5 of the Basic Law, which provides a right to liberty, and by virtue of ss. 2 and 4 of the Basic Law, which provide a right to human dignity. Under s. 11, the Basic Law binds all government authorities — the legislative branch, the executive branch and the judicial branch — to respect the rights provided in the law’ (RT 3032/99 Baranes v. State of Israel [38], at p. 375).

This was also discussed by B. Okon and O. Shaham, who said:

                ‘The Basic Law: Human Dignity and Liberty fundamentally changed rights in criminal law. The right of a person to liberty was enshrined. This has a special consequence for criminal law. This right struggles for supremacy in this field perhaps more than in any other field of the law. Within this context, a person’s right to a fair trial has been recognized. The significance of this is a change in the ethical pyramid. Criminal procedure has become more important. From being merely a matter of procedure it has become a main tool in the service of the constitutional basic right’ (B. Okon and O. Shaham, ‘Due Process and a Judicial Stay of Proceedings,’ 5 HaMishpat 11 (1995)).

(For more on the status of the right to a fair trial in our legal system, see Yissacharov v. Chief Military Prosecutor [37]; HCJ 9264/04 State of Israel v. Jerusalem Magistrates Court [9], at para. 8; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [39], at p. 761; Y. Shahar, ‘Criminal Procedure,’ Israel Law Yearbook, 1992, (A. Rosen-Zvi ed.) 375; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit 271 (1994), at p. 281; D. Wiener, ‘Further to the Amos Baranes Case,’ 4 Kiryat HaMishpat 169 (2004), at p. 186).

26. Several legislative arrangements give the right to a fair trial in our legal system practical content. Section 2 of the Basic Law: Administration of Justice provides that ‘In matters of the administration of justice, anyone who has judicial power is subject only to the authority of the law.’ Section 77A(a) of the Courts Law [Consolidated Version], 5744-1984, is also intended to prevent a danger of a predisposition or a concern of bias; in the words of the section: ‘A judge should not hear a case if he finds, on his own initiative or upon an application of a litigant, that there are circumstances that are capable of creating a real concern of bias in conducting the trial.’

The Criminal Procedure Law also addresses the issue of the fairness of the criminal trial in many of its sections. Thus, for example, s. 74 of the law provides that a defendant and his defence counsel may inspect the investigation material that was assembled by the prosecuting authority. The rationale underlying this provision is that a fair trial requires, inter alia, that a defendant is able to prepare his defence with reference to the evidence that has been accumulated against him (cf. CrimApp 4157/00 Nimrodi v. State of Israel [40], at pp. 632-633; CrimApp 1355/98 Ben-Ari v. State of Israel [41]; CrimA 400/84 State of Israel v. Anjel [42], at p. 487; CrimApp 2043/05 State of Israel v. Ze’evi [43], at para. 12).

Section 186 of the Criminal Procedure Law provides that where there is no provision to the contrary, ‘a person should only be tried in criminal cases in his presence,’ and s. 134 of this law requires the court to keep a record that will reflect everything that occurs in the courtroom during the hearings. These two sections are intended to guarantee the transparency of the criminal trial; transparency is also an aspect of procedural fairness. Section 145 of the law provides that ‘During the trial, the court shall explain to the defendant, if it sees a need to do so, the rights that he has for his defence,’ whereas s. 196 provides that ‘When the reading of the sentence has ended, the court shall explain to the defendant his right to appeal against the judgment and shall notify him of the period for filing the appeal.’ The purpose of these sections is to ensure that anyone standing trial is aware of his rights, so that the criminal trial is not conducted in circumstances where the prosecution, which has an advantage because of the information in its possession, has the upper hand. Another right that is merely another aspect of the right to a fair trial is the right given to the defendant in s. 61 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, which provides that his trial should end within the time frame provided in the law. An additional facet is the right of the defendant to refrain from testifying or giving evidence that may incriminate him. This right is enshrined in s. 2(2) of the Criminal Procedure (Testimony) Ordinance, 1927, and s. 47 of the Evidence Ordinance.

Notwithstanding, the right to a fair trial, like every basic right, is not an absolute right. It takes its place alongside conflicting rights and interests. These include the interest that the criminal trial should be efficient, the ability to bring someone who has committed offences to justice, the desire to discover the truth, the intelligent use of the resources of the legal system, the sensible conducting of the trial and the desire to do justice to persons who unwillingly became victims of criminal acts. In the criminal trial, a proper balance should be found between all the rights and interests that are involved (see also the remarks of my colleague, Justice Beinisch, in Yissacharov v. Chief Military Prosecutor [37], at para. 68; and CrimA 6613/99 Smirk v. State of Israel [44], at p. 554).

27. In my opinion, the Kinsey rule was intended for this very purpose. In the circumstances in which it was introduced, which, as I have already said, were completely different from the situation that prevails today with regard to the ability to realize the interest of efficiency, the rule was suited to achieving the goal for which it was created. The balancing point that was determined in the Kinsey rule originally allows the right to a fair trial and the interest of efficiency of the trial to be satisfied simultaneously. But since then, a significant change has occurred in circumstances, and the Kinsey rule is no longer able to satisfy the balancing point that was determined. Continuing today to apply the practice that was determined in that rule means a displacement of the balancing point in the direction of the fairness of the trial, and a weakening of the element of its efficiency, which cannot be accepted. A change in circumstances naturally makes it necessary to adapt the trial, including the criminal law with its procedural rules, to the prevailing reality (cf. HCJ 58/68 Shalit v. Minister of Interior [45], at p. 513; Rosenstein v. State of Israel [36], at para. 30). In such a situation, the remarks that I uttered earlier with regard to the Kinsey rule being merely a means, and not an end in itself, become clearer. Since this rule can no longer sustain the burden of balancing, it is clear that we must find another method that is capable of retaining the balancing point, notwithstanding the changing circumstances, in such a way that it will prejudice the fairness of the trial or give it less weight in relation to the status of the interest of the efficiency of the trial.

This leads us almost automatically to ask the question: what is this other practice that will combine with the other measures of which I spoke above and how can it ensure the realization of a proper balance between the conflicting values?

Protecting the right of a defendant to a fair trial

28. Of the variety of measures that our legal system provides to safeguard the right of a defendant to a fair trial, I think there are two that should be discussed in detail. The first is the requirement of the supporting evidence that is required by s. 54A(a) of the Evidence Ordinance:

‘Verdict based on sole evidence in a criminal trial        54A. (a) The court shall not convict a defendant solely on the basis of the evidence of his accomplice in the offence unless it finds in the evidence something to support it.’

The purpose of this provision, like the idea underlying the Kinsey rule, is to contend with the concern that relying solely on the evidence of a person, who because he was the accomplice of the defendant in committing an offence may give false testimony, may lead the court to an erroneous result. The court therefore needs evidence of the truthfulness of the witness’s statements, which is provided by additional evidence that constitutes ‘support.’ Naturally, when the restriction in the Kinsey rule is cancelled, attention will once again focus on this requirement of support.

In this regard, it should be emphasized that before the Kinsey rule was introduced, the requirement of additional evidence for the sole testimony of an accomplice in an offence was more stringent. Additional evidence that amounted to corroboration was required. This means evidence that implicates the defendant in the commission of the offence, as opposed to evidence that can merely authenticate the testimony against him. It was only in 1982, when the Kinsey rule was already in force, that the Evidence Ordinance was amended and stipulated the more lenient requirement of support (see the Evidence Ordinance Amendment Law (no. 6), 5742-1982). However, contrary to what was originally proposed (see the explanatory notes to the draft amendment (no. 6), Draft Laws 5740, no. 1477, at p. 396), it was provided in the amendment wording of the ordinance that the requirement of corroboration would continue to be required where a state’s witness was concerned, since in such a case the personal interest that may affect the testimony of the witness who has been promised a benefit is very considerable. Notwithstanding, in view of the very real danger that relying on the testimony of an accomplice in crime may lead to a false conviction, case law recognized the existence of a ‘scale’ of supporting evidence on the basis of strength. The court trying a case is authorized to determine, at its discretion, what is the degree of the support that is required in the circumstances of the case before it in order for the prosecution to satisfy the requirement of support. When it has determined this, evidence that authenticated the testimony of the witness will be insufficient if it does not satisfy the required degree of support. The rule is therefore that ‘the greater the credibility that the court attributes to the testimony requiring support, the lower the degree of the supporting evidence may be’ (per my colleague Justice A. Grunis in CrimA 1538/02 A v. State of Israel [46], at p. 598; see also CrimA 209/87 Shahada v. State of Israel [47], at p. 596; CrimA 348/88 Abu-Assad v. State of Israel [48], at p. 98; CrimA 2642/99 Masaraweh v. State of Israel [49], at para. 9 of the opinion of my colleague Justice Beinisch). Thus, where the court — on the basis of its impression of the witness-accomplice, his statements and the other circumstances — has grounds for concern that the witness before it has an especially strong interest to incriminate his accomplice and give a distorted account of events, it may determine that a high level of support is required. I think that at this point it is possible that the difference between the requirement of support and the requirement of corroboration will not be so great.

29. A second measure for the protection of defendants is derived from the provisions of s. 47 of the Evidence Ordinance, which I addressed earlier. The section, which is entitled ‘Incriminating evidence,’ says the following:

‘Incriminating evidence      47. (a) A person is not liable to give evidence if it contains an admission of a fact that is an element of an offence of which he is charged or of which he may be charged.

                (b) If a person requests to refrain from giving evidence because it may incriminate him as stated in subsection (a) and the court refuses the request and the evidence is given, the evidence shall not be submitted against that person in a trial in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto.

                (c) …’

This provision was intended to give a person a defence against the use of statements that he uttered, or made in any other manner, to incriminate him in a legal proceeding against him. The principle of immunity against self-incrimination has a direct ramification on the matter before us, first and foremost in the sense of the right of a person brought to trial to have a fair trial. As I have said, the Kinsey rule sought to protect a defendant against damage that he might suffer as a result of the testimony of his accomplice whose trial has not yet ended — testimony that may turn out to be untruthful because of the witness’s interest in the outcome of the trial. Therefore, where the procedural restriction introduced by the Kinsey rule has been removed, there is no longer any reason why testimony of this kind should not be heard. But then the witness may, by virtue of his right under the aforesaid s. 47(a), refuse to undergo cross-examination from the defendant, on the ground that what he might say in his cross-examination might incriminate him. The defendant and the court may then find themselves helpless in the attempt to discover the weight of the testimony that was given. This utterly contradicts the principle of seeking justice and discovering the truth in the judicial proceeding, a principle that attributes great importance to the legal tool of cross-examination. This was discussed by Vice-President M. Elon in CrimFH 4390/91 State of Israel v. Haj Yihya [50], at p. 694, where he says:

                ‘This conclusion derives not only from the express language of the statute, but also from our accepted basic principles concerning the manner of conducting a fair criminal trial. The right of the accused to cross-examine the witness is one of his basic rights, both in order to discover the truth and also because every person has a right to argue that his fate should not be determined until he has been given an opportunity to know about the proceedings that are taking place with regard to him and against him and to be a party to them.’

See also FH 3081/91 Kozali v. State of Israel [51], at p. 478; CrimA 5329/98 Dejani v. State of Israel [52], at p. 281; CrimA 7450/02 Eid v. State of Israel [53], at para. 11).

In these circumstances, it is necessary to examine the proper interpretation that should be given to the provisions of the aforesaid s. 47, and especially to the relationship between the first two subsections thereof. An interpretation that would solve the problem that we have posed would be one that stipulates that in every case the witness-accomplice will be required to answer the questions directed at him in cross-examination, but when his replies contain anything that may incriminate him, it will not be possible to use them against him in a future trial. Are the language and the purpose of the section consistent with an interpretation of this kind? My answer to this is yes. According to this approach, the provisions of s. 47(a) should be read together with what is stated in s. 47(b), and the two provisions together are the basis for the court’s power to exercise its discretion as to whether or not to grant the application of a witness not to reply to questions addressed to him on the grounds of self-incrimination. When the court refuses to grant it, the witness will be liable to reply, but he will be immune from being hurt by what he says. This approach has some support in the case law of this court. Thus, in Kinsey v. State of Israel [1] itself Justice Shamgar said that ‘Cross-examination, which is an important means of examining the credibility of a witness, may be restricted, unless the court exercises its authority under s. 47(b) of the Ordinance’ (ibid. [1], at p. 489). In Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], Justice Strasberg-Cohen added that ‘the court may reject the application of a person to refrain from giving evidence that may incriminate him, but if it does so, the incriminating evidence will not be brought against that person’ (ibid. [10], at p. 764). This has also found expression in the case law of the trial courts; see, for example, SFC (TA) 1164/02 State of Israel v. Ben-Yishai [79], at para. 23; MApp (Naz) 2303/03 State of Israel v. Masri [80], at para. 6; MApp (BS) 20659/05 State of Israel v. Abu-Sevila [81], at para. 8; see also Sandberg, Rights of Defendants: the Right to a Separate Trial, at p. 178.

We therefore see that a departure from the Kinsey rule does not undermine the substantive right of a defendant to a fair trial, if it is accompanied by other measures that are capable of guaranteeing this right effectively. Cross-examination is one of the most important of these other measures, and it is numbered among the other measures that I discussed earlier. But we are left with the question whether the proposed interpretive approach sufficiently considers the rights of the witness. I will now turn to examine this question.

The right of a witness-accomplice to a fair trial

30. In Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], the court held that:

                ‘An examination of the reasons underlying the Kinsey rule show that the rights of the witness whose separate trial for the same incident is pending, and especially the right to remain silent and the right not to incriminate himself, are not the reason for the rule. When formulating the rule in that case, the court was considering the interest of the defendant who objects to his accomplice testifying against him’ (ibid. [10], at p. 759).

These perceptive remarks written by Justice Strasberg-Cohen emphasize that the question before us has an additional facet, which even if it was not addressed at length in Kinsey v. State of Israel [1] is directly affected by any reconsideration of that rule. This is because where the prosecution wishes also to indict the accomplice of a defendant who has testified for the prosecution, the witness may find himself in a situation where remarks that he made in his testimony will be used against him. His right to refrain from incriminating himself, which as I have said is one of the elements of the right to a fair trial, will thereby be violated.

In an attempt to solve this problem, the legislature provided in s. 47(b) of the Evidence Ordinance, as we have said, a prohibition against using a witness’s testimony to incriminate him. I will cite the wording of this provision once again:

‘(b) If a person requests to refrain from giving evidence because it may incriminate him as stated in subsection (a) and the court refuses the request and the evidence is given, the evidence shall not be submitted against that person in a trial in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto.’

In this provision the legislature adopted a model of immunity against self-incrimination that is also known as ‘use immunity.’ This immunity gives a witness substantive protection with regard to statements that he made in his testimony, but it does not actually rule out the possibility that he will be indicted in that matter. Thus Israeli law rejected an alternative model of ‘transactional immunity,’ in which the nature of the protection given to the witness is that he may not be indicted at all with regard to the matter on which he was required to testify. Adopting the model of ‘transactional immunity’ would compel the prosecution authorities to decide which of the two — the defendant or the witness — should be brought to justice, and which should not be brought to justice because it would be procedurally impossible or because there is insufficient evidence.

Prima facie, the model of ‘use immunity’ offers a satisfactory solution that allows two central interests that are important to the case at hand to coexist: there is nothing to prevent all the persons involved in the criminal incident being brought to justice and there is a fitting solution to the right of a person not to incriminate himself. But implementing this model in practice gives rise to two questions: the first concerns the proper scope of ‘use immunity.’ Should it apply to any use of the protected evidence, even an indirect one, such as where it is used as a springboard for discovering new evidence or as support for the existing evidence? Or should it be limited only to direct use, meaning that the production of the protected evidence before the court alone is prohibited? The second question is: who has the burden of showing that the use of the evidence is consistent with the law, or alternatively that it violates the principle of immunity from self-incrimination? On both of these questions we can learn several lessons from the experience of foreign legal systems that have encountered similar questions.

31. American law and Canadian law have both encountered the difficulty that arises in the circumstances that gave rise to the Kinsey rule. But, unlike in Kinsey v. State of Israel [1], in those countries the court did not focus on the right to a fair trial of the defendant who is brought to trial first, but on the right of the witness who will be brought to trial in the future after delivering his testimony in the trial of the defendant, his accomplice.

In American law, the normative basis for the witness’s right can be found in the Fifth Amendment to the Constitution, which establishes the principle of due process. In the past, the accepted approach in the United States recognized the model of ‘transactional immunity’ (see Counselman v. Hitchcock [85], at p. 563). But later it transpired that this led to an abuse of the principle of immunity, since witnesses who were in danger of facing criminal proceedings hastened to testify against their accomplices in the same matter and thereby acquired for themselves an absolute immunity against being brought to trial. This was addressed by Justice D. Levin in CrimA 2910/94 Yefet v. State of Israel [54], at p. 292 (with regard to investigations of congressional committees):

                ‘The opponents of the immunity argued, justly, that such a comprehensive immunity would in practice induce offenders to appear before Congress and thereby protect themselves from being indicted. This immunity even acquired the popular name of “immunity baths.” Because it was abused, this position was unsatisfactory.’

Therefore, in the 1970s the Federal statute, the Witness Immunity Act, 18 U.S.C. §6002 (1970), was amended, so that American law adopted a model of ‘use immunity’ which naturally restricted the protection given to a witness. The Supreme Court of the United States held that this model was consistent with the provisions of the Constitution, provided that it included all uses, both direct and indirect, that could be made of the protected testimony (see Kastigar v. United States [86]). This means in practice that nothing stated in a person’s testimony may be used either as evidence against him or in order to obtain evidence that is external to the testimony, and separate and independent evidence will be required for a conviction. In the words of the American court:

                ‘… [the “use immunity” rule] prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness’ (ibid. [86], at p. 453).

In several cases the courts in the United States have addressed the question of what constitutes an indirect and prohibited use as evidence of something arising from the testimony. Inter alia it has been held that no use may be made of ‘immune’ testimony in order to refresh the memory of a witness by referring him to what he said in that testimony; in order to clarify other evidence that is not sufficiently clear; in order to reach a decision as to which witnesses to summon and in which order; and to aid in preparing skeleton arguments and concluding arguments (United States v. North [87], at p. 857). It was also held that a conviction may not be based on testimony that was influenced by statements made in the ‘immune’ testimony (United States v. Hylton [88], at p. 134). Moreover, the model of immunity that was adopted does not allow the testimony to be used to focus a police investigation; to decide whether to file an indictment; to decide whether to enter into a plea bargain; and to plan the cross-examination of witnesses (United States v. McDaniel [89], at p. 311; see also G.S. Humble, ‘Nonevidentiary Use of Compelled Testimony: Beyond the Fifth Amendment,’ 66 Tex. L. Rev. 351 (1987); K. Strachan, ‘Self-Incrimination, Immunity, and Watergate,’ 56 Tex. L. Rev. 791 (1978)). This list is not exhaustive. The rule is that where the evidence assembled by the prosecution, without relying on the privileged testimony, is insufficient for obtaining a conviction, the conviction should not be allowed to stand, since it violates the immunity against self-incrimination. American case law has further held that no weight should be attached to the question of the subjective intentions of prosecution authorities or their knowledge that they were making use of privileged information (United States v. Hsia [90], at p. 201).

On the question of the burden of proof, American law has held that the burden rests almost entirely with the prosecution. All that the witness needs to show is that he gave testimony that relates to the incident with regard to which he has been indicted, and when he has done this, the prosecution authorities need to prove that no use has been made of statements that he made (Kastigar v. United States [86], at p. 441; United States v. Danielson [91]). For this purpose, a kind of ‘trial within a trial’ is held in each proceeding in order to ascertain whether the principle of immunity has been observed, and this may be done at any stage of the trial (United States v. North [87], at p. 854).

                                32. Canadian law has also adopted this model of immunity. In s. 5 of the Canada Evidence Act, 1985, and in s. 13 of the Canadian Charter of Rights and Freedoms, there is a similar rule to the one found in s. 47(b) of the Israeli ordinance. In the leading judgment of the Supreme Court of Canada in 1995, it was held, by a majority, that a witness may be compelled to reply to any question that he is asked, but no direct or indirect use may be made of his replies in order to incriminate him (R. v. S. (R.J.) [94]; see also R. v. Primeau [95]).

                In my opinion, we should adopt this approach in our legal system. A narrow literal interpretation of s. 47(b) — ‘the evidence shall not be submitted against that person’ — might admittedly lead to the conclusion that only a direct use of the testimony is prohibited by law. But my opinion is that this expression should be interpreted in accordance with the purpose of the section, which is, as I have said, to give effective protection against self-incrimination. It follows that there is no reason, a priori, to prevent a person testifying against his accomplice even before the witness’s trial has ended, provided that his testimony will not be used, even indirectly, to assist the prosecution authorities in proving the charges against him, and they shall not be allowed to make use of the witness’s testimony to ‘fish’ for additional evidence against him.

Notwithstanding, as Dr Sandberg says in her book (Rights of Defendants: the Right to a Separate Trial, at p. 176), in the United States the prosecution authorities have on several occasions been confronted with a major problem in proving that no use had been made of privileged testimony, even indirectly, for the purpose of assembling evidence against someone who gave such testimony. This, I would imagine, is because, inter alia, it is inherently difficult to prove something that is essentially a negative, and because it is difficult to trace such a complex and prolonged process as the assembling of prosecution evidence (see also in this regard the remarks of Justice L’Heureux-Dubé of the Supreme Court of Canada in her minority opinion in R. v. S. (R.J.) [94], at p. 594. The result has been that sometimes the prosecuting authorities in America are compelled to forego bringing the witness to trial or, alternatively, to forego calling him to testify in his accomplice’s trial before his own trial has ended. This result, in Dr Sandberg’s view, is similar to the outcome of the Kinsey rule, and in her opinion the problem discussed at the beginning of my opinion arises once again.

In my opinion, the problem described above should not lead us to reject the proposed model, especially since it is possible to limit the scope of this difficulty. This is because, first, as I have repeatedly said, we rely on the discretion of professional judges that try criminal cases, and they can be presumed to know how to distinguish between a remote or negligible use of the testimony and one that is capable of affecting the outcome of the trial. Second, even with regard to the issue of the burden of proof, I think that the witness who argues that there has been a prohibited use should be required to bear a slightly heavier burden, in the sense that he will be required to show not only that he gave testimony about the incident before his trial ended, but that there is a prima facie concern — which is more than merely hypothetical — that use was made of this testimony in a manner that may affect the outcome of the trial. When the witness is able to do this, the burden will pass to the prosecuting authorities, who naturally have better access to the evidence and can therefore prevent a violation of the rule of immunity. They will be required to satisfy the court trying the case that there is no basis for the prima facie concern that was raised, namely that the other evidence that they have, which is external to and separate from the testimony, was insufficient for reaching a conviction.

When weighing all the interests that are involved, and when one considers that in such complex circumstances any path that one follows will be the result of balancing and compromise, I think that the proposed solution is a proper one. Unlike the position that arises from applying the Kinsey rule, this solution gives the prosecution authorities a greater degree of influence, which is appropriate to their position, when determining the policy of indicting persons who are suspected of carrying out criminal acts jointly. This also respects the rights of the accomplices who are indicted, whether in their capacity as defendants or when testifying against one another.

Summary

33. At the beginning of my remarks I discussed the rationale that underlies the Kinsey rule. I went on to discuss the difficulties inherent in that rule — difficulties that not only grew with the passage of time, but now undoubtedly inflict an injustice on defendants who are under arrest, and result in an intolerable disruption to the administration of justice. I determined that the Kinsey rule was intended to propose a desirable practice and therefore it did not give a defendant a substantive right. I went on to determine that the cancellation of the Kinsey rule does not deprive the defendant of the right to a fair trial. In doing so, I pointed to changes that had occurred in the law (s. 10A of the Evidence Ordinance), which together with additional provisions of statute (ss. 47 and 54A of the Evidence Ordinance and s. 155 of the Criminal Procedure Law) have recognized the possibility of calling a witness to testify against his accomplice in the criminal act, by using a control tool of ‘support’ or ‘corroboration,’ which were intended to assist the court when deciding questions of the credibility of witnesses. Finally, I discussed the witness-accomplice’s privilege against self-incrimination, and my conclusion was that the broad interpretation of s. 47(b) of the Evidence Ordinance should be adopted.

34. What arises from all of the aforesaid is that there is no longer any justification for the existence of the Kinsey rule, first because the circumstances that prevailed when it was introduced have changed unrecognizably, and second because the court today has tools that, in addition to the impression that it obtains directly from the witnesses who appear before it, can enable it to arrive at the truth.

I therefore propose that we determine that the existing law that originated in the judgment of this court in Kinsey v. State of Israel [1], according to which an accomplice to an offence who is standing trial in a separate indictment may not be called to testify until his trial has ended, is no longer valid and therefore it should no longer be followed. Notwithstanding, I would emphasize that the court should exercise great caution when considering the credibility of the testimony of such a witness, and where necessary it should also insist that there is additional evidence of significant weight.

Postscript

35. I have read and reread the differing opinions of my colleagues, but I see no reason to change my position. The Kinsey rule does indeed reflect a need to contend with a complex situation, and striking a delicate balance between competing rights and interests. Unfortunately it would appear that it is impossible to find a perfect solution that is capable of solving all the problems that arise. Notwithstanding, I do not think that leaving the trial court with discretion is a proper way of contending with these problems.

First, I find it difficult to see a significant difference between the majority opinion and what is stated in the opinion of my colleague Justice A. Procaccia. My colleague proposes that ‘there are clearly grounds for restricting the continued application of the rule’ (para. 3 of her opinion), and it should be applied only as ‘the exception to the rule’ and ‘sparingly in special cases’ (para. 18). This approach, which advocates that ‘the rule will therefore become the exception, and the exception will become the rule’ (ibid.) is not materially different from the majority opinion that holds that the Kinsey rule should be used ‘very narrowly, in exceptional cases only and for special reasons’ (para. 4 of the opinion of President D. Beinisch), and in ‘very exceptional and extreme’ cases (para. 3). Even though it would appear that each of the opinions relates to a different degree of refraining from applying the Kinsey rule — the majority is of the opinion that it should be applied less often than my colleague Justice Procaccia proposes — I doubt whether in the practical world a distinction of this kind has any significance.

As I have shown, even today the Kinsey rule is only used as a rule of practice, but although there was always a possibility of departing from it, the trial courts rarely made use of that possibility. Whatever the reasons for this, I fear that adopting the majority position will not lead to a real change in the manner in which the rule is currently applied.

Let us place ourselves in the position of a trial judge who is asked to hear the testimony of a witness whose trial has not yet ended. We have already emphasized that it is suspected from the outset that this witness will give self-serving testimony, and therefore the judge is likely to say to himself, with a considerable degree of logic: why should I address the question of the credibility of the witness and his testimony, when it is better that I wait until judgment has been given in the witness’s trial, also for the reason that I will not end up making findings of fact that conflict with those that will be determined by the other court? This gives rise to the concern that the rule being made today by the Supreme Court will be undermined and the Kinsey rule will once again become the widespread practice. It will be hard to prevent this happening in view of the clear difficulty in carrying out judicial review of the decisions of trial courts in cases such as this, since they are interim decisions concerned with procedure in criminal proceedings (see in this regard what is stated in para. 5 of my opinion).

36. Second, I doubt whether the trial court will be able to assess correctly the content of the testimony and the degree of injustice that it is likely to cause, before it is heard. This is precisely the inescapable outcome of the rule that my colleagues wish to introduce, as can be clearly seen from the opinion of my colleague Justice M. Naor (in para. 5). At this stage of the proceedings, the court trying the case is likely to find itself, to a large extent, stumbling in the dark with regard to the as yet unheard testimony. Is it conceivable that the ‘indications of the truth’ (s. 53 of the Evidence Ordinance) that the court is required to seek will reveal themselves sufficiently before it has heard even one word from the witness? In such a situation, every little concern, even if only speculative, is likely to lead the court to prefer taking the safe path and applying the Kinsey rule, rather than choosing the dangerous path of hearing the testimony during which it may discover that it is dealing with self-serving testimony. We should remember that even the witness’s statement that was made to the investigation authorities before the trial began is not before the judge at this preliminary stage, since, according to s. 10A of the Evidence Ordinance — and these are first principles in the rules of evidence — the statement may be brought before the court only when difficulties are found in the testimony that has been heard.

37. My remarks above may prima facie imply an excessive restriction upon the discretion which is in principle the prerogative of the judges of the trial court in matters of procedure. My colleague Justice Naor touches upon this in the second paragraph of her opinion. But this is not the case. De facto, the prevailing practice, both before and since the Kinsey rule was created, is that the trial court in any case does not have discretion in determining the order of hearing the witnesses. This remains the prerogative of the prosecution authorities, and any departure from this requires the consent of the parties. What I said above is consistent with this approach, which leaves the prosecution authorities with the responsibility and the discretion for the whole task of bringing suspects to trial.

38. Finally, my colleague the president (in the fourth paragraph of her opinion) holds that it is not necessary to decide, in the case before us, the question of the other possible solutions for protecting the accomplice who testifies before his trial has ended, including the question of the scope of the immunity offered to him. My colleague, Justice Naor, agrees with this position and adds to it an unwillingness even to determine the extent of the additional evidence that is required, whose purpose is to protect the interests of the defendant. My opinion is that we cannot leave these questions until they arise. The issue before us is complex, both because of its nature and also because it is not likely to come before the court again. In my opinion it is therefore proper that we should propose a comprehensive solution now, and this is what I sought to do in my opinion when I presented a model that strikes a balance between the need to continue to protect the rights of the defendant and the need to ensure that, when a witness is compelled to testify, this does not lead to a violation of his right not to incriminate himself. A failure to decide the question of the protection for the witness is tantamount to removing one of the foundations on which my proposal to cancel the Kinsey rule is based, and I cannot agree to this.

 

 

Justice A. Procaccia

Conflicting considerations

1.             The renewed deliberation upon the question of the application of the Kinsey rule requires a complex balance between conflicting values: the value of holding a just trial that seeks to convict the guilty and acquit the innocent against the value of the efficiency and fairness of the criminal trial, which endeavours to protect the basic rights of the defendant and to ensure the deterrent effect of the norms of criminal law; this includes the value of protecting the right of a defendant who is under arrest so that his personal liberty is not violated disproportionately while he enjoys the presumption of innocence by a prolongation of the period of arrest as a result of a delay in the trial. This deliberation sets the right of the defendant to a fair trial, in which he will not be wrongly convicted on the basis of the false testimony of a biased witness-accomplice who is trying to obtain an indirect benefit in his own trial that has not ended, against the right of that same defendant to an effective criminal trial that will end within a reasonable time since he is being held under arrest until verdict is given. It raises an ethical question concerning the right of a witness-accomplice, who is called to testify in the separate trial of another defendant before his own trial has ended, not to incriminate himself when giving his testimony. It raises questions of the effect that this right has on the other defendant’s trial and the witness’s own trial. It highlights the conflict between the fear of a miscarriage of justice and the fear of a delay of justice in criminal trials. This ethical conflict exists when the Kinsey rule is applied and it exists to the same degree when it is cancelled. The solution to this dilemma lies in weighing the conflicting values and striking a balance that will harmonize them by making the most of their relative advantages while minimizing, in so far as possible, their shortcomings.

The solution to the complex conflict of values that arises with regard to the Kinsey rule was not simple or straightforward even then the case law rule was formulated at the beginning of the 1970s; the difficulty has become greater as a result of changes that have occurred in recent years in the nature of criminal trials and the tools that are available to the judiciary for contending with them. The continually increasing burden on the courts, together with the ever greater scope and sophistication of crime resulting from the significant increase in organized crime and the larger number of defendants who are involved in serious and complex criminal offences all place special demands upon the resources of the legal system that have a direct effect on the prolongation of trials. This has a direct effect on trials where defendants are held under arrest until the end of proceedings, and it extends the periods of time during which they are held under arrest, sometimes to a very considerable degree; this reality violates the rights of defendants to their personal liberty while they enjoy the presumption of innocence; it undermines the efficacy of the criminal trial and weakens its deterrent effect. This changing reality has given rise to the need to reassess what role the Kinsey rule should continue to have in criminal trials in Israel.

2.             My colleague Justice Levy concludes his comprehensive opinion with the following:

‘I therefore propose that we determine that the existing law that originated in the judgment of this court in Kinsey v. State of Israel [1], according to which an accomplice to an offence who is standing trial in a separate indictment may not be called to testify until his trial has ended, is no longer valid and therefore it should no longer be followed. Notwithstanding, I would emphasize that the court should exercise great caution when considering the credibility of the testimony of such a witness, and where necessary it should also insist that there is additional evidence of significant weight.’

My colleague discusses the nature and purpose of the Kinsey rule and the complex considerations that conflict with its application. His conclusion is that thirty years after it was first introduced, the nature of criminal trials and the conditions and circumstances for applying it have changed to such an extent that they justify cancelling the rule in its entirety so that nothing remains of it. His position is based on the premise that, in the overall balance, allowing a witness-accomplice to testify in the trial of a defendant before his own trial has ended does not present any real threat to justice, the fairness of the trial and the protection of defendants’ rights. At the same time, cancelling the rule will put an end to lengthy delays in the trial of a defendant who is usually held under arrest until the end of proceedings; he will no longer be compelled to wait until a witness’s trial has ended so that the witness can testify in the defendant’s trial. The court has the tools of common sense and professional expertise for assessing the credibility and weight of the testimony of a witness-accomplice who testifies in the trial of a defendant before his own trial has ended. This is supplemented by the supporting evidence that is required to substantiate this testimony. That the evidence is assessed by a professional trial court and that it needs to be substantiated by supporting evidence are sufficient to safeguard against self-serving and unreliable testimony of a witness-accomplice who is seeking to obtain an indirect benefit from testimony that he gives before his own trial has ended. As for the possibility that the testimony of the witness-accomplice, when it is given in the separate trial of the defendant before the witness’s own trial has ended, may violate the witness’s right not to incriminate himself, my colleague is of the opinion that the solution to this lies in exercising the power of the court to order the witness to answer questions even when they may incriminate him, within the framework of s. 47(b) of the Evidence Ordinance [New Version], 5731-1971; according to this provision, this incriminating evidence may not be used against the witness in a separate trial of his own, and therefore it should not be regarded as a reason why the Kinsey rule should not be cancelled. When weighing the benefit derived by the defendant from the Kinsey rule against the considerable damage that is caused by its implementation to the effectiveness and fairness of the criminal trial, and especially the inevitable violation of the personal liberty of a defendant who is being held under arrest, the latter consideration clearly outweighs the former and therefore justifies the cancellation of the rule in its entirety.

3.             The Kinsey rule was formulated in another era, when the ethical conflict that led to its adoption was of a different character and more pressing. Criminal trials were fewer, less sophisticated and less complex. They required less judicial resources and were consequently of shorter duration. I agree with my colleague’s opinion that the passage of time, the significant changes that have occurred in the scale of criminal proceedings and in the nature and complexity of the matters brought before the court and the effect of these on the length of criminal trials require a reassessment of all the factors that are relevant to the Kinsey rule, in order to examine whether the rationale that underlies it is still valid, or whether it should be applied differently. But a reassessment of all the conflicting factors and interests that bear upon the matter, against the background of the changes that have taken place in criminal proceedings in Israel in recent decades, leads me to the conclusion that, although there are clearly grounds for restricting the continued application of the rule, there is no justification for cancelling it in its entirety. Confronting the conflicting considerations and values against the background of current needs does, admittedly, justify the determination of a different balancing point today from the one that was determined when the rule was formulated three decades ago, but there is still a margin in which it should be left to judicial discretion to apply it, in order to achieve the main purpose of the trial — arriving at the truth — while protecting the right of the defendant to a fair trial and the character and effectiveness of criminal proceedings, as well as safeguarding the general public interest that seeks to give the court effective tools to realize these purposes.

Let me explain my reasons.

The rationale underlying the Kinsey rule

4.             Two separate indictments are filed against two accomplices in crime, after the prosecution decides to hold their trials separately. The prosecution wishes to summon one defendant (hereafter — ‘the witness-accomplice’) as a witness in the trial of the other defendant (hereafter — ‘the defendant’). The Kinsey rule provides that the testimony of the witness-accomplice in the defendant’s trial should be take place after the witness’s own trial has ended. The main reason for the rule derives essentially from the goal of maximizing the potential of the witness-accomplice’s evidence from the viewpoint of its credibility and weight, in order to ensure ‘the maximum degree of truthfulness of a person who is about to give testimony’ (per Justice Shamgar in Kinsey v. State of Israel [1], at p. 489; State of Israel v. Sha’ashua [30]). The value of arriving at the truth in a judicial proceeding depends, inter alia, on exhausting the probative value of testimonies, and this includes hearing the testimonies at a time when the circumstances give rise to the greatest likelihood of the testimonies being presented in a reliable and truthful manner. Where the hearing of testimony at a certain time gives rise to an inherent concern of bias because of improper considerations that motivate the witness when giving his testimony, then, in so far as possible, the judicial proceeding will seek to schedule the hearing of the witness’s testimony at a stage when the concern of bias is nullified, or at least reduced. In our case, the testimony of the witness-accomplice in the defendant’s trial, before his own trial has ended, may be influenced in various ways by his desire to improve his own position in his trial that has not yet ended, since his criminal liability has not yet been determined and he has not yet been sentenced. The bias may be reflected in the witness’s desire to please the prosecution in order to obtain a benefit, or in an attempt to exaggerate the role of the defendant in the offence and to distance himself entirely from it or minimize his own role in it, in the hope that this will result in his being treated more leniently in his own trial. The bias may also sometimes be reflected in an attempt to portray the defendant and himself as entirely innocent, while placing the blame on others. Postponing the testimony of the witness-accomplice in the defendant’s trial until after his own trial has ended may make the witness’s testimony more credible, since he can no longer expect his testimony in the defendant’s trial to be of indirect benefit to him in his own trial. The fear of a perversion of the truth and the desire to arrive at the truth are a major factor in the Kinsey rule (H. Sandberg, Rights of Defendants: the Right to a Separate Trial (2001), at p. 163). The value of arriving at the truth that the Kinsey rule is intended to serve seeks to prevent an erroneous conviction of an innocent defendant or an erroneous acquittal of someone who is guilty of a criminal act as a result of relying upon the self-serving testimony of a witness-accomplice. In this respect, the Kinsey rule was intended to further the general purpose of arriving at the truth in criminal trials, while safeguarding the rights of the defendant to a fair trial, which will protect him from the risk inherent in allowing incriminating evidence that is given for the self-seeking motives of the witness-accomplice.

An additional aspect of the Kinsey rule is the restrictions that are imposed on the testimony of a witness-accomplice before his own trial has ended, from the viewpoint of his right not to incriminate himself (s. 47(a) of the Evidence Ordinance). A witness-accomplice who testifies in the separate trial of a defendant before his own trial has ended has immunity against self-incrimination. Therefore he may refuse to answer questions in cross-examination that may incriminate him. This restriction naturally increases the risk inherent in allowing the self-serving testimony of the witness-accomplice, since it will be difficult to test it in cross-examination because of the aforesaid immunity. A possible solution to this problem lies in the provisions of s. 47(b) of the Evidence Ordinance, which gives the court discretion to order a witness to answer questions in cross-examination even on a matter that may incriminate him, but in such a case the evidence may not be used in the witness’s trial unless he consents thereto. This provision raises a complex issue concerning the scope of the immunity given to the witness-accomplice in his own trial where he is required to answer incriminating questions in the defendant’s trial before his own trial has ended. There are different schools of thought and approaches regarding the nature of the immunity given to a witness and its ramifications on the outcome of his trial. The conclusion that follows from the aforesaid is not only that the testimony of an accomplice before his own trial ends may be tainted by an inherent defect of improper considerations but also that the opportunity of testing it in cross-examination is limited, and the method that may be used to remove the restriction on cross-examination as aforesaid has a direct effect on the witness’s right not to incriminate himself in his own trial, to a greater or lesser degree.

The Kinsey rule is mainly a rule that concerns the timing for giving the testimony. In the circumstances described above, the timing may affect the reliability of the testimony, its weight and its probative value. The timing may affect the outcome of the trial and the purpose of arriving at the truth. The testimony of a witness-accomplice before his own trial has ended may result in erroneous convictions, and sometimes erroneous acquittals. Against this background, the rule provides that the timing of the accomplice’s testimony in the defendant’s trial should be after the accomplice’s own trial has ended. In such circumstances, the fear of an extrinsic motive affecting the testimony is allayed, and the likelihood of him giving true testimony is greater. Moreover, at this stage the restriction upon the cross-examination of the witness is removed, since the immunity from self-incrimination is not longer relevant, and at this stage all the probative tools may be employed in order to examine the credibility of the testimony.

The Kinsey rule — a rule of procedure as distinct from a rule of evidence

5.             The Kinsey rule is in essence a rule of procedure, as opposed to a rule of evidence. It is not intended to render the witness-accomplice incompetent to testify in the trial of his colleague before his own trial has ended, nor does it render his testimony inadmissible if he did testify. It is consistent with the general principle in s. 2 of the Evidence Ordinance that ‘everyone is competent to testify in any trial’ (State of Israel v. Sha’ashua [30], at p. 89). It is a procedural rule that seeks to exhaust the full probative potential of the witness-accomplice’s testimony by determining that the time he should testify is after his trial has ended, thereby allaying the fear of an improper motive that may accompany this testimony as long as his trial has not ended (J.D. Heydon, ‘Obtaining Evidence Versus Protecting the Accused: Two Conflicts,’ [1971] Crim. L. R. 13, at p. 18; Kinsey v. State of Israel [1], at pp. 480-481; Suissa v. State of Israel [32], at p. 533). Since it is a procedural rule that is intended, inter alia, to protect the procedural rights of a defendant, he may waive his rights and agree to the witness-accomplice testifying before the end of his trial. This case therefore focuses on a rule concerning the timing of the testimony of a witness-accomplice whose is being tried separately, and the premise is that his testimony at every stage of the trial is valid and admissible. Therefore, as a practice direction, the Kinsey rule sought to outline a desirable procedural method of determining the time when the witness-accomplice’s testimony will be heard; since it was formulated, and as long as it is law, the rule does not exclude judicial discretion to depart from it in such circumstances where its application is unsuited to the purposes that it seeks to achieve.

The Kinsey rule is not a strict rule either in theory or in the manner in which it is applied de facto; it is a procedural guideline that leaves room for judicial discretion to determine when it should not be followed (Kadosh v. State of Israel [29]; State of Israel v. Moses [28]). In practice, the courts have departed from the Kinsey rule more than once where they thought that applying it in the specific case did not achieve its purpose (CrimC (TA) 3160/04 State of Israel v. Levy [82]; CrimC (Jer) 3088/02 State of Israel v. Malca [83]; CrimC (TA) 40056/04 State of Israel v. Abramov [84]; see also details of additional cases in the concluding arguments of the Public Defender’s Office, at p. 12).

It should also be stated that over the years case law has restricted the scope of the Kinsey rule, as, for example, by determining that the rule does not apply to a witness-accomplice who has not yet been indicted (Moyal v. State of Israel [34]), nor to a state’s witness (Abeid v. State of Israel [33]) nor to a witness-accomplice who is called to testify for the defence (Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10]). We are therefore dealing with a procedural rule that can be applied by the court in a flexible manner in order to implement it where it is required to achieve its purpose. Nonetheless, it should be emphasized that in its everyday application the courts have implemented the Kinsey rule on a regular basis. Departures from the rule occurred sparingly and only in a handful of cases.

The Kinsey rule is a procedural rule that has no constitutional significance, and therefore any change to it does not require compliance with the limitations clause in the Basic Law: Human Dignity and Liberty, as argued by some of the respondents. When a procedural rule is formulated in case law it may also be changed in judicial proceedings, when this is required by the needs of both individuals and the general public that change with the times.

A reassessment of the Kinsey rule is not directly related to the general trend that is occurring at this time in the field of the rules of evidence, which seeks to replace rules of the admissibility of evidence with rules concerning its weight (State of Israel v. Haj Yihya [50], at p. 671). This is because this rule does not address the admissibility of the accomplice’s testimony but only the proper timing for giving it, as a matter of procedure.

Although we are dealing with a rule of judicial practice, the Kinsey rule has considerable influence on the process of discovering the truth in criminal trials. It has an effect on whether the defendant is convicted or acquitted. It has an effect on the witness-accomplice’s own case, not only with regard to the testimony given by him, but also with regard to the effect of his testimony on his own case, and on the scope of the immunity that he is supposed to enjoy in his own case. This rule has diverse repercussions — on the criminal trial from a general public viewpoint, on the defendant and on the witness-accomplice. We shall briefly discuss all of the conflicting considerations that arise with regard to the Kinsey rule, and thereafter we shall draw from this discussion the required operative conclusions, in so far as they concern the need to change the rule and are suited to the needs of the changing reality.

The considerations supporting the Kinsey rule

6.             The Kinsey rule concerning the timing of the testimony of a witness-accomplice in the separate trial of the defendant, his accomplice, is a creation of case law. But the rationale underlying it has a basis in the statutory arrangement in s. 155 of the Criminal Procedure Law [Consolidated Version], 5742-1982, concerning accomplices in crime that are charged jointly in one indictment. According to that provision, where one defendant pleads guilty to facts that are sufficient to convict him, and counsel for the prosecution or the defence wish to summon him to testify in the trial of a defendant who has not pleaded guilty, then the defendant who has pleaded guilty should not testify until he has been sentenced. The following is the language of the section:

‘Sentencing of a defendant who pleads guilty                155. (a) If several defendants are charged in one indictment and some of them plead guilty to facts that are sufficient for them to be convicted and others do not plead guilty, the court shall not sentence the defendants who have pleaded guilty before the trial of the defendants who have not pleaded guilty has been held; but

                (1) If a defendant does plead guilty in this way, and the prosecutor or defence counsel give notice that he will be called to testify in the trial of the other defendants, he shall not testify until he has been sentenced;

                (2) In special circumstances that the court shall record, it may sentence the defendant who has pleaded guilty before the trial of the others has ended.’

The purpose of this statutory rule is to ensure that a defendant who has pleaded guilty shall not testify in the trial for or against his accomplice before he is sentenced, because of the concern that his testimony will be biased because of the improper consideration of obtaining a benefit for himself in the sentence that has not yet been handed down. The probative interest in exhausting the reliability potential of the accomplice’s testimony led the legislature to depart from the general guiding principle that all the accomplices in the offence who are tried together should be sentenced at the same time, and it saw a justification for creating an exception that the sentence of a witness-accomplice who has pleaded guilty should be handed down before he gives testimony for or against his accomplices in the same indictment. The rationale underlying this provision was that the law should not allow a situation in which an accomplice who has pleaded guilty testifies when he has an expectation of receiving a benefit from his testimony, ‘where because of an expectation of that kind there are grounds to fear that the testimony will be false’ (per Justice H.H. Cohn in Kadouri v. State of Israel [12]).

It should be noted in parenthesis that s. 155 is limited to a case where the defendant who is summoned to testify has already pleaded guilty and his liability has been proved, in which case he should be sentenced before he gives his testimony with regard to his accomplice. But where he has not pleaded guilty, the rule is that accomplices in one indictment are not competent to testify as prosecution witnesses against one another in the same trial; but an accomplice may testify as a defence witness on his own behalf or on behalf of another of his co-defendants. In such circumstances, his testimony may also be used to incriminate another co-defendant. Thus, where an accomplice testifies as a defence witness in a trial in which the partners in crime are tried together, whether in his own defence or in defence of another defendant, his testimony may be used as evidence against another co-defendant. In such circumstances, it is also possible to submit in evidence his statement to the police, and to make use of it within the framework of s. 10A of the Evidence Ordinance, inter alia, for the purpose of incriminating the accomplice in crime who is his co-defendant in the same trial (CrimA 29/86 Barrett v. State of Israel [55]; CrimA 228/87 Karmi v. State of Israel [56]; Abu-Hatzeira v. State of Israel [14], at p. 152; CrimApp 1572/05 Zuartz v. State of Israel [57]).

There is therefore a difference between an accomplice who has pleaded guilty and may be sentenced before he testifies with regard to his co-defendant (whether as a prosecution witness or as a defence witness), in which case the testimony can be ‘cleansed’ of its defects by passing sentence before hearing the testimony, and an accomplice who does not plead guilty and is summoned as a defence witness, and in the process of testing the reliability of his testimony, his statement to the police is presented and he is cross-examined on his version of events. Here it is not possible to allay the concern that there is an improper motive in the accomplice’s testimony simply by postponing the hearing of the testimony to a later date. This is because the witness’s criminal liability has not yet been determined and splitting the trial of co-defendants by giving separate verdicts with regard to their criminal liability is regarded as an undesirable step that undermines the purpose of discovering the truth. Where it is possible from a procedural point of view to repair the ‘defect’ inherent in the accomplice’s testimony because of the concern of an improper motive and to sentence him before he gives his testimony, the law requires this with regard to defendants who are tried together.

This rationale, mutatis mutandis, lies at the heart of the Kinsey rule, which concerns accomplices who are tried separately. The essence of the rule is that a witness-accomplice who is summoned to testify as a prosecution witness in the separate trial of his partner ought to testify in circumstances that allow the probative potential of his testimony to be maximized. These circumstances exist when the witness’s trial has ended and there is no longer a concern that he is impelled by motives of self-interest in giving his testimony. In the absence of a statutory arrangement for this situation where partners in crime are tried separately, case law has filled the lacuna in the form of the Kinsey rule, which constitutes a direct offshoot of the rationale underlying s. 155 of the Criminal Procedure Law, which concerns partners in crime who are tried together.

The importance of the Kinsey rule should be examined from three different angles: first, the public interest in having criminal trials in which the truth is discovered, while giving the court the best tools for arriving at the truth; second, safeguarding the right of the defendant to a fair criminal trial that will protect him from an erroneous conviction; third, the effect of the immunity from self-incrimination that accompanies the witness-accomplice’s testimony both from the viewpoint of the defendant and from the viewpoint of the witness himself. Let us examine each of these angles.

The public interest in the Kinsey rule: discovering the truth and arriving at a correct result in criminal trials

7.             The criminal trial is designed to enforce and apply the norms of criminal law in order to ensure proper standards in society and to protect the safety of the inhabitants of the state. The ultimate purpose is to achieve a determination of guilt or innocence — to convict the guilty and to acquit the innocent. In order to arrive at a correct result in a trial, the rules of procedure seek to discover the truth. Without truth there can be no justice, and without justice the main purpose of the criminal trial will be frustrated.

‘The method whereby a trial achieves justice is by seeking after the truth. The trial is founded on the truth. Judicial proceedings are based on discovering the truth. Without truth there is no justice. Without truth there is no law. The truth — which judicial proceedings seek to discover — is reality as it truly is’ (A. Barak, ‘On Law, Dispensing Justice and Truth,’ 27 Hebrew Univ. L. Rev. (Mishpatim) 11 (1996).

The purpose of the criminal law to discover the truth in order to arrive at a correct result is not its only value. There is another conflicting value, which is the right of the defendant to a fair trial that will take into account his rights as a human being and as a defendant, and a balance is always required between society’s need to realize the purpose of the criminal law in ensuring the public interest and concern for the needs of the defendant so that no injustice is done to him in the course of seeking to discover the truth. The nature and main goal of the criminal trial was discussed by the court in CrimA 951/80 Kanir v. State of Israel [58], at p. 516, where it said (per Justice Barak):

‘The criminal trial is a legal framework that seeks to realize the criminal law, namely to determine innocence or guilt. To this end, the criminal trial should reveal the truth, and this is its main purpose. Naturally, requiring compliance with rules and revealing the truth are not two conflicting tasks. On the contrary, the rules are intended to determine a standard for conducting a trial, which from experience will make it possible to discover the truth, and in this these two goals are compatible. But there are cases where a formal insistence upon compliance with the rules of procedure in a certain matter will cause a miscarriage of justice, whether by way of an innocent person being convicted or a guilty one being acquitted. In these circumstances, we should seek to have the rules themselves give the court power and discretion to do justice… The experience that has formulated the rules of procedure has determined a delicate balance between the needs of the defendant on the one hand and the needs of society on the other. The needs of the defendant are his real needs for a fair trial, whether at the investigation stage or at the trial stage. The needs of society are its real needs to convict the guilty and acquit the innocent.’

Discovering the truth in a criminal trial is intended to bring about the conviction of the guilty and the acquittal of the innocent. It is intended to prevent erroneous convictions and at the same time also to prevent erroneous acquittals. It embodies the public interest in proper law enforcement and proper norms of conduct, which are essential for the running of a civilized society; it is intended to protect the rights of the defendant not to be erroneously convicted and to prevent an improper violation of his rights as a human being. At the same time, its purpose is to bring the guilty to justice and to protect society from the risks inherent in allowing a felon to go free. Ascertaining the truth serves the main purpose of the criminal trial: establishing the guilt or innocence of the defendant (CrimA 639/79 Aflalo v. State of Israel [59], at p. 575; MApp 838/84 Livni v. State of Israel [60], at pp. 733-734; D. Menashe, ‘The Ideal of Discovering the Truth and the Principle of Safeguarding against Erroneous Convictions — An Anatomy of a Complex Relationship,’ 1 Kiryat HaMishpat (2001) 307, at pp. 307-308).

The main goal of the criminal trial — establishing innocence or guilt — and the value of discovering the truth that is intended to realize this goal have an effect first and foremost on the right of a defendant to a fair trial that will result in a just outcome and prevent his being convicted erroneously. But this goal does not end here. It is intended to serve a larger public interest of obtaining a correct result in criminal trials, which includes the prevention of erroneous convictions and erroneous acquittals. Protecting the rights of the defendant in the criminal trial is not necessarily the same as or as comprehensive as the goal of obtaining a correct result in the trial. An outcome of a trial that is not a correct outcome — whether an erroneous acquittal or an erroneous conviction — undermines justice and the public interest in discovering the truth in criminal trials, even where the right of a defendant from the viewpoint of the fairness of the criminal trial is not violated. It is possible that the trial of a defendant will be conducted fairly and that all of his rights will be upheld, and at the same time it may arrive at a mistaken outcome of an erroneous conviction or an erroneous acquittal. The rules of criminal law seek to harmonize between the needs of the defendant to be given a fair trial and the public interest that the criminal trial should reach a correct outcome, even though these goals are not exactly the same and sometimes there is a tension between them that requires balancing and reconciling:

‘An erroneous acquittal, and certainly a false conviction, harm both the doing of justice and the appearance that justice is being done, and it may undermine public confidence in the ability of the judicial authority to do justice to the individual and to society’ (Yissacharov v. Chief Military Prosecutor [37], at para. 43 of the opinion of Justice Beinisch).

The value of discovering the truth in the criminal trial affects the rights of the defendant on trial, but it also goes beyond them and seeks to promote the general public interest of enforcing proper norms of conduct in society, a condition for which is that trials should reach a correct outcome. This value is indicative of the place of the law in the structure of government, and it realizes the values of the rule of law and law enforcement in a society that is built on a democratic system of government.

Within the scope of the goal of discovering the truth and arriving at a correct outcome in criminal trials, the rules of evidence have been built on two main foundations: the rules of admissibility, which determine ab initio what evidence is admissible in a trial and what is not, because of a concern that relying upon it will lead to an erroneous result, and the rules of assessing the reliability and weight of admissible evidence. The evolving trend of restricting the rules of inadmissible evidence and developing the sphere of assessing its probative reliability and weight makes it necessary to give the trial court tools to take full advantage of the probative potential of the admissible evidence that is brought before it. The general effect of the Kinsey rule on the judicial proceeding is that it improves the tools given to the court to reach the truth by taking full advantage of the reliability potential of the witness-accomplice’s testimony. It is difficult to argue against the premise that the timing of the witness-accomplice’s testimony in the defendant’s trial, at a stage after the witness’s own trial has ended, increases the likelihood that the full reliability potential of his testimony will be realized, which is not the case when his testimony is heard before his own trial has ended.

Those who support the cancellation of the Kinsey rule place their reliance on the ‘support’ that is required for the testimony of the witness-accomplice as a protective measure against relying on testimony that is biased and unreliable because of the interests of the witness whose trial has not yet ended. There is no doubt that the support that is required for the testimony of the witness-accomplice constitutes a protective measure against reliance upon false testimony as such. Notwithstanding, it should not be forgotten that we are speaking of a requirement of support for evidence that exists, which is intended to safeguard against a person being convicted when there is insufficient evidence to convict him. The requirement of support does not satisfy the need to realize the full potential of the evidence in order to arrive at the truth. It is not a substitute for evidence that does not exist. The supporting evidence that is required guards against the fear that reliance will be placed on unreliable and incorrect testimony. It is not a substitute for achieving the goal of discovering the truth in a criminal trial, which is realized by hearing testimony at a time when it is most likely to be reliable. The supporting evidence that is required will therefore safeguard against placing reliance on false testimony, and determining the outcome of the trial accordingly, but it will not satisfy the goal of discovering the truth that truthful testimony may provide. Relying solely on the requirement of support as a safeguard measure against erroneous convictions protects the rights of the defendant to a fair trial. It does not necessarily provide a complete solution for the need to discover the truth, which seeks to maximize the reliability potential of the witness’s testimony that is achieved, inter alia, by determining the timing for hearing his testimony.

It has been argued on more than one occasion that the Kinsey rule, which determines the timing of hearing the witness-accomplice in an attempt to remove the defects of the testimony, is inconsistent with the prevailing legal system in which other ‘defective’ testimonies are allowed at any stage of the trial and are assessed in accordance with their value and weight, to the best of the judicial discretion of the judge trying the case. This is the case, for example, the defence testimony of a witness-accomplice who testifies in a joint trial with his partners, which may incriminate them; the same is true of the testimony of an accomplice whose trial is taking place separately, who is called as a defence witness in the trial of the defendant, to which the Kinsey rule has not been applied (State of Israel v. Sha’ashua [30]); the testimony of an accomplice who has been given the status of a state’s witness and who is indebted to the prosecution can be heard at any stage of the trial. My colleague, Justice Levy (in para. 13 of his opinion) indicates a list of testimonies which suffer from an inherent defect, but despite this the judicial proceeding ‘suffers’ them to be adduced in the usual procedural order and places its reliance on the professional court that will know how to evaluate and weigh their defects correctly. Thus, for example, children, persons suffering from mental illnesses, retarded persons and persons who have been convicted in the past of perjury are allowed to testify, and the inherent limitations of these witnesses does not prevent their testimony from being heard (cf. Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at pp. 766-767). The Kinsey rule can answer these arguments in the following terms: there are defects that are inherent in evidence of various kinds and that do not affect their admissibility. In most of the cases, these inherent defects cannot be repaired or minimized by means of one proceeding or another, and therefore these kinds of evidence are brought in the normal way and in the usual procedural order, and they are assessed while taking their defects into account. This is the case with the defence testimony of an accomplice-witness in a joint trial with his partners; it is the case with the ‘state’s witness’; and it is also the case with other ‘defective’ testimonies whose defects cannot be repaired by the timing of hearing them. But where it is possible by procedural means to remove or reduce the defect, the position is different.

The ‘defect’ that accompanies the testimony of a witness-accomplice who testifies in the defendant’s trial before his own trial has ended derives from the timing of his testimony. The Kinsey rule came into being because it was thought that the procedural order of hearing the witnesses could contend with this defect, remove it or reduce it. It may be assumed that if there were an effective and fair procedural method of realizing the full probative potential of testimonies with other inherent defects, the rules of evidence would have provided a solution to this, even if we assume that ultimately the task of assessing the reliability and weight of the evidence belongs to the judge who is trying the case. But even if we discover other testimonies with inherent defects whose probative value can be improved by procedural means, and the law does not mandate the use of these, this in itself does not justify the cancellation of the Kinsey rule, as long as this rule has its own important rationale concerning the testimony of a witness-accomplice in the trial of a defendant before his own trial has ended.

The Kinsey rule, as a rule of procedure, does not absolutely guarantee that the testimony of the witness-accomplice who testifies in the defendant’s trial after his own trial has ended will be truthful. It is founded on a statistical analysis that is based on logic, common sense, experience and mainly an understanding of the thinking processes of witnesses who were themselves involved in the offences with regard to which they are required to testify. Taking full advantage of the probative potential of testimony that is heard in a trial is an important goal in a judicial proceeding, and especially in a criminal trial in murder cases. It is consistent with the purpose of discovering the truth in a trial, which lies at the heart of the general social values of proper and correct enforcement of the law and the norms of the criminal law, and it is the essence of the protection of the rights of the individual (the defendant).

Notwithstanding the central importance of the value of discovering the truth, it is not the only value on which the criminal trial is based. Other values and goals that are worthy of protection compete with it and sometimes conflict with it. Some of these values are intended to protect the individual — whether it is the defendant, the victim of the offence or a third party that is unrelated to the offence — whereas others are intended to protect general interests of society, such as the security of the state, public safety or another important interest of society. The competition between the value of discovering the truth in a trial and other important values gives rise to a need to find a proper balance, which is based on an assessment of the relative weight of the competing values. Consequently, the value of discovering the truth is not an absolute value, but a relative value that should be balanced properly against conflicting interests (Yissacharov v. Chief Military Prosecutor [37], at para. 44; D. Menashe, ‘Judicial Discretion in Fact Finding, Freedom of Proof and Professionalism of the Courts,’ 43 Hapraklit (1993) 83, at p. 117). This competition is a factor in deciding the fate of the Kinsey rule, which mainly focuses on finding the proper balancing point between the value of discovering the truth in a criminal trial and the right of the defendant to a fair criminal trial, which will be completed within a reasonable time.

The importance of the Kinsey rule from the defendant’s viewpoint

8.             In addition to the importance of the Kinsey rule for discovering the truth and arriving at a correct outcome in a trial, it also has a value in that it protects the right of the defendant to a fair criminal trial. In this regard, the rule is intended to provide a solution, by procedural means, to the fear of an injustice to the defendant that may arise as a result of a distortion of the truth by a biased witness-accomplice, who is trying to use his testimony to obtain an indirect benefit in his own trial that has not yet ended. This distortion is likely to derive from a possible tendency of the witness to deny or minimize his part in the offence, while increasing the role of the defendant as the party solely or mainly responsible for committing the offence. This tendency naturally increases where the trial of the witness-accomplice has not yet ended, and he hopes to derive some kind of benefit or a leniency in sentence as a result of giving such testimony.

The testimony of the witness-accomplice in a defendant’s trial before the witness’s trial has ended presents an additional difficulty from the defendant’s viewpoint. This derives from the witness’s right not to incriminate himself, which he has at this stage of the trial. This immunity significantly restricts the extent to which this witness may be subjected to cross-examination, which is intended to test the credibility of his evidence (s. 47(a) of the Evidence Ordinance). This restriction becomes even greater in view of the fear that the accomplice’s testimony may be self-serving, and conducting a full cross-examination is therefore important in order to test the credibility and weight of the testimony. Alternatively, if the witness is required, despite the immunity, to answer questions that may incriminate him, this testimony will be privileged in his trial (s. 47(b) of the Evidence Ordinance). One way or the other, the testimony of the accomplice in the defendant’s trial before his own trial ends causes difficulties both for the defendant and also for the witness-accomplice. From the viewpoint of the defendant, the testimony of the witness-accomplice before the end of his own trial also requires support, and because of the ‘fragility’ of that testimony because of its timing, which invites a possibility that it will be self-serving because of improper and self-interested considerations, real support of considerable weight will be required in order to counter the danger of the self-serving testimony. At the same time, from the viewpoint of the defendant, the repeal of the probative requirement of corroboration for the testimony of the accomplice that existed in the past and the possibility of being satisfied today merely with support increase the danger of an erroneous conviction. This danger, from the viewpoint of the defendant, is of particular importance when considering the factors relevant to the fate of the Kinsey rule.

It is important to point out in this context that the Public Defender’s Office, the Israel Bar Association and the defence counsel who appeared on behalf of the defendants in this case all adopted the same position that supports the continued application of the Kinsey rule, on the ground that it protects the rights of the defendant in criminal trials and reduces the danger of erroneous convictions as a result of the false testimony of accomplices who seek to obtain a benefit from their testimony before their trial ends. This position was adopted despite the heavy price that is currently paid by defendants who are held under arrest until the end of proceedings in serious criminal cases, since the Kinsey rule frequently results in their period of arrest being extended, sometimes for long periods, as a result of the need to wait until the end of the trial of the witness-accomplice, and despite the lengthy delays in trials as a result of the heavy burden of cases weighing on the court.

The importance of the Kinsey rule from the viewpoint of the witness-accomplice

9.             Calling the witness-accomplice to testify in the defendant’s trial before his own trial has ended raises a complex issue concerning the right of the witness not to incriminate himself.

Section 47 of the Evidence Ordinance provides:

‘Incriminating evidence      47. (a) A person is not liable to give evidence if it contains an admission of a fact that is an element of an offence of which he is charged or of which he may be charged.

                (b) If a person requests to refrain from giving evidence because it may incriminate him as stated in subsection (a) and the court refuses the request and the evidence is given, the evidence shall not be submitted against that person in a trial in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto.’

The significance of this provision is two-fold: the witness-accomplice has the right to refrain from giving testimony that can incriminate him (subsection (a)). If the court rejects his request not to deliver incriminating testimony and he is required to give it, that evidence may not be brought in the trial of the witness in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto (subsection (b)).

The implementation of this provision may lead to one of the following: restricting the cross-examination of the witness-accomplice solely to matters that do not involve self-incrimination, or requiring the defendant to give full testimony that does incriminate him, subject to the privilege against use of that evidence in the witness’s trial for the same or a similar offence.

The first possibility protects the interest of the witness-accomplice, but harms the interest of the defendant. Restricting the cross-examination of the witness-accomplice solely to matters that do not incriminate him undermines the efficacy of the cross-examination as a main test of the witness’s credibility. This harm is aggravated by the inherent fear that the witness’s testimony against the defendant will be self-serving, when his trial has not yet ended. The restriction upon cross-examination as aforesaid increases the risk of harm to the defendant in the form of an erroneous conviction.

The second possibility gives the court a means of compelling the witness to answer incriminating questions in cross-examination, subject to his incriminating testimony being privileged in his own trial. This gives rise to a complex question of the scope of the immunity that is required in these circumstances: are we speaking only of a direct immunity with regard to the testimony that was given and with regard to the trial of the witness-accomplice on the same or a similar offence, or are we speaking also of an indirect immunity that extends to matters that may arise indirectly from that testimony and that tie the hands of the prosecution in investigations deriving from the incriminating testimony and in how they deal with the trial of the witness-accomplice (see, in this regard, the comprehensive research in Dr H. Sandberg, Rights of Defendants: the Right to a Separate Trial (2001), at p. 163 et seq.; U. Struzman, ‘The King is Naked or the Jury that Controls the Court in Israel,’ 13 Tel-Aviv University Law Review (Iyyunei Mishpat) (1988) 175, at pp. 207-211).

Prima facie, the immunity given to the witness-accomplice under s. 47(b) of the Evidence Ordinance is an immunity that is restricted to the incriminating evidence itself, for the purpose of his trial on the same or a similar offence only. The fear that the statements made in the incriminating testimony will be used indirectly in the witness-accomplice’s trial may deter him from giving any testimony at all. This may lead to the witness-accomplice remaining silent because of a fear of self-incrimination. In these circumstances, it is to be assumed that the incriminating statement made to the police will be filed in accordance with s. 10A of the Evidence Ordinance, but the defendant will not have the effective tool of cross-examination in order to test the reliability of the witness’s statement to the police. Reliance upon the statement of the witness-accomplice to the police presents a similar difficulty because of the fear that it is self-serving and tainted by the personal motives of the person who was interrogated, who hopes to obtain some consideration or benefit for making a statement before an indictment is filed against him (N. Zaltzman, ‘Co-defendants and Section 10A of the Evidence Ordinance,’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) (1983) 660).

A witness-accomplice who testifies after his trial has ended is liable to answer fully in cross-examination and he no longer has a claim of immunity against self-incrimination. The cancellation of the Kinsey rule therefore has a direct effect not only on the defendant but also on the witness-accomplice and his fate, from the viewpoint of the scope of the immunity given to him in his own trial, which is pending at the time when he gives his testimony in the defendant’s trial.

The witness-accomplice in American and Canadian law

10. In American law, the de facto position is similar in its results to the position in our legal system under the Kinsey rule, but the causes underlying this position are different: whereas the Kinsey rule places an emphasis on the protection of a defendant from the self-serving evidence of a witness-accomplice, American law emphasized the interests of the witness-accomplice and his right not to incriminate himself when he testifies in the defendant’s trial before his own trial has ended. In the United States there is no prohibition against calling the witness-accomplice to testify in the defendant’s trial before his own trial has ended, but the witness-accomplice’s broad immunities from self-incrimination lead de facto to the same result, whereby there is a desire to separate the witness’s testimony in the defendant’s trial from the witness’s own trial. The right not to incriminate oneself is a constitutional right in the United States and it is enshrined in the Fifth Amendment to the Constitution. Section 6002 of title 18 of the U.S. Code provides that self-incriminating testimony that a witness-accomplice is ordered to give is privileged, together with ‘any information directly or indirectly derived from such testimony or other information,’ which may not be used against the witness in his trial (Sandberg, Rights of Defendants: the Right to a Separate Trial, at p. 174). In practice, the prosecution in the United States is compelled to agree to give broad immunity to the witness-accomplice or is compelled to agree to his being a state’s witness, and therefore it often prefers to wait to hear the testimony of the witness-accomplice until his own trial has ended (Kastigar v. United States [86]). The double immunity against direct and indirect use of the witness’s incriminating testimony makes it very difficult to bring the witness to trial after he has incriminated himself, and therefore the prosecution is often compelled to grant absolute immunity to the witness in return for his testimony. By granting such immunity, the testimony of the witness-accomplice in the defendant’s trial is severed and disassociated from his testimony in his own trial. With regard to the testimony of the witness-accomplice, the rule in the United States is similar to the Kinsey rule, namely that the hearing of the testimony of the accomplice should wait until the end of his trial (Byrd v. Wainwright [92]; U.S. v. Echeles [93]; see also McCormick, On Evidence, 1999, at pp. 490 et seq; Sandberg, ibid.).

In Canada, the legal position is similar to the one in the United States (s. 13 of the Canadian Charter of Rights and Freedoms and s. 5 of the Canada Evidence Act). Here too the focus is on the immunity of the witness-accomplice against self-incrimination, so that compelling him to testify gives him direct and indirect immunity for his incriminating answers (R. v. S. (R.J.) [94]).

This analysis indicates that even though the law in the United States and Canada focuses on the witness-accomplice from the viewpoint of the risk of self-incrimination, the practical result in those legal systems is similar to the one reached in our legal system by applying the Kinsey rule, namely the aspiration to separate, in so far as possible, the testimony of the witness-accomplice in the defendant’s trial from his testimony in his own trial, notwithstanding the difference in the centres of gravity lying at the heart of the various legal systems that lead to this result.

‘Speaking with two voices’

11. Indicting two accomplices in crime separately may sometimes lead to differences in the factual findings and legal determinations in the separate trials of the accomplices. Every trial is a separate proceeding and each of the verdicts stands on its own and is based on the evidence that was adduced in that trial. A court’s findings of credibility with regard to a witness are inadmissible as evidence in another trial in which the witness is testifying, even if the subject of the testimony in the two trials is the same (CrimFH 4971/02 Zagouri v. State of Israel [61]; CrimA 4391/91 Hawaja v. State of Israel [62], at p. 51; CrimA 2309/90 Sabah v. State of Israel [63]). Notwithstanding, conflicting verdicts with regard to different defendants are likely to create a special difficulty when they concern the same case and where they are irreconcilable with common sense and basic logic. The existence of such an inconsistency may lead to a feeling of injustice and a lack of confidence in the law and justice system (CrimA 3427/91 Salah v. State of Israel [64]). Thus, for example, a judicial result whereby one defendant is convicted of being an accomplice of another person in committing an offence, and the other person is acquitted of that offence, may constitute ‘speaking with two voices.’ Indeed —

‘In an offence of conspiracy, which by its very nature requires the existence of an agreement between two or more persons, it is difficult to imagine a situation in which one person will be convicted of a criminal conspiracy while the other persons who are indicted for the conspiracy are acquitted, so that only one person is convicted of an offence which, by its very nature, requires the criminal involvement of several persons’ (CrimA 4391/03 Abu Ria v. State of Israel [65], at para. 16; CrimA 573/72 Habura v. State of Israel [66]; CrimA 144/92 Cavalero v. State of Israel [67]).

An inconsistency between verdicts that is irreconcilable in accordance with objective criteria must be harmonized. In general, it will be difficult to reconcile two separate verdicts that deal with two accomplices in crime who are charged with the same offence, when the acquittal of one and the conviction of the other were decided on the same probative basis (Abu Ria v. State of Israel [65], at para. 16; CrimA 474/75 Salem v. State of Israel [68]; Zagouri v. State of Israel [61], at p. 379).

The concern of conflicting verdicts in separate trials of two accomplices may increase if the Kinsey rule is cancelled. The testimony of a witness-accomplice in the trial of a defendant before the witness’s trial has ended may be self-serving evidence, which exaggerates the role of the defendant in the commission of the offence and minimizes the role of the accomplice. The restriction on the cross-examination of witness-accomplice before his trial ends because of the immunity against self-incrimination restricts the possibility of ascertaining his role in the case. Even if he is required to answer incriminating questions in the cross-examination, his answers may not be used against him in his own trial. The defendant may be convicted as a result of this testimony. The testimony of the witness-accomplice that minimizes his own role or distances himself from the offence, together with the immunity given to the evidence that incriminates him in his testimony in the trial of the other defendant may result in his being acquitted of the offence that is based upon a criminal conspiracy between accomplices in crime. It is even possible that the probative status of the witness’s statements to the police in the defendant’s trial will be different from their status in the witness’s trial. A situation may arise in which only one conspirator will be convicted, whereas the other conspirators will be found to have no criminal liability. The difficulty in reconciling the contradiction in which there is only one conspirator who is liable for a criminal conspiracy may require the conviction of the defendant to be overturned in order to equate his position with that of the witness-accomplice, in order to prevent an irrational outcome. The defendant’s procedural rights will be entitled to protection in such circumstances, but it is questionable whether this proceeding is best suited to discovering the truth. A similar outcome of speaking with two voices may occur even with the Kinsey rule, when two courts in two separate proceedings arrive at different assessments of the evidence that is brought before them and draw different conclusions from it. But the risk of this phenomenon happening is likely to increase, so it would seem, where the testimony of the accomplice in the defendant’s trial is self-serving and may affect the outcome of the defendant’s trial in a way that is inconsistent with and cannot be reconciled with the outcome of the accomplice’s own trial.

The Kinsey rule — in the spirit of English case law

12. The Kinsey rule was formulated in Israel in the wake of the English common law (R. v. Pipe [98]; Winsor v. R. [105]). The principle that was held in R. v. Pipe [98] is still valid in England (Tillett v. R. [106]), even though over the years the scope of the rule has been limited to those cases in which it is strictly applicable and it is not a binding absolute rule, and it has been held that it does not apply to a witness-accomplice who testifies as a defence witness (R. v. Richardson [99]). It is also not applied today to a witness-accomplice who is a state’s witness (R. v. Turner [100]). See further: C. Tapper, Cross & Tapper on Evidence (ninth edition), at pp. 199, 225-229.

Legislative attempts to change the Kinsey rule

13. It is important to point out that in the past two government-sponsored legislative proposals were tabled in the Knesset to cancel the Kinsey law (the draft Evidence Ordinance Amendment Law (no. 10), 5752-1992 (Draft Laws 5752, no. 2103, at p. 170); the draft Evidence Ordinance Amendment Law (Amendment no. 13) (Testimony of Accomplice), 5759-1999 (Draft Laws 5759, no. 2788, at p. 314)). These proposals did not become law. This fact may indicate the difficulty and complexity involved in a cancellation of the Kinsey rule in its entirety without creating a set of proper balances for this purpose.

The price of the Kinsey rule — its significant contribution to the prolongation of criminal trials, its adverse effect on the efficiency of criminal trials and its violation of the liberty of the defendant who is under arrest

14. The Kinsey rule is a procedural rule that affects the procedural rights of both the defendant and the witness-accomplice. It constitutes an important factor in the criminal trial and it can be seen to affect who whole criminal trial. An outlook that seeks to divorce the role of the Kinsey rule artificially from its effect on the criminal trial, including its length, the extended periods during which defendants are held under arrest or the possibility of releasing dangerous defendants on bail with the accompanying concern of the possible harm to public safety is an outlook that splits the criminal trial into unrelated parts without examining the relationship that they necessarily have on one another. An outlook that examines this relationship in order to create a harmony between the various components of the criminal trial and in order to reconcile them in a rational manner is the one that is likely to achieve the proper solution. It is therefore necessary to examine the effect of the Kinsey rule on the whole criminal trial, and especially its consequences for the length of the trial and the defendants who are held under arrest for its duration.

15. The Basic Law: Human Dignity and Liberty determines the constitutional right of a human being to personal liberty. It provides in s. 5 that a person’s liberty should not be taken away or restricted by imprisonment or arrest; this provision is subject to the limitations clause in s. 8 of the Basic Law, which permits a violation of a constitutional right given under the Basic Law if it is within the framework of a law that befits the values of the state, is intended for a proper purpose and is not excessive. The Criminal Procedure (Enforcement Powers — Arrests) Law and the arrangements thereunder today fall within the scope of the limitations clause and they require a continual examination of the question whether the arrest of a person and the length of time he is held under arrest before his case is decided are proportionate, in view of all the values and interests that are relevant to the case (CrimApp 537/95 Ganimat v. State of Israel [69], at p. 414; CrimA 4424/98 Silgado v. State of Israel [70], at pp. 539-540; A. Barak, ‘The Constitutionalization of the Legal System following the Basic Laws and its Ramifications on (Substantive and Procedural) Criminal Law,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 5, at pp. 21-25; E. Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 155; D. Dorner, ‘The Effect of the Basic Law: Human Dignity and Liberty on the Arrest Laws,’ 4 Mishpat uMimshal (1997) 13; Y. Karp, ‘The Criminal Law — A Janus of Human Rights: Constitutionalization in the light of the Basic Law: Human Dignity and Liberty,’ 42 HaPraklit 64 (1995), at p. 64; B. Okon and O. Shaham, ‘Due Process and a Judicial Stay of Proceedings,’ 3 HaMishpat (1996) 265, at pp. 265-267).

With respect to criminal trials, the arrest laws carry the full weight of the value of protecting the liberty of the individual (the defendant) before his guilt is proved — a liberty that is violated by the burdensome constraints of arrest — and they determine limits and restrictions upon the power of the court to order the arrest of the defendant before his verdict is pronounced, and also to extend the period during which he is held under arrest (ss. 21, 60-62 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996; Zada v. State of Israel [19]).

The prolonging of the criminal trial until a verdict is pronounced gives rise to serious questions where the defendant presents a considerable danger that justifies his being removed from society until his trial ends. This dilemma, which is the result of the problematic tension between the defendant’s right to his personal liberty while he enjoys the presumption of innocence and the public’s right to be protected from the harm that can be expected from releasing a dangerous person, becomes continually more acute as the burden on the court increases and leads to the prolonging of the criminal proceedings. This prolongation is also caused by the changes that have occurred in criminal activity, which has become far more complex and sophisticated, involves more participants and has a more widespread effect on the public. Inter alia, there has been an escalation in organized crime, which sometimes goes beyond the borders of the state, and is especially complex and dangerous.

The application of the Kinsey rule demands a heavy toll in the prolonging of criminal trials. When the rule was introduced thirty years ago, the burden of cases before the courts was incomparably smaller than the current burden, and the scope and complexity of crime were very different. The burden of trials currently weighing upon the court is unbearable. We are dealing not only with a change that has occurred in the number of trials brought before the court, but in their level of complexity and severity, and the scope of the events involved. Frequently trials are held before the courts with regard to serious and wide-ranging criminal activity, which involve huge amounts of evidence and require considerable amounts of judicial time. Often these serious cases involve a large number of defendants who need to be held under arrest until the end of the trial because they are so dangerous. This situation means that a trial cannot end without prolonged proceedings for hearing the evidence. In such circumstances, ending a trial within the statutory arrest period of nine months, as stipulated in the Criminal Procedure (Enforcement Powers — Arrests) Law, is a very difficult target to reach, and serious tension is created between the rights of defendants to their personal liberty while they have the presumption of innocence and the general interest of protecting public security by preventing dangerous defendants from being released before their trial has ended and the question of their guilt has been decided. When criminal proceedings are drawn out because of the complexity of the issues before the court, the Kinsey rule becomes a part of this conflict between the right of the defendant who is under arrest to his personal liberty as long as his case has not been decided and the public interest to protect its security, which operates to prevent the release of a dangerous defendant, and it becomes an additional factor that prolongs the criminal trial. The need to wait until the witness-accomplice’s trial has ended to hear his testimony directly affects the length of the defendant’s trial and the period during which the defendant is held under arrest, and it leads in practice to repeated extensions of the period during which defendant are held under arrest until their trial ends, sometimes far in excess of the statutory period prescribed for finishing a trial when the defendant is being held under arrest. Sometimes, this prolonging of the trial results in dangerous defendants being granted bail, which endangers the security of the public. The heavy price for applying the Kinsey rule is paid both by the defendant and the public: the defendant who is in custody while he waits for the trial of his accomplice to end amid prolonged and complex judicial proceedings, and the public when a dangerous defendant is released on bail because of the length of the trial, which constitutes a danger to the safety of the public.

Sometimes applying the Kinsey rule encourages accomplices in crime to adopt manipulative measures in the relationship between them, whereby the witness-accomplice is induced to drag out his trial in order to create pressure in the defendant’s trial and strengthen his demand to be released on bail.

The prolonging of the criminal proceedings and the tension that this creates for all the parties involved sometimes leads the prosecution authorities to take significant short cuts in prosecuting the defendant, which may take the form of making plea bargains of various kinds, waiving prosecution witnesses, amending the indictments, reducing the charges, and so forth.

The prolonging of the proceedings also has a deleterious effect on the victims of the offence, who expect the defendant who committed a crime against them to be brought to justice and begin to serve his sentence within a reasonable time.

Finally, the prolonging of the trial proceedings to an unreasonable degree undermines the efficacy and deterrence of the criminal trial. The prolonging of the criminal trial does not merely harm the defendant who is waiting for his trial to end while he enjoys the presumption of innocence. It undermines society’s recognition of the need to finish trials efficiently in order to preserve the deterrent effect inherent in them. This has a direct effect on the ability of the law enforcement system to fight crime effectively and to contend with the important task of protecting public safety. Defendants and the prosecution authorities pay a heavy price for the application of the Kinsey rule and the consequent prolonging of proceedings. The public interest that criminal trials will be effective and serve as a deterrent is also undermined.

The defendant’s dilemma — the benefits of the Kinsey rule as compared with the prolonging of the trial and the extended period of arrest

16. Applying the Kinsey rule against the background of procedural realities at the current time affects the duration of the loss of liberty of a defendant who is held under arrest during his trial. On the other hand, it is precisely defendants, including the Public Defender’s Office that represents them and the Israel Bar Association, that emphatically oppose the cancellation of the Kinsey rule because they are concerned that a witness-accomplice will utter self-serving testimony in their trial, which may lead to their being convicted on the basis of false testimony. In the dilemma between the harm to their interests that may arise from the cancellation of the rule and the price that they may pay as a result of the prolonging of the trial and the possibility that their period of arrest will be extended, they give decisive weight to the first consideration. Even though they did not give their consent to the prolongation of their period of arrest, the defendants in the case before us adopted a definite approach that is opposed to the cancellation of the Kinsey rule, and, as we have said, so did the Public Defender’s Office and the Israel Bar Association. Notwithstanding, they emphasized the need to adopt administrative measures expeditiously to improve the way in which the courts contend with the burden of cases in order to shorten proceedings, provided that it is not at the cost of cancelling the Kinsey rule.

The position of the defendants and the institutions that have the responsibility of defending them is very important. Notwithstanding, giving a defendant the choice of waiving the Kinsey rule or insisting upon its application in his own case, while implicitly also acquiescing in the possibility of the prolonging of the trial and the risk of an extension of the period of arrest, is a difficult choice that a proper judicial process should not delegate to a defendant. The legal system requires a proper solution to the dilemma that has arisen: should the Kinsey rule be allowed to remain, should it be cancelled or is it perhaps possible to reconcile the conflicting values by means of a relative balancing that is not based on either extreme? This balancing should take into account, on the one hand, the interest of maximizing the full probative potential of the testimony of the witness-accomplice, which is realized by calling him to testify in the defendant’s trial after his own trial has ended, and, on the other hand, the harm caused to the constitutional right of the defendant as a result of the prolonging of the trial while he is held under arrest, and the damage caused to the public interest by the prolonging of the trial in general, which undermines its efficacy and the deterrent effect. In this balance, the interest of maximizing the probative value of the existing evidence in order to discover the truth and protect the defendant from being convicted erroneously competes against the harm to the defendant’s personal liberty, which is the price that he is required to pay while waiting from the trial of the witness-defendant to end before he testifies in the defendant’s trial. There is no magic formula for reconciling these values. The proper solution lies in the approach that the competing values are not absolute, but only relative, and they should be reconciled by means of a degree of compromise on each side. Just as there is a need to balance the conflict between the right of the individual to a fair trial against the rights of society and its individual members to an effective war against crime and, in so doing, to refrain ‘from paying too dear a price, whether because of an eagerness to succeed in the war against crime or because of the opposite desire to overprotect suspects and defendants’ (Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 761), so too the interest of society and its members to realize the goal of a just trial should be balanced against the essential need of the individual and the public to have effective criminal trials.

The methods of balancing the competing values

17. The Kinsey rule has an important probative purpose of seeking to maximize the probative potential of the accomplice’s testimony that can be obtained after his trial has ended, when the motives arising from his own trial that may lead him to give false testimony no longer exist. This rule is consistent with the general purpose of a trial, which is to discover the truth; it serves the purpose of giving the defendant a fair trial; it prevents the possibility that the witness-accomplice’s right not to incriminate himself will be violated and that restrictions will be imposed on the witness-accomplice’s trial because of his privilege against self-incrimination which is given by the court in the defendant’s trial. On the other hand, the cost of this rule in prolonging trials is considerable, since the ever-increasing burden on the courts, the complexity of trials, the number of defendants and the sophistication of modern crime lead to a violation of the liberty of defendants, who wait a long time for their trials to end while they are being held under arrest. The violation of the liberty of defendants as a result of this delay is exacerbated by the Kinsey rule; releasing dangerous defendants on bail because of the length of the trial may undermine the security of the public; the rule has on more than one occasion resulted in significant shortcuts being taken by the authorities in prosecuting the case in order to reduce the hardship caused to defendants; there is a major conflict between the fear of a miscarriage of justice and the danger of such hardship. The prolonging of the trial harms victims of crime who expect an effective legal process; the deterrence of criminal trials is undermined, and this affects the image of the judicial system and public confidence in the efficacy of the law enforcement process.

The Kinsey rule was formulated in an age when its advantages clearly outweighed its disadvantages. The advantage of maximizing the probative value of the witness-accomplice’s testimony by having him testify in a defendant’s trial after his own trial has ended did not at that time entail such a substantial cost in terms of the prolonging of criminal proceedings in the defendant’s case, sometimes for a period of years, which is the result of applying it today. Times have changed, and today the benefit arising from the application of the Kinsey rule, namely its contribution to discovering the truth and arriving at a correct verdict, is mitigated by the harm that it causes to the right of defendants that are being held under arrest to their personal liberty as long as they have not been convicted, and to the image of criminal trials in general. Were it possible to assume that the social reality could be changed overnight and the overburdening of the judicial system could be overcome by major structural changes and the allocation of additional resources, it is possible that the dilemma would be solved. But the likelihood of a complete and swift solution of the problem of overburdening and the prolonging of trials, with all that this involves, is not great, and therefore a balance between the conflicting values is required. This balance does not, in my opinion, justify a sweeping conclusion that the Kinsey rule should be cancelled in its entirety as my colleague Justice Levy proposes. On the other hand, it does not justify leaving the rule as it stands without any change, thereby ignoring the profound changes that have occurred in the holding of criminal trials. The proper solution requires a balancing of the conflicting values and a modification of the rule to fit current needs, in a way that gives proper expression to the relative weight of the rule’s advantages and its disadvantages in the light of prevailing realities. This court addressed this only a few years ago, when it said that ‘we should not treat the rationale underlying the Kinsey rule lightly, and care should be taken not to cancel it without first considering all the consequences of doing so’ (Kadosh v. State of Israel [29], per Justice Beinisch; see also the need to balance the interests affected by the Kinsey rule in Y. Ginat, ‘Has the Time Come to Re-examine the Kinsey Rule,’ 42 HaPraklit (1995) 376, and cf. A. Kamar, ‘Towards a Cancellation of the Kinsey rule,’ 42 HaPraklit (1995) 548).

When making the balance, introducing a rule that deprives the judge in every case of the discretion to order the testimony of a witness-accomplice to be heard after his trial has ended and that compels him to hear the testimony even when his trial has not ended gives the value of the efficiency of the criminal trial and the value of the defendant’s liberty that goes with it an absolute pre-eminence over the value of arriving at the truth and protecting the defendant from an erroneous conviction. On the other hand, a rule that would usually prevent the testimony of a witness-accomplice in the defendant’s trial before his trial has ended gives decisive weight to the value of arriving at the truth and protecting the defendant from an erroneous conviction, while minimizing the weight of the value of the efficiency and proper conduct of criminal trials, including the right of a defendant who is held under arrest to his personal liberty prior to the verdict. It is therefore essential to combine the purposes inherent in these two extreme possibilities in a way that will create a relative balance and a rational harmonization between them (D. Wiener & N. Harduf, ‘Has the Time Really Come to Cancel the Kinsey Rule?’, 33 HaSanegor (1999) 3).

The balancing when applying the Kinsey rule

18. The proper balance between the conflicting values will be achieved by a selective cancellation of the Kinsey rule, which will leave the trial court judicial discretion, in exceptional cases, to order the witness-accomplice’s testimony to be heard only after his trial has ended. The fate of the defendants who are held under arrest, in the light of the prolonging of the trial and the general harm to the efficacy of the criminal trial and its deterrent effect, tip the scales in favour of justifying the cancellation of the Kinsey rule, while leaving the trial court discretion to apply it in special circumstances and for special reasons. This discretion ought to be exercised in a small number of cases where the advantages of applying the rule clearly outweigh the disadvantages. Whereas until now the judicial practice has tended to apply the rule broadly while allowing departures from it in a very small number of cases, today the position should be reversed because of the significant cost in terms of the length and cumbersomeness of the criminal trial. The purpose of doing justice when considered as a whole will be undermined if the present position continues. Notwithstanding, changing the balancing point as aforesaid does not absolutely rule out judicial discretion to apply the Kinsey rule in appropriate cases, but these should only be exceptional and unusual cases. The rule will therefore become the exception, and the exception will become the rule. This is the essence of my proposal.

Before we outline possible examples of special reasons for applying the rule, we should say as a general principle that the testimony of a witness-accomplice should usually be heard in the defendant’s trial, in so far as possible, after all or at least most of the prosecution witnesses have testified. Thereby there is the greatest possible chance that the witness-accomplice’s trial will have ended before he testifies in the defendant’s trial, without this involving any special delay caused by waiting for the witness-accomplice’s trial to end. If, notwithstanding, the witness’s trial has not ended when his testimony is required, then there may be special reasons to exercise judicial discretion and to apply the Kinsey rule, inter alia in the following situations (subject to the special circumstances of the specific case):

(a) Where the court is of the opinion that the weight of the accomplice’s testimony, in relation to all the other evidence that has been adduced, has a ‘critical mass’ for the fate of the trial, and the timing of this testimony at the stage after the trial in the accomplice’s case has ended is likely to make a significant contribution to maximizing the probative potential of that testimony and arriving at a correct verdict in the trial;

(b) Where a defendant is not being held under arrest, or where he is being held under arrest but he is also simultaneously serving a sentence of imprisonment for other offences, so that the delay in ending his trial is not the direct cause of his loss of liberty;

(c) Where the defendant applies to have the testimony of the witness-accomplice in his case postponed until after the witness’s trial has ended, on the understanding that this application is likely to lead to an additional extension of the period during which he is held under arrest pending judgment in his trial. Within the scope of the judicial discretion, this application should be considered from a broad perspective, with reference inter alia to the proper management of the criminal trial from the viewpoint of the general public interest.

(d) When the witness-accomplice’s trial will end in a short period of time, relative to the total amount of time required for a trial, so that the probative advantage arising from a short delay outweighs the harm that may be caused by merely a short delay in the defendant’s trial, the court may exercise its discretion to wait until the witness’s trial ends to hear the testimony.

These scenarios are not an exhaustive list, but the assumption that underlies this proposal is that henceforth the application of the Kinsey rule will be the exception to the rule, and it will be applied sparingly in special cases in which the advantages of the rule outweigh the disadvantages, in view of the special circumstances and characteristics of the case.

19. I am not troubled by the concern, which has been expressed on several occasions, that giving judges discretion to depart from a procedural rule for special reasons may lead to the exception becoming the rule and to an excessive use of the margin of discretion that is supposed to be used sparingly. Judicial experience shows that the needs of reality and the needs of the law are so varied, so complex and so multi-faceted that the application of strict procedural rules without any possibility of departing from them and without any means of adapting them to special situations may cause damage that is often greater than the benefit that they bring. A judge may be presumed to exercise his discretion prudently and reasonably and to apply the exception to the rule with restraint and with an understanding of and respect for the limits of judicial power. The trial court has judicial discretion to depart from procedural rules for special reasons in many matters, and I do not see any good reason why it should not have it in this matter also, on the assumption that it will be exercised properly. This is especially true in circumstances where the Kinsey rule has existed for thirty years, and the time has come to change it. A moderate and gradual change is consistent with the conflicting needs and with the approach that supports moderate changes in the hope of benefiting from the experience that is accumulated, and it is better than the extreme sweeping approach that seeks to cancel existing arrangements in their entirety in order to remove their disadvantages, while giving up their advantages entirely, without any possibility of foreseeing what will be the cost of the change.

Only recently this court held in Yissacharov v. Chief Military Prosecutor [37] that the court should be left with discretion to decide in which circumstances evidence that was obtained unlawfully should be inadmissible, in view of the circumstances of the case and the criteria outlined in this regard. In that case the court (per Justice Beinisch) said the following:

‘… giving discretion to the court as aforesaid is consistent with the general theory of checks and balances that characterizes our legal system and it is consistent with the values of the State of Israel as a Jewish and democratic state… Moreover, the adoption of a relative doctrine that gives the court discretion on the question of the admissibility of illegally obtained evidence is consistent with our duty to act moderately and carefully when changing a case law rule that has existed in the matter under discussion until now…’ (ibid. [37], at para. 62).

I think that these remarks are also remarkably appropriate in the case before us.

20. It is to be hoped that the efforts in the field of judicial administration that are intended to make the criminal trial more efficient and adapt the tools required for the changing needs in this field will bear fruit and will also have an effect on the complex issue before us. After all, the more efficient the criminal trial is, the more the Kinsey rule will be able to realize its benefits in a natural manner without its disadvantages causing any harm, so that it will be possible for the witness-accomplice to testify after his trial has ended without this requiring any special delay in the trial of the defendant and without this causing a disproportionate violation of the personal liberty of the defendant who is waiting for his trial to end while he is still being held under arrest.

Conclusion

21. It is the duty of a civilized society to strike a balance between protecting the rights of the defendant, supporting the war against crime, discharging its duty to the victims of crime, preventing the conviction of innocent persons and ensuring that the guilty are not acquitted (per Justice Strasberg-Cohen in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 761). This gives rise to a need to strike a balance between discovering the truth and the effectiveness of the criminal trial, to protect the right of the defendant not to be held under arrest for a prolonged period and to reconcile the fear of a miscarriage of justice and the danger of causing undue hardship to the defendant. This balance is not simple. It is not achieved by a radical solution but by a balanced formula that gives proper weight to the competing values and interests.

22. If my opinion is accepted, we will return the case to the Beer-Sheba District Court, so that it may decide whether to hear the testimony of the witness-accomplice Yaron Sanker (the fifth respondent) in the separate trial of the defendants (the respondents) before his own case is decided, or whether in this case there are special reasons, according to the criteria proposed in this opinion, that justify postponing Sanker’s testimony until his trial has ended.

 

 

President D. Beinisch

1.             We have before us a petition by the state to cancel the rule known as the Kinsey rule, which prevents an accomplice in crime from testifying as a prosecution witness in the trial of his partner who has been indicted separately, as long as the witness’s own trial is still pending.

My colleagues Justices E. Levy and A. Procaccia have given us comprehensive and profound opinions, each of which, in its own way, discusses the purpose of the rule, the reasons underlying it and the rights, interests and values that are the focus of the decision as to whether the Kinsey rule should remain the law.

The distance between my colleagues’ approaches is not so great and wide as it seems at first glance. My two colleagues agree that the Kinsey rule is a procedural rule, a rule of practice that was formulated in a judgment that was given thirty years ago and has become an all-encompassing and rigid rule. They both are of the opinion that the rule in its all-encompassing scope is no longer suited to present conditions and the legal reality in which we live. The rule today constitutes an obstacle to holding effective criminal trials. My colleagues agree, therefore, that the time has come to depart from the all-encompassing rule and to determine a new point of balance between the competing values that lie at the heart of the Kinsey rule; they also agree that the rule as it is interpreted today can no longer stand. The main argument is whether the trial court should be allowed discretion as to whether it should have a possibility of not hearing the testimony of a witness who is himself standing trial for the same incident until his trial has ended. Should the court be entitled, in appropriate circumstances, to postpone the continued hearing of the criminal trial merely in order to wait until the witness’s trial has ended?

In the opinion of my colleague Justice Levy, cancellation of the rule leads to the conclusion that today the court has no reason to postpone a trial simply because the prosecution wishes to call an accomplice, whose trial has not ended, to testify. By contrast, Justice Procaccia’s approach sees a need for a selective cancellation of the Kinsey rule, ‘which will leave the trial court judicial discretion, in exceptional cases, to order the hearing of the witness-accomplice’s testimony only after his trial has ended’ (at para. 18 of her opinion). In her opinion she says that the overall balance justifies the cancellation of the rule, while leaving the trial court discretion to apply it ‘in special circumstances and for special reasons’ (ibid.).

2.             In the disagreement between my colleagues, my path is an intermediate path. I accept the opinion of Justice Procaccia that the court trying a criminal case should not be deprived of the discretion to postpone the hearing, and I also think that there may be rare cases where the reason for a postponement will be the need to wait for the witness-accomplice’s trial to end. It would appear that, according to the approach of Justice Levy, he too will agree that the court should not be deprived of all the discretion that it has to conduct a trial, but he is concerned that any loophole that is left will allow the Kinsey rule to continue in full force. I will confess that I too fear that perhaps the proposal put forward by my colleague Justice Procaccia with regard to the nature and scope of the circumstances and situations in which there will be a justification for waiting for the witness’s trial to end is capable of undermining the trend of cancelling the Kinsey rule and it may gradually lead to this rule remaining unchanged.

I do not belittle the rationale for the Kinsey rule and especially the proper purpose of discovering the truth in criminal trials, which Justice Procaccia discussed extensively in her opinion. But the aforesaid purpose is in any case no longer protected by the Kinsey rule. This is because of the difficult situation with which the courts are contending today when they conduct criminal proceedings and the effort required to achieve the goal of discovering the truth. Serious crime has become widespread in Israel, and with it the phenomenon of intimidating witnesses to prevent them testifying. In order to overcome witnesses’ fears and the pressures that have been and are being brought to bear on prosecution witnesses in order to deter them from testifying truthfully, the 1979 amendment to the Evidence Ordinance was enacted. Within the scope of this amendment, s. 10A was added. According to this, it is possible to prefer, in certain circumstances, the statement of the witness during his interrogation by the police to his testimony in court. From that time until the present, the reluctance of witnesses, when they are testifying in court, to repeat their original story that they gave in their police interrogation has increased. This phenomenon is common with the testimony of accomplices in crime, both before their trial has ended and after their trial has ended. The result is that in a large majority of cases, when accomplices in crime are called to testify for the prosecution, their testimony does not coincide with the story that they told during their interrogation; the prosecution requests that the court prefer the incriminating version told to the police, pursuant to the aforesaid s. 10A, and the court is compelled to arrive at the truth on the basis of a version of events that was given before the trial of the accomplice in crime took place. It is self-evident that if and in so far as the version of events given by the witness before he is tried is self-serving, this will have an effect on the amount of supporting evidence that is required in order to assist the court in arriving at the truth.

Moreover, our adversarial system does not usually allow the court to evaluate in advance the importance of the testimony to the trial, and in particular it does not give him tools to determine whether the witness will give incriminating testimony when he is called to the witness stand. As I have said, the likelihood that the witness will testify as the prosecution expect from the police interrogation is usually small. In most cases, assessing whether the witness will indeed testify in accordance with his incriminating statement can only be assessed by the parties who are familiar with the interrogation material, and not by the court which has not yet heard the evidence.

The test that my colleague proposes, whereby obtaining the consent of the defendant to suffer the consequences of the prolonging of his period of arrest and the violation of his right to liberty in order to wait until the witness’s trial has ended, cannot serve as a justification for postponing a trial. Postponing a trial in circumstances where the defendant is being held under arrest for a prolonged period certainly violates the rights of the defendant, which he may waive for his own reasons. But prolonging the trial also undermines the effectiveness of the criminal trial and the public interest that the criminal trial will provide a proper means of law enforcement. Furthermore, the serious nature of criminal cases concerning organized crime and the most serious offences in the statute books, for which the sentences are heavy, increases the interest that the defendant has to prevent the prosecution witness from testifying; prolonging the proceedings may encourage unlawful acts to the point that there may be grounds to fear for the life of the witness and the possibility of conducting proper trials.

3.             Because of the small benefit to discovering the truth that may arise from postponing the trial, and because of the concern that allowing broad judicial discretion in this matter may reinstate the Kinsey rule, I would not allow the trial court to have such a broad basis for postponing the trial until the end of the witness-accomplice’s trial, as my colleague Justice Procaccia proposes. But in view of my outlook that the court should always have discretion with regard to the manner of conducting the proceedings before it, I believe that the court should be entitled to decide in certain circumstances, which should be very exceptional and extreme, that it is justified to wait until the end of the separate trial of an accomplice in crime before he is called to the witness stand. Thus, for example, in those cases where the trial of the witness is being conducted efficiently and is almost finished, and the parties have real grounds to believe that the witness does indeed intend to testify as a prosecution witness in accordance with his incriminating statement. The decision on this issue in these exceptional circumstances is to be made by the court. But it should be made only after the parties to the trial have obtained the relevant information and made an informed and specific assessment of the position. In this matter, the prosecution position should be taken into account when it applies to summon the witness to testify only after the trial has ended in order to allay the concern of self-serving evidence, and weight should also be given to the consent of the defendant to extend his period of arrest for this purpose until the trial ends. The court should give reasons for such an exceptional postponement of the trial.

4.             In concluding my remarks, I shall say a few words concerning my position on the question of the privilege given to a witness who is required to testify before his trial has ended, which was addressed at length by my colleague Justice Levy. My two colleagues discussed how in other legal systems — in the United States and Canada — the reason for not calling an accomplice to testify when his trial has not ended is not based on the defendant’s right to a fair trial but on the witness’s right not to incriminate himself. In our legal system, the provisions of s. 47(b) of the Evidence Ordinance [New Version] provides a solution to the protection required by a witness from self-incrimination when giving the testimony. The question of the scope of the privilege given to evidence that arises from the testimony of the witness who may incriminate himself is complex and is not required in the petition before us. The case before us focused on other questions and this issue was not addressed sufficiently. The approach of my colleague Justice Levy gives a broad interpretation to the privilege in the aforesaid s. 47(b), which goes beyond the evidence that arises directly from the testimony of the witness and includes also anything that arises indirectly from it. I would point out that I doubt whether this interpretation is consistent with our legal system in so far as the case law doctrine of declaring evidence inadmissible is concerned. This is an issue that requires separate consideration in order to find the proper balancing point between the need to protect the witness and the need to discover the truth in court proceedings, and it would be best that we leave it to a later date. In any case, it is clear that the prosecution may in a specific case declare that it intends to grant a witness a broader scope of privilege than what is granted by law, whatever the interpretation of the latter may be.

I will therefore summarize my position by saying that the time has come to cancel the rule of practice formulated in the Kinsey rule. The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state, in accordance with what I said in para. 3 above.

Therefore I agree with the opinion of Justice E.E. Levy that an absolute order should be made to the effect that the decision of the Beer-Sheba District Court is set aside.

 

 

President Emeritus A. Barak

I have carefully read the comprehensive and profound opinions of my colleagues Justice E.E. Levy and Justice A. Procaccia. My colleagues’ opinions agree more than they differ. With regard to the points on which my colleagues differ, I agree with the intermediate position, as it is expressed in the opinion of my colleague President D. Beinisch.

 

 

Vice-President E. Rivlin

As stated in the opinions of President D. Beinisch and President Emeritus A. Barak, the opinions of my colleagues Justice A. Procaccia and Justice E.E. Levy agree more than they differ. They both agree that the Kinsey rule is not longer suited to the legal reality of today and that it often stands in the way of conducting a proper criminal trial, to such an extent that the sweeping rule should be abandoned. The difference of opinion concerns the degree of discretion given to the trial court to continue to apply the Kinsey rule in special circumstances. On this question I agree with the intermediate position as expressed in the opinion of my colleague Justice D. Beinisch.

 

 

Justice A. Grunis

1.             I agree with the opinion of my colleague Justice E.E. Levy. I will add a brief comment on the tools that are intended to allay the concern of erroneous convictions based on the testimony of an accomplice and to prevent the witness-accomplice suffering as a result of what he says in his testimony.

2.             There is no doubt that there is a real concern that the testimony of the witness-accomplice will be self-serving or even false if he is required to testify before his trial ends. As my colleague Justice E.E. Levy says, in many cases where the witness testifies only when his trial has ended, the prosecution has no choice but to make use of his statement to the police, under s. 10A of the Evidence Ordinance. It may be assumed that this will also happen if the accomplice is compelled to testify before his trial has ended. Therefore, both in the case of using a statement made to the police and also when the Kinsey rule is cancelled, the additional evidence required is of very great importance. It is well known that it is not possible to convict a defendant on the basis of the sole testimony of his accomplice unless there is additional supporting evidence (s. 54A of the Evidence Ordinance). In the past, until 1982, additional evidence of greater weight was required, namely corroboration. I wonder whether the time has not come to return this requirement to the statute books. Even if this requirement is not reintroduced, we should insist that the additional evidence that constitutes ‘support’ does not become negligible, marginal and insignificant. In my opinion, there is a persistent erosion in the interpretation of this requirement, and perhaps even more in its concrete application. My colleague Justice Levy rightly said that the court may ‘determine that a high level of support is required’ and that ‘it is possible that the difference between the requirement of support and the requirement of corroboration will not be so great’ (para. 28 of his opinion). My agreement with the cancellation of the Kinsey rule is based, therefore, on the assumption that the courts will require the existence of considerable ‘support,’ for otherwise the concern that defendants will be convicted erroneously will increase. In other words, we should support a more substantial requirement of ‘support.’

The additional tool to which I refer, following the remarks of my colleague Justice E.E. Levy, is the privilege given to the statements made by the witness-accomplice, so that they may not be used against him (pursuant to the provisions of s. 47(b) of the Evidence Ordinance). Just as it is essential to ensure that the additional supporting evidence which is a condition for a conviction is not insignificant, so too it is essential to adopt a strict approach towards the prosecution authorities, in order to ensure that they do not make use of the statements of the witness-accomplice in his trial.

 

 

Justice M. Naor

1.             I agree with the opinion of my colleague, President D. Beinisch.

2.             The Kinsey rule ‘places obstacles in the path of criminal trials’ (Turk v. Attorney-General [22], at p. 672). It is frequently abused. Today, in view of the significant changes that have occurred over the years in the manner in which criminal trials are conducted and in view of the judicial experience that has been acquired from implementing it, the conclusion is that the Kinsey rule causes more harm than good, and it should be cancelled. But cancelling the rule does not deny the trial court discretion to order the postponement of the testimony of the witness-accomplice until after the witness’s own trial has ended. The question is how the discretion should be exercised.

3.             Like my colleague President Beinisch, I am of the opinion that only in very exceptional and extreme cases should the court decide, for reasons that it should state, that there is a justification for waiting until the end of the accomplice’s separate trial before he is called to testify.

4.             The Kinsey rule is applied when a witness, who is being tried separately (the witness-accomplice), is called to testify for the prosecution in the trial of a defendant (the defendant). The reason why the witness-accomplice is included among the prosecution witnesses in the defendant’s trial is that the witness-accomplice made a statement to the police that incriminates the defendant of the offences attributed to him or that contains certain facts that are mentioned in the indictment. Sometimes the witness-accomplice incriminates both himself and the defendant, whereas in other cases he only incriminates the defendant.

5.             There are two common scenarios (but these are not the only ones) where the question of postponing the timing of the witness-accomplice’s testimony arises. The first scenario is where the witness-accomplice adheres in his own trial to the statement he made to the police. The second scenario is where the witness-accomplice goes back on the incriminating statement he made to the police both in his own trial and in the defendant’s trial. Often it is possible to ‘detect’ at a relatively early stage what direction the witness-accomplice will choose and what his intentions are, in view of how he pleads to the charges or other steps that he takes in his own trial. When the witness-accomplice has also incriminated himself and he adheres in his own trial to the statement that he gave to the police and pleads guilty, all that remains is to wait for him to be sentenced at an early date. By contrast, when the witness-accomplice in his own trial retracts his statement to the police, this is a possible indication that the defendant’s trial will be drawn out if it is postponed until the witness’s trial ends. If there is a reasonable expectation, taking into account all of the circumstances of the case, that the witness-accomplice’s trial will end within a short time, the court will be inclined to postpone the defendant’s trial (or to hear the other witnesses in the interim). But if the likelihood is that the witness-accomplice’s trial will be drawn out, there is no reason to postpone the hearing of the defendant’s trial. The trial courts have sought and found various ways of ‘overcoming’ the Kinsey rule and preventing a delay in hearing trials. One of the ways is to allow the witness-accomplice to be called to testify (where there is an expectation that he will not incriminate the defendant) while giving the parties an opportunity to invoke the Kinsey rule during the testimony, when necessary. Judicial experience shows that in many cases it transpires, in this way, that the rationale of the Kinsey rule has no application.

6.             In my opinion there is no need at this time to determine rigid guidelines for the exceptional and extreme cases in which the court will decide to exercise its discretion to postpone the hearing of the witness-accomplice’s testimony until his own trial has ended. This is a matter for the discretion of the trial judge, who should make his decision in a rational manner. He should hear the parties’ assessments with regard to the witness-accomplice’s trial and rely upon his expertise as a judge.

7.             In this spirit I agree with the fourth of the special reasons listed by my colleague Justice Procaccia as justifying in her opinion the postponement of the hearing of the witness-accomplice’s testimony (para. 18 of her opinion). But the three other reasons are in my opinion too broad. They are inconsistent with the clear message that arises from our decision today with regard to the very narrow scope of the discretion for postponing the hearing of the witness-accomplice’s testimony. As my colleague the president says, they are ‘capable of undermining the trend of cancelling the Kinsey rule’ (at para. 2 of her opinion). I particularly disagree with the third reason, in which the defendant requests that the testimony of the witness-accomplice is postponed on the understanding that there will be an additional extension of the period during which he is held under arrest. I think that this reason gives the defendant control over how his trial is conducted. This is an undesirable situation. In this matter too I agree with the remarks of my colleague the president, that this reason ‘cannot serve as a justification for postponing a trial,’ since sometimes it ‘may encourage unlawful acts to the point that there may be grounds to fear for the life of the witness’ (ibid.).

8.             I therefore agree, as I have said, with the intermediate position of the president that ‘The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state’ (at para. 4 of her opinion).

9.             I would also propose, like the president, that the question of the scope of the privilege against self-incrimination given to a witness who is required to testify before his trial ends is left undecided. The position of the Israeli legal system until now, in related contexts, has not been as my colleague Justice Levy proposes in our case (see Yefet v. State of Israel [54], at pp. 291-316 per Justice D. Levin and at pp. 462-464 per Justice Kedmi). In my opinion uniform guidelines should be established in this matter, but in the petition before us a decision on this issue is not required.

10. I would also propose that the question of the amount of the additional evidence that is required in our case is also left undecided.

11. To sum up, in this judgment we are freeing the trial courts from the shackles of the Kinsey rule in conducting criminal trials. The rule is cancelled but the judicial discretion remains. But the margin of discretion to postpone the testimony of the witness-accomplice is narrow, so that ultimately I agree as I have said with the position of President Beinisch. There is no need at this time to determine strict guidelines with regard to the exceptional and extreme circumstances in which the discretion should be exercised. For the moment it is sufficient that I say that the more likely it is that the witness-accomplice’s trial will end within a short time, the greater the inclination to postpone the hearing of the defendant’s trial.

 

 

Petition granted.

16 Tishrei 5767.

8 October 2006.

 

 

CrimA 5121/98

Private (res.) Raphael Yissacharov

v.

1.            Chief Military Prosecutor

2.            Attorney-General

3.            National Public Defender’s Office

4.            Israel Bar Association

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[4 May 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin and

Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis,

M. Naor, S. Joubran

 

Appeal of the judgment of the Appeals Court Martial (General I. Schiff, Brigadier-General M. Finkelstein, Colonel (res.) Y. Kedmi) on 13 May 1998 in case no. 139/97/9.

 

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should not be admissible in evidence, because it was made in consequence of the interrogator failing to advise him of his right to consult a lawyer. Under Israeli law there was no statutory or case law precedent for the exclusion of evidence because of the illegal method of obtaining it, but the appellant argued that the court should adopt such a doctrine, in the spirit of the Basic Law: Human Dignity and Liberty, which was enacted in 1992.

 

Held: (Majority opinion — Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran) In view of the normative change in the Israeli legal system introduced by the Basic Law: Human Dignity and Liberty, and in the absence of legislation on this issue, the time has come to adopt a case law doctrine of inadmissibility for illegally obtained evidence. The appropriate doctrine for the Israeli legal system to adopt is not an absolute doctrine, but a relative doctrine of inadmissibility, which allows the court to exclude illegally obtained evidence at its discretion.

The criterion for excluding illegally obtained evidence is that the evidence should be excluded if admitting it would substantially violate the right of the accused to a fair trial, considering the circumstances of each case on its merits. This doctrine is therefore a ‘preventative’ one, rather than a ‘remedial’ one. Its aim is to prevent a violation of the right of the accused to a fair trial, rather than to educate and deter the police authorities from future violations of the law.

Factors that should be taken into account when the court exercises its discretion are the character and seriousness of the illegality that was involved in obtaining the evidence, the seriousness of the offence, the degree to which the improper investigation method affected the evidence that was obtained and the social damage and social benefit involved in excluding the evidence.

The case law doctrine of the inadmissibility of illegally obtained evidence is a general one and it applies to all types of evidence, including defendants’ confessions, notwithstanding the statutory arrangement regarding defendants’ confessions in s. 12 of the Evidence Ordinance [New Version].

In the specific case of the appellant, the failure to inform him of his right to consult a lawyer was intentional, and this was a significant factor in reaching the decision to exclude the confessions he made in the interrogation.

(Minority opinion — Justice A. Grunis) It is questionable whether a broad doctrine of the inadmissibility of illegally obtained evidence should be adopted in case law rather than in legislation.

In the specific case of the appellant, in view of the fact that the police interrogator did advise the appellant of his right to remain silent, the failure to advise him of his right to consult a lawyer should not be sufficient to justify an exclusion of the confessions. The significance of the intentional nature of the failure to advise the appellant of his right to consult a lawyer was questionable, both because the doctrine being adopted does not have an educational-deterrent purpose, and because it is hard to conceive of such an omission by a professional interrogator being unintentional.

 

Appeal allowed, by majority opinion (Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran), Justice Grunis dissenting.

 

 

 

Legislation cited:

Basic Law: Freedom of Occupation, s. 10.

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 5, 9, 10, 11.

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 28(a), 32, 32-36, 32(a) 34(a), 34(b), 34(c).

Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, s. 16(b).

Criminal Procedure Law (Amendment no. 15), 5741-1981.

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 29.

Dangerous Drugs Ordinance [New Version], 5733-1973, ss. 7(a), 7(c).

Eavesdropping Law, 5739-1979, s. 13.

Evidence Ordinance, s. 9.

Evidence Ordinance [New Version], 5731-1971, s. 12.

Military Jurisdiction Law, 5715-1955, ss. 227A, 227A(6) 227A1, 267, 316, 440I, 476, 477, 478.

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968.

Protection of Privacy Law, 5741-1981, ss. 2, 32.

Public Defender’s Office Law, 5756-1995, ss. 18, 19, 19(a).

Rights of Victims of Crime, 5761-2001, s. 1.

 

Israeli Supreme Court cases cited:

[1]          CrimFH 9384/01 Al Nisasra v. Israel Bar Association (not yet reported).

[2]          CA 10425/03 State of Israel v. Sita Shasha (not yet reported).

[3]          HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [2003] IsrSC 57(6) 285 (decision of 3 September 2003).

[4]          RT 7929/96 Kuzali v. State of Israel [1999] IsrSC 53(1) 529.

[5]          HCJ 249/82 Vaknin v. Appeals Court Martial [1983] IsrSC 37(2) 393.

[6]          CrimA 307/60 Yassin v. Attorney-General [1963] IsrSC 17(3) 1541.

[7]          CrimA 96/66 Tau v. Attorney-General [1966] IsrSC 20(2) 539.

[8]          CrimA 533/82 Zakkai v. State of Israel [1984] IsrSC 38(3) 57.

[9]          CrimA 334/86 Sabah v. State of Israel [1990] IsrSC 44(3) 857.

[10]        CrimA 747/86 Eisenman v. State of Israel [1988] IsrSC 42(3) 447.

[11]        HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 848.

[12]        HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 746.

[13]        LCA 5381/91 Hogla v. Ariel [1992] IsrSC 46(3) 378.

[14]        CrimA 1382/99 Balhanis v. State of Israel (unreported).

 

 

[15]        LCrimA 3445/01 Almaliah v. State of Israel [2002] IsrSC 56(2) 865.

[16]        LCrimA 8600/03 State of Israel v. Sharon [2004] IsrSC 58(1) 748.

[17]        CrimA 648/77 Kariv v. State of Israel [1978] IsrSC 32(2) 729.

[18]        CrimA 6613/99 Smirk v. State of Israel [1998] IsrSC 56(3) 529.

[19]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[20]        CrimA 69/53 Sich v. Attorney-General [1953] IsrSC 7(2) 801.

[21]        CrimA 7335/05 Public Defender’s Office, Nazareth District v. State of Israel (not yet reported).

[22]        HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[23]        HCJ 6302/92 Rumhiya v. Israel Police [1993] IsrSC 47(1) 209.

[24]        CrimApp 5136/98 Manbar v. State of Israel (unreported).

[25]        CrimA 5614/92 State of Israel v. Mesika [1995] IsrSC 49(2) 669.

[26]        HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998 9] IsrLR 567.

[27]        CrimA 636/77 Levy v. State of Israel [1978] IsrSC 32(3) 768.

[28]        CrimA 4427/95 A v. State of Israel [1997] IsrSC 51(2) 557.

[29]        CrimFH 4342/97 El Abid v. State of Israel [1997] IsrSC 51(1) 736.

[30]        FH 3081/91 Kozali v. State of Israel [1991] IsrSC 45(4) 441.

[31]        CrimA 2/48 Al-Lodj v. Attorney-General [1948] IsrSC 1 92.

[32]        CrimA 242/63 Kariti v. Attorney-General [1964] IsrSC 18(3) 477; IsrSJ 5 203.

[33]        CrimA 270/65 Kasey v. Attorney-General [1965] IsrSC 19(3) 561.

[34]        CrimA 347/75 Hirsch v. State of Israel [1976] IsrSC 30(3) 197.

[35]        CrimA 369/78 Abu-Madijem v. State of Israel [1979] IsrSC 33(3) 376.

[36]        CrimA 115/82 Muadi v. State of Israel [1984] IsrSC 38(1) 197.

[37]        CrimA 183/78 Abu-Midjem v. State of Israel [1980] IsrSC 34(4) 533.

[38]        CrimA 154/85 Avroshami v. State of Israel [1987] IsrSC 41(1) 387.

[39]        LCrimA 3268/02 Kozali v. State of Israel (not yet reported).

[40]        CrimA 161/77 Zohar v. State of Israel [1978] IsrSC 32(1) 326.

[41]        CrimA 450/82 Abu-Ayin Tripi v. State of Israel [1983] IsrSC 37(2) 589.

[42]        CrimA 6021/95 Gomez-Cardozo v. State of Israel [1997] IsrSC 51(3) 769.

[43]        CrimA 277/78 State of Israel v. Tuvyahu [1979] IsrSC 33(1) 297.

[44]        CrimA 611/80 Matosian v. State of Israel [1981] IsrSC 35(4) 85.

[45]        CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[46]        CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

 

 

[47]        HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[48]        CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [1991] IsrSC 45(4) 529.

[49]        HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[50]        CrimA 3632/92 Gabbai v. State of Israel [1992] IsrSC 46(4) 487.

[51]        CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[52]        CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998-9] IsrLR 409.

[53]        CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

[54]        HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [2004] IsrSC 58(6) 481.

[55]        CrimApp 92/00 A v. State of Israel [2000] IsrSC 54(4) 240.

[56]        CrimA 5825/97 Shalom v. State of Israel [2001] IsrSC 55(2) 933.

[57]        CrimA 5203/98 Hasson v. State of Israel [2002] IsrSC 56(3) 274.

[58]        CrimA 480/85 Kurtam v. State of Israel [1986] IsrSC 40(3) 673.

[59]        HCJ 3815/90 Gilat v. Minister of Police [1991] IsrSC 45(3) 414.

[60]        CrimA 1302/92 State of Israel v. Nahmias [1995] IsrSC 49(3) 309.

[61]        CrimA 476/79 Boulos v. State of Israel [1981] IsrSC 35(1) 785.

[62]        CrimA 16/82 Malka v. State of Israel [1982] IsrSC 36(4) 309.

[63]        FH 9/83 Appeals Court Martial v. Vaknin [1988] IsrSC 42(3) 837.

[64]        CrimA 951/80 Kanir v. State of Israel [1981] IsrSC 35(3) 505.

[65]        CrimFH 4390/91 State of Israel v. Haj Yihya [1993] IsrSC 47(3) 661.

[66]        CrimA 6147/92 State of Israel v. Cohen [1994] IsrSC 48(1) 62.

[67]        FH 23/85 State of Israel v. Tubul [1988] IsrSC 42(4) 309.

[68]        CA 703/86 Bernstein v. Attorney-General [1989] IsrSC 43(4) 529.

[69]        CA 2515/94 Levy v. Haifa Municipality [1996] IsrSC 50(1) 723.

[70]        HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [1997] IsrSC 51(3) 750.

[71]        CrimA 260/78 Saliman v. Attorney-General [1979] IsrSC 33(2) 204.

[72]        CrimA 559/77 Meiri v. State of Israel [1978] IsrSC 32(2) 180.

[73]        CrimA 2286/91 State of Israel v. Eiloz [1991] IsrSC 45(4) 289.

[74]        CrimA 639/79 Aflalo v. State of Israel [1980] IsrSC 34(3) 561.

[75]        CA 1354/92 Attorney-General v. A [1994] IsrSC 48(1) 711.

[76]        CA 61/84 Biazi v. Levy [1988] IsrSC 42(1) 446.

[77]        CrimA 2910/94 Yefet v. State of Israel [1996] IsrSC 50(2) 221.

 

 

[78]        CrimA 1668/98 Attorney-General v. President of Jerusalem District Court [2002] IsrSC 56(1) 625.

[79]        CrimA 2180/02 Kassem v. State of Israel [2003] IsrSC 57(1) 642.

[80]        CrimA 9970/03 Deri v. State of Israel (not yet reported).

[81]        CrimApp 6689/01 Migdalani v. State of Israel [2002] IsrSC 56(1) 173.

[82]        HCJ 266/05 Pilant v. Gen. Efroni (not yet reported).

[83]        CLA 1412/94 Hadassah Medical Organization v. Gilad [1995] IsrSC 49(2) 516.

[84]        MApp 298/86 Citrin v. Tel-Aviv District Disciplinary Tribunal of Bar Association [1987] IsrSC 41(2) 337.

[85]        HCJ 547/84 HaEmek Poultry Registered Agricultural Cooperative Society v. Ramat-Yishai Local Council [1986] IsrSC 40(1) 113.

[86]        CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[87]        HCJ 3992/04 Maimon-Cohen v. Minister of Foreign Affairs [2005] IsrSC 59(1) 49.

[88]        RT 3032/99 Baranes v. State of Israel [2002] IsrSC 56(3) 354.

[89]        RT 8483/00 Deri v. State of Israel [2003] IsrSC 57(4) 253.

[90]        CrimA 1741/99 Yosef v. State of Israel [1999] IsrSC 53(4) 750.

[91]        HCJ 6972/96 Association for Civil Rights in Israel v. Attorney-General [1997] IsrSC 51(2) 757.

[92]        HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[93]        CrimFH 3750/94 A v. State of Israel [1994] IsrSC 48(4) 621.

[94]        CrimA 1/48 Silvester v. Attorney-General [1948] IsrSC 1 5.

[95]        CrimFH 4603/97 Meshulam v. State of Israel [1997] IsrSC 51(3) 160.

[96]        LCA 8925/04 Solel Boneh Building and Infrastructure Ltd v. Estate of Alhamid [2006] (1) IsrLR שגיאה! הסימניה אינה מוגדרת..

[97]        RT 8390/01 Axelrod v. State of Israel (not yet reported).

[98]        CrimA 242/85 Hazan v. State of Israel [1987] IsrSC 41(2) 512.

[99]        HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[100]      CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[101]      LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

 

Israeli District Court cases cited:

[102]      CrimC (Naz) 511/97 State of Israel v. Odeh (unreported).

[103]      CrimC (TA) 4598/01 State of Israel v. Ben-Shushan (unreported).

 

 

 

American cases cited:

[104]      Miranda v. Arizona, 384 U.S. 436 (1966).

[105]      Dickerson v. United States, 530 U.S. 428 (2000).

 

Australian cases cited:

[106]      Bunning v. Cross (1978) 141 C.L.R. 54.

 

Canadian cases cited:

[107]      R. v. Oickle [2000] 2 S.C.R. 3.

[108]      R. v. Collins [1987] 1 S.C.R. 265.

 

English cases cited:

[109]      Ibrahim v. R. [1914] A.C. 599.

[110]      Kuruma v. R. [1955] A.C. 197.

 

Jewish law sources cited:

[111]      Genesis 19, 9.

[112]      Maimonides, Sefer HaMitzvot, Prohibitions, 290.

 

For the appellant — E. Zohar, R. Balchar, A. Crispin.

For the first respondent — E. Ron.

For the second respondent — Y. Resnick.

For the third respondent — K. Mann, A. Kobu.

For the fourth respondent — A. Feldman, M. Sefarad.

 

 

JUDGMENT

 

 

Justice D. Beinisch

Before us is an appeal on the judgment of the Appeals Court Martial after it gave leave to appeal to this court. At the heart of the appeal lies the question of the effect of not giving the statutory notice concerning the right to consult a lawyer on the admissibility of a confession made during interrogation. This question touches upon two fundamental issues that will be the focus of our deliberations: first, whether in the interpretive spirit of the Basic Law: Human Dignity and Liberty (hereafter: ‘the Basic Law’) it should be held that not giving the statutory notice concerning the right to consult a lawyer necessarily makes a confession of an accused under s. 12 of the Evidence Ordinance [New Version], 5731-1971 (hereafter: ‘the Evidence Ordinance’) inadmissible. This question concerns the interpretation of the provisions of the aforesaid s. 12, which makes the admissibility of a confession conditional upon its being made ‘freely and willingly.’ Second, is it possible to declare a confession as aforesaid inadmissible by virtue of a case law doctrine that illegally obtained evidence is inadmissible. This argument raises a fundamental question, which is, in essence, whether this court should adopt a general case law doctrine that illegally obtained evidence is inadmissible, and if so, what should be the nature and framework of the doctrine.

Before I turn to discuss the aforesaid questions, let us consider the main facts and proceedings that are relevant to this appeal and the arguments of the parties as presented in their written summations.

The main facts and the sequence of proceedings in the case

1.            On 17 December 1996, at around midnight, the appellant was admitted to military imprisonment camp 396 (hereafter: ‘Prison 6’) for being absent from the army without leave. As he was being admitted into the prison, the appellant was asked to undress, and when he removed his underpants, a small package wrapped in paper fell out of them. At first, the appellant tried to hide the package under his foot, but immediately thereafter he said: ‘It is grass, I can explain.’ An officer from the prison staff reported the incident to the investigative military police base in Haifa at 2:30 a.m.. The report was received by the interrogator on duty at that time, Corporal Yonatan Ophir (hereafter: ‘Corporal Ophir’ or ‘the interrogations officer’). The next day, on 18 December 1996, at 4:40 p.m., Corporal Ophir arrived at Prison 6 in order to interrogate the appellant. Before he met the appellant, Corporal Ophir received into his custody the package that had fallen from the appellant’s underpants, and also heard from the commanding officer of the prison wing where the appellant was imprisoned that the appellant confessed to him the previous use that he had made of the drug, even though it was not clear from the appellant’s statement at that time whether the aforesaid use had occurred before he was recruited into the IDF or after his recruitment.

At 4:45 p.m., Corporal Ophir began to interrogate the appellant, and after approximately twenty minutes, he began to write down his statement. Before taking the statement, Corporal Ophir told the appellant the following: ‘I am about to take your statement in circumstances where you are suspected of using and possessing dangerous drugs. Do you wish to say something with regard to the aforesaid offence? You are not obliged to say anything if you do not wish to do so, but anything that you will say will be written down and may be used as legal evidence.’ At the beginning of his statement, the appellant admitted that he smoked a drug of the cannabis type (‘grass’) when he was a soldier, during the period when he was absent without leave from the army. At 5:30 p.m., before he had finished taking the statement, Corporal Ophir left the interrogation room and spoke on the telephone with the military police commander in Haifa, Captain Nir Golan, who ordered him to arrest the appellant. At the end of the aforesaid telephone conversation, Corporal Ophir returned to the interrogation room and continued to take the appellant’s statement. The appellant gave details to the military interrogator of the instances when he made use of a cannabis-type drug while he was a soldier, and he also replied to the interrogator’s questions with regard to possession of the drug that was found in his possession when he was admitted to the prison. At 6:27 p.m. Corporal Ophir finished taking the appellant’s statement. At 6:35 p.m. Corporal Ophir ordered the appellant to provide a urine sample, and the appellant complied. Only at 6:45 p.m., approximately a quarter of hour after he finished taking the first statement, did Corporal Ophir tell the appellant that he was under arrest and that he had the right to consult a lawyer.

The next day, on 19 December 1996, the appellant spoke on the telephone with the defence attorney on duty. On the following day, Corporal Ophir interrogated the appellant a second time and took from him a second statement (prosecution exhibit 5). When Corporal Ophir began to take the statement, the appellant said: ‘I do not wish to add anything; I have nothing to add.’ Later in the statement, the appellant answered the interrogator’s questions with regard to possession of the drug that was found in his possession when he was admitted to Prison 6.

2.            On 6 January 1997, an indictment was filed against the appellant in the District Court Martial for the General Staff District (hereafter: ‘the court martial’). The first three paragraphs of the indictment charged the appellant with offences of using a dangerous drug under ss. 7(a) and (c) of the Dangerous Drugs Ordinance [New Version], 5733-1973 (hereafter: ‘the Dangerous Drugs Ordinance’). The fourth paragraph of the indictment charged the appellant with an offence of possessing a dangerous drug under the same sections of the Dangerous Drugs Ordinance.

Before the court martial, the appellant pleaded guilty to the fourth paragraph of the indictment which concerned the offence of possessing a dangerous drug, but he pleaded not guilty to the first three paragraphs of the indictment that concerned offences of using a dangerous drug. In order to prove the aforesaid three indictments, the prosecution sought to rely on the first statement that was taken from the appellant in his interrogation, in which he confessed that he had made use of a dangerous drug on several occasions when he was a soldier (hereafter: ‘the confession’). In so far as this confession was concerned, there was no dispute before the court martial with regard to the following matters: first, the prosecution confirmed to the court martial that in the circumstances of the case the military interrogator acted illegally when he took the appellant’s statement without first informing him that he was under arrest and that he had the right to consult a lawyer. We shall address this issue extensively later. Second, counsel for the appellant confirmed that his client’s confession before the military interrogator was given without any external pressure being exerted on the appellant in the interrogation in a manner that would detract from the free and willing nature of the confession that he made. Counsel for the defence also agreed that if it was determined that the confession made by the appellant was admissible and it was given full weight, it would be sufficient to prove his client’s guilt with regard to the offences with which he was charged. Counsel for the defence also did not dispute that the evidence contained something extra, i.e., additional evidence that supported the truth of the aforesaid confession. The main dispute between the parties concerned the question of the admissibility of the confession that was made when the duty to give notice of the right to consult a lawyer had been breached. Counsel for the defence argued in this respect that since the military interrogator did not warn his client of his right to consult a lawyer before the interrogation began, the appellant’s confession was made as a result of an illegal violation of the aforesaid right, and therefore it should be inadmissible as evidence.

3.            The District Court Martial accepted, by a majority, the argument of counsel for the defence that in the circumstances of the case the confession made by his client in the interrogation should be declared inadmissible, because it was made without him being advised according to law of his right to consult a lawyer. The appellant was therefore acquitted of the use of a dangerous drug with which he was charged in the first three paragraphs of the indictment, and he was convicted on his guilty plea of the offence of possessing a dangerous drug under the fourth paragraph of the indictment. It should be noted that for the appellant’s conviction on the offence of possession a dangerous drug, the court martial sentenced the appellant to 72 days imprisonment, concurrently with the period that he was under arrest, and also to two months imprisonment that was suspended over a period of three years, provided that he was not convicted of any offence under the Dangerous Drugs Ordinance.

In its reasons for the verdict, which were given separately, the District Court Martial began by discussing s. 12 of the Evidence Ordinance, which makes the admissibility of a defendant’s confession conditional upon it being given ‘freely and willingly.’ The court martial pointed out that according to the case law of the Supreme Court, the lack of a warning about the right to consult a lawyer was insufficient to make a confession under the aforesaid s. 12 inadmissible, as distinct from its possible effect on the weight of the confession as evidence. Therefore the court martial turned to consider the argument of counsel for the defence with regard to the inadmissibility of the confession for reasons not included within the framework of s. 12 of the Evidence Ordinance. The main argument of counsel for the defence in this respect was that in view of the provisions of the Basic Law: Human Dignity and Liberty, the court should rule that evidence obtained by means of an illegal violation of constitutional rights is inadmissible.

The majority opinion in the District Court Martial held that the aforesaid argument of counsel for the defence should be accepted. According to the majority’s approach, the clause requiring government authorities to comply with the law in s. 11 of the Basic Law: Human Dignity and Liberty meant that, in appropriate circumstances, evidence that was obtained by violating a constitutional right of the accused should be inadmissible, in order to protect the status and integrity of the justice system and in order to provide effective protection for rights of the individual. In this context, the majority said that: ‘The weight of the interests of a fair trial, and insistence on upholding rights of the individual, are greater than the weight that should be given to pursuing the “factual truth” for the purpose of the fight against crime’ (p. 36 of the reasons for the verdict). The majority further said that ‘… applying the rule of inadmissibility does not need to be done “strictly” but by virtue of discretion that will be exercised by the court’ (p. 38 of the reasons for the verdict; emphasis in the original). In the circumstances of the appellant’s case, the majority held that the military interrogator who took down the confession ‘acted — throughout all stages of the interrogation — knowingly and intentionally in violation of the defendant’s [the appellant’s] right to consult a lawyer, and there was no basis for holding him to have acted in good faith in this respect.’ In view of all this, the majority were of the opinion that the appellant’s confession should be inadmissible, and therefore the appellant should be acquitted of the offences of making use of a dangerous drug.

By contrast, the minority opinion held that great caution should be adopted before changing case law regarding the admissibility of illegally obtained evidence, and that in this regard the Supreme Court ought to have its say. With regard to the circumstances of the case before it, the minority justice disagreed with the position of the majority with regard to the seriousness of the violation of the appellant’s rights. Admittedly, no one disputed that the military interrogator acted improperly when he failed to advise the appellant of his right to consult a lawyer until his statement had been taken. Notwithstanding, unlike the majority justices, the minority justice in the District Court Martial was under the impression that the military interrogator did not act in this matter intentionally and deliberately, but as a result of an error resulting from a lack of familiarity with, and assimilation of, the new procedures at that time. The minority justice also saw fit to point out that after he finished taking the statement, the military interrogator helped the appellant make contact with the military defence attorney in order to realize his right to consult a lawyer. In view of this, the minority justice was of the opinion that the strength of the violation of the appellant’s rights was not so serious and extreme that it justified declaring the confession inadmissible.

4.            The military prosecutor appealed to the Appeals Court Martial against the exclusion of the confession under discussion, and against the acquittal of the appellant by a majority on the offences of making use of a dangerous drug.

The Appeals Court Martial (Justices I. Schiff, M. Finkelstein and Y. Kedmi) allowed the appeal unanimously. The court held that in the circumstances of the case, the confession of the appellant should not be excluded. Notwithstanding, the justices of the Appeals Court Martial differed in their reasons for this decision. Two of the justices were of the opinion that even after the enactment of the Basic Law: Human Dignity and Liberty, the public interests of discovering the truth and fighting crime should take precedence, and that there was no basis for finding a confession inadmissible merely because the notice about the right to consult a lawyer was not given. According to their approach, the Basic Law does not require a change in the interpretation of the provisions of s. 12 of the Evidence Ordinance, as argued by counsel for the defence, and the Basic Law did not even contain anything that required the adoption of the doctrine that evidence obtained by means of a violation of a protected right of the person under interrogation should be inadmissible. The justices emphasized in their judgment that, in principle, this court is competent to change its case law and order the exclusion of illegally obtained evidence, but in their opinion it is not desirable, since it was questionable whether the legislature has ‘expressed a desire to revolutionize the rules of evidence and change long-established case law’ (p. 35 of the judgment; emphasis in the original). With regard to the circumstances of the appellant’s case, the justices held that ‘failing to notify someone who is about to be arrested and even someone who has been arrested about his right to consult a lawyer, even if it is done in bad faith, is not in itself an extreme violation of a basic right to the extent that it will result in the inadmissibility of the confession that was made freely and willingly’ (p. 31 of the judgment; emphasis in the original).

The third justice on the panel held, in a minority opinion, that in this instance there was no need to consider the question whether to adopt a constitutional rule of inadmissibility in the Israeli legal system, since in any case the provisions of s. 12 of the Evidence Ordinance constituted a comprehensive arrangement with regard to the admissibility of a defendant’s confession. In the circumstances of the appellant’s case, the justice held that the fact that the interrogator intentionally did not give a warning, at the proper stage in the interrogation, that the appellant had the right to consult a lawyer was insufficient to undermine the free and willing manner in which the appellant made his confession.

In view of the aforesaid reasons, the Appeals Court Martial held unanimously that the appeal should be allowed and that the case should be returned to the trial court so that it could admit the appellant’s confession and make its decision accordingly. At the end of the judgment, the Appeals Court Martial decided that, pursuant to its authority under s. 440I of the Military Jurisdiction Law, 5715-1955 (hereafter: ‘the Military Jurisdiction Law’), ‘leave is hereby given to appeal to the Supreme Court.’

5.            According to the aforesaid judgment, the case was returned to the District Court Martial. Counsel for the defence did not dispute before the court martial that in view of the decision that his client’s confession was admissible, his guilt was proved for all the offences with which he was charged in the indictment. In view of this, the District Court Martial convicted the appellant of three offences of using a dangerous drug, in addition to his existing conviction for the offence of possession of a dangerous drug. With regard to the appellant’s sentence, in view of his discharge from military service on grounds of incompatibility and in view of the time that had passed since the offences were committed, the court martial refrained, with the consent of the parties, from imposing a custodial sentence on the appellant for his conviction of the three offences of making use of a dangerous drug. Therefore, for these offences the appellant was sentenced to two months imprisonment that was suspended over a period of eighteen months, provided that he did not commit any offence under the Dangerous Drugs Ordinance.

6.            In view of the leave to appeal given by the Appeals Court Martial on its judgment, counsel for the appellant filed their appeal in this court. Their main argument in the appeal was that, in view of the status and importance of the right to consult a lawyer, the confession made by the appellant as a result of an illegal violation of the aforesaid right should be declared inadmissible. On 13 September 1998, the attorney-general gave notice by virtue of his power under the Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, that he would attend this proceeding, since it gives rise to a ‘question that is of great legal and public importance, in the sphere of the rules of evidence and the constitutional rights of a suspect.’

At the hearing that took place in this court on 13 June 1999 (before President A. Barak and Justices T. Or and E. Mazza) it was decided that the appeal would be heard by way of written summations before an extended panel of justices. At the appellant’s request, it was decided that the notice of appeal would serve as written summations on his behalf. In accordance with the aforesaid decision, the first respondent (the chief military prosecutor) and the second respondent (the attorney-general) filed written summations of their arguments in the appeal.

7.            On 25 October 1999, the National Public Defender’s Office filed in this court an application to file written pleadings as a ‘friend of the court.’ On 9 December 1999 the Israel Bar Association filed a similar application. For the reasons set out below, we saw fit to grant these two applications.

At the heart of the appeal before us lies the question of the effect of not giving the statutory notice concerning the right to consult a lawyer on the admissibility of a confession made by the accused in an interrogation. This question constitutes a part of a broader fundamental issue, which concerns the adoption of a doctrine that illegally obtained evidence should be inadmissible in our legal system. This is an issue of significant legal and public importance, which concerns a broad spectrum of defendants both in the military justice system and in the civilian justice system, and it is capable of raising a wide range of complex questions in the field of constitutional law and in the field of criminal evidence. In a deliberation of this kind, the Public Defender’s Office, which has a duty under the law to represent persons who have been arrested or indicted in the civilian justice system, and the Israel Bar Association which represents the active lawyers in Israel, have the ability to assist in clarifying the issues under discussion. In view of the roles of the aforesaid bodies, their expertise and experience in representing defendants, joining them to the proceeding is likely to contribute to a deeper understanding and clarification of the issue. For this reason, and in order that as broad and comprehensive a picture may be presented with regard to the questions that arise before us, we thought that there was a basis to allow the National Public Defender’s Office and the Israel Bar Association to put forward their position in this proceeding.

We therefore decided, without any objection from the parties, to join the National Public Defender’s Office and the Israel Bar Association to the proceeding before us, and we received their summary arguments (on the considerations supporting an order to join a body as a party to a proceeding in the capacity of a ‘friend of the court,’ see CrimFH 9384/01 Al Nisasra v. Israel Bar Association [1], at para. 16 of my opinion; CA 10425/03 State of Israel v. Sita Shasha [2]; HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel [3]; RT 7929/96 Kuzali v. State of Israel [4], at pp. 553-555, and the references cited there).

Arguments of the parties in the appeal

8.            In their written summations, the parties explained in depth their positions on the fundamental question that arises in this case, and they supported their reasoning with many references from Israeli law and comparative law. At this stage of our deliberations, let us discuss in brief the positions of the parties, without addressing all of the reasons and references that they address in their summations.

9.            The arguments on behalf of the appellant were presented before us by counsel from the Military Defender’s Office (Adv. E. Zohar, Adv. R. Balchar and Adv. A. Crispin). In a detailed notice of appeal, which serves also as summations of their arguments, counsel for the appellant discussed the reasons why they are contesting the decision of the Appeals Court Martial to hold their client’s confession admissible. According to counsel for the appellant, since their client’s confession was taken without him being warned according to law at the beginning of the interrogation of his right to consult with a lawyer, the confession should be inadmissible in evidence, because of two separate provisions of statute: one is s. 12 of the Evidence Ordinance and the other is the provisions of the Basic Law: Human Dignity and Liberty.

Regarding the provisions of s. 12 of the Evidence Ordinance, counsel for the appellant argued that in view of the status and importance of the right to consult a lawyer, this court should change the prevailing interpretation of the aforesaid s. 12, and determine that obtaining a confession without a statutory warning of the right to consult a lawyer necessarily violates the free and willing manner in which the accused makes his confession, and therefore it should be inadmissible. According to the approach of counsel for the appellant, the scope of the inadmissibility rule set out in s. 12 of the Evidence Ordinance should be extended so that a confession will be inadmissible whenever it is made without the person under interrogation being advised according to statute of his right to consult a lawyer. At the same time, counsel for the appellant emphasized that, in their opinion, the provisions of the aforesaid s. 12 do not constitute a comprehensive arrangement with regard to the admissibility of confessions made by defendants, and it cannot preclude the adoption of a case law doctrine regarding the inadmissibility of evidence, including a confession, that was obtained illegally. In this regard, counsel for the appellant argued that since the enactment of the Basic Law: Human Dignity and Liberty, the rights of suspects and defendants in criminal proceedings have a super-legislative constitutional status, since they are derived from the constitutional right to dignity and liberty. Consequently, they claim that not advising the appellant of the right to consult a lawyer constitutes an illegal violation of a constitutional right. According to counsel for the appellant, the proper remedy for this is that a confession made in violation of the aforesaid right should be inadmissible. This relief may be derived, according to counsel for the appellant, both from the constitutional right itself, and from the purpose, protection and government compliance clauses that are provided in the Basic Law. According to this approach, a relative doctrine of inadmissibility should be adopted that leaves the court discretion to exclude illegally obtained evidence.

In the appellant’s case, counsel argued that his confession should be excluded, inter alia in view of the serious nature of the violation of the right to consult a lawyer and in view of the fact that the court martial held that the military interrogator violated this right in bad faith and intentionally. Counsel for the appellant further argued that the failure to give the appellant the notice at the beginning of his interrogation with regard to his right to consult a lawyer was not an isolated incident, and that during the period when the appellant was being interrogated by the military police, these violations were a common occurrence. In view of all this, counsel for the appellant were of the opinion that the appeal should be allowed, the aforesaid confession should be declared inadmissible and the appellant should be acquitted of the offences of making use of a dangerous drug.

10. By contrast, the Chief Military Prosecutor, Colonel E. Ron, argued in her written summations that the appeal should be denied, for the reasons given by the majority opinion in the Appeals Court Martial. With regard to the provisions of s. 12 of the Evidence Ordinance, the chief military prosecutor argued that the court should not adopt an interpretation whereby not advising the accused of the right to consult a lawyer will necessarily lead to the inadmissibility of a confession made by him in his interrogation. According to the approach of the chief military prosecutor, for reasons that she discussed extensively, the prevailing interpretation in case law, according to which not giving a statutory notice with regard to the right to consult a lawyer does not in itself make a confession under s. 12 of the Evidence Ordinance inadmissible, should be left unchanged. With regard to the question of adopting a general doctrine that illegally obtained evidence should be inadmissible, the chief military prosecutor argued that the absence of express legislation in this regard should indicate the existence of a negative arrangement that precludes the adoption of such a judicial doctrine. According to her argument, this court ought to refrain from adopting, by means of judicial legislation, a doctrine that illegally obtained evidence is inadmissible, as requested by counsel for the appellant. In view of the variety of reasons that she listed, the chief military prosecutor argued that the appeal should be denied and the judgment of the Appeals Court Martial should be left unchanged.

11. As I said above, the attorney-general saw fit to give notice of his attendance in the proceeding before us. At the outset of his written arguments, Adv. Y. Resnick, the Deputy State Attorney, argued on behalf of the attorney-general that the attorney-general accepted the position of the chief military prosecutor and it reflected his position on the issues under consideration.

In so far as the provisions of s. 12 of the Evidence Ordinance are concerned, counsel for the attorney-general added that this is a comprehensive arrangement with regard to the question of the admissibility of defendants’ confessions. According to the case law of this court, a failure to give the statutory notice regarding the right to consult a lawyer does not, in itself, detract from the free and willing manner in which the accused makes his confession in an interrogation, and it should not be regarded as such an extreme example of an improper interrogation method that it necessarily leads to the inadmissibility of the confession. He argues that the aforesaid interpretation of the provisions of s. 12 of the Evidence Ordinance is a proper one and it should not be changed, in as much as it serves the public interest of discovering the factual truth in a criminal proceeding.

With regard to the question of the adoption of a case law doctrine that illegally obtained evidence should be inadmissible, the position of the attorney-general was that adopting such a doctrine would constitute a revolution in the rules of evidence. Therefore, he argues that if there is any basis for adoption this doctrine, it should be done in Knesset legislation and not by way of judicial legislation of the court. Counsel for the attorney-general raised a doubt as to whether all the procedural rights of suspects and defendants in criminal proceedings are in fact enshrined in the constitutional right to dignity and liberty. He further said in his arguments that the legislation that was adopted after the enactment of the Basic Laws, in the field of criminal enforcement, does not include an express provision concerning the inadmissibility of illegally obtained evidence. According to this argument, the absence of an express provision of statute in this regard is capable of indicating the existence of a negative statutory arrangement that should not be circumvented by means of a broad interpretation of the provisions of the Basic Law: Human Dignity and Liberty; this is the case especially with regard to rights that are not expressly listed within the framework of the aforesaid Basic Law. For these reasons, counsel for the attorney-general agreed with the position of the chief military prosecutor, according to which the appeal against the judgment of the Appeals Court Martial should be denied.

Adv. K. Mann and Adv. A. Kobu, counsel for the National Public Defender’s Office, which was joined to the proceeding as aforesaid, discussed in their written arguments the elevated status of the right to consult a lawyer in our legal system, the reciprocal relationship between it and the right to remain silent and the importance of the right to consult a lawyer in order to protect the propriety of the interrogation and in order to ensure the rights of the person being interrogated as a whole. Later in their arguments counsel for the National Public Defender’s Office discussed the findings of field research that they conducted at the end of 1999 and during 2003 in the Tel-Aviv district, with the aim of examining what was occurring at police stations with regard to advising persons being interrogated of the right to consult a lawyer and the right to remain silent. According to the Public Defender’s Office, the aforesaid research shows that there exists a phenomenon, which they allege constitutes a widespread practice, whereby policemen illegally refrain from notifying persons who are under interrogation of their right to consult a lawyer or they postpone the giving of the notice until after they have finished taking the statement of the person being interrogated, in a manner that undermines his ability to realize the right to consult a lawyer effectively. Against this background, the basic position of the Public Defender’s Office is that this court should adopt a case law doctrine of inadmissibility, within which framework the court may, at its discretion, exclude evidence that was obtained in violation of the basic rights of persons being interrogated in criminal proceedings. According to the approach of the National Defender’s Office, adopting such a doctrine is essential in order to protect the rights of suspects and defendants and in order to protect the fairness of criminal proceedings and the integrity and trustworthiness of the judicial system.

The Israel Bar Association (hereafter also: ‘the Bar Association’) argued also that this court should adopt a case law doctrine that illegally obtained evidence should be inadmissible. According to counsel for the Bar Association, Adv. A. Feldman and Adv. M. Sefarad, the Basic Law requires the development of constitutional remedies in order to protect the rights enshrined therein against illegal violations by executive authorities. According to this argument, the right to consult a lawyer and to be represented by him is a basic right of great importance, which constitutes an integral part of the right to a fair trial and a complementary right to the right to remain silent and the right not to incriminate oneself. According to the Bar Association, the right to consult a lawyer today constitutes a constitutional right that is derived from the right to human dignity and liberty. A failure to give notice of the right to consult a lawyer before taking the statement of a defendant in an interrogation deals a mortal blow to the aforesaid right. For the reasons set out extensively in its written arguments, the Bar Association is of the opinion that our legal system is ready to adopt a case law doctrine that will exclude evidence obtained by means of a violation of the constitutional rights of persons who are under interrogation. It argues that adopting such a doctrine will be capable of educating and deterring interrogators from using illegal interrogation methods, and of protecting human rights and the credibility of the judicial system in an effective manner.

12. It is possible, therefore, to summarize that we have seen various positions with regard to the variety of issues that arise in the case before us — including arguments concerning the interpretation of the provisions of s. 12 of the Evidence Ordinance in view of the Basic Law and arguments concerning the question of adopting a case law doctrine that illegally obtained evidence should be inadmissible. It should be noted that even according to those who believe that such a doctrine should be adopted, the court has been asked, in view of the provisions of the Basic Law, to develop a relative doctrine that will allow discretion in excluding illegally obtained evidence.

The protracted nature of the proceeding

13. Before we turn to examine the positions that have been presented to us and to determine the weighty issue brought before us, we should point out that the writing of our judgment was delayed until now for various reasons. As can be seen from the arguments of the parties, among the issues that arose in the appeal before us was the fundamental question of whether to adopt a case law doctrine according to which illegally obtained evidence should be inadmissible, and what should be the nature and framework of this doctrine. It has been said in the case law of this court that ‘… “a rule of inadmissibility” affects the heart and soul of the criminal trial… the whole issue is of great legal and public importance, and it should not be decided without regard to the complete social picture’ (per Justice Barak in HCJ 249/82 Vaknin v. Appeals Court Martial [5], at p. 422). This is an issue on which much literature has been written both in Israel and elsewhere. In other countries various arrangements have been adopted on the question of the admissibility of illegally obtained evidence. In some countries a change has occurred in the arrangements practiced in this regard as a result of legal and social developments. In Vaknin v. Appeals Court Martial [5], Justice Barak refrained from considering the question of adopting a doctrine as aforesaid in our legal system, for the reason that all of the relevant material on the subject was not brought before the court (ibid.). Notwithstanding, in that case he discussed some of the questions that arise in this context, without deciding them: ‘Should we declare evidence, which was obtained by improper methods, completely inadmissible? Should we distinguish between various kinds of evidence and between various improper methods? Does the court have discretion? What are the parameters?’ (ibid., at p. 422). These questions come before us now and they are difficult and complex. Their solution required us to assemble material from various legal systems, which we have studied and considered in depth.

Moreover, during the time that passed since the appeal was filed, several proposals have been considered for amending legislation on the issues that arose before us (see the draft Evidence Ordinance [New Version] Amendment (Statement of Accused Outside the Court) Law, 5760-1999, the draft Evidence Ordinance Amendment (no. 15) (Confession of Accused regarding Serious Offences) Law, 5761-2000, the draft Evidence Ordinance Amendment (Inadmissibility of Confession Obtained by Violence) Law, 5764-2004, and the draft Evidence Ordinance Amendment (Admissibility and Weight of Accused’s Confession) Law, 5764-2004, which concerned proposals to amend the provisions of s. 12 of the Evidence Ordinance; see also the draft Evidence Ordinance Amendment (Inadmissibility of Evidence) Law, 5765-2005, which concerns giving general discretion to the court to exclude illegally obtained evidence in accordance with criteria that we shall discuss later). In view of the legal, public and social importance of the issues brought before us and taking into account the variety of arrangements practised in this matter in other countries, we saw fit to wait before making our decision, in case a solution would be found to these questions in legislation of the Knesset. Since the aforesaid draft laws were not passed by the Knesset from the time the appeal was filed until today, there is no alternative to examining the arguments of the parties and making a decision with regard thereto. Notwithstanding, as will be clarified below, our judgment does not provide a complete solution to all the questions involved in the issue of the admissibility of illegally obtained evidence. It can be assumed that, if a need arises, these questions will be addressed in legislation that is consistent with the provisions of the Basic Law.

It should be emphasized that the appellant did not suffer any real harm from the time that passed before we gave our judgment. As will be explained below, the appellant’s conviction on the offences of making use of a dangerous drug was based on a confession whose admissibility is the question that lies at the heart of the appeal that was filed in this court. For the appellant’s conviction on the offences of making use of a dangerous drug, he was sentenced to imprisonment that was suspended for a period of eighteen months. The aforesaid suspension period has passed and, in so far as we are aware, the suspended sentence was not activated. In these circumstances, the delay in making our decision on the fundamental questions that arise in this appeal did not significantly harm the appellant.

Against this background, let us turn to examine the fundamental issues that are before us.

The right to consult a lawyer and the duty to give notice of this right

The importance of the right to consult a lawyer

14. The right of someone under arrest to be represented by a lawyer and to consult him was recognized as a fundamental right in our legal system in the earliest days of this court (see CrimA 307/60 Yassin v. Attorney-General [6], at p. 1570; CrimA 96/66 Tau v. Attorney-General [7], at pp. 545-546; see also CrimA 533/82 Zakkai v. State of Israel [8], at p. 65; CrimA 334/86 Sabah v. State of Israel [9], at p. 865; CrimA 747/86 Eisenman v. State of Israel [10], at p. 453).

When the Criminal Procedure Law (Amendment no. 15), 5741-1981, was adopted, the right of a person under arrest to meet with and consult a lawyer was expressly enshrined in statute, and it was originally provided in s. 29 of the Criminal Procedure Law [Consolidated Version], 5742-1982. This provision of statute was replaced by s. 34(a) of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (hereafter: ‘the Arrests Law’), with an identical wording to the wording of the aforesaid s. 29. The following is the language of the section:

‘Right of person under arrest to meet with lawyer       34. (a) A person under arrest is entitled to meet with a lawyer and consult him.’

The importance of the right to meet with and consult a defence lawyer at the interrogation stage derives from the fact that, as a rule, an interrogation by persons in authority is a complex and stressful situation for anyone who is interrogated under conditions of arrest when he is confronted by his interrogators on his own. The accepted opinion is that the right to be represented by and to consult a lawyer assists in protecting the rights of persons under arrest, ensures the fairness of the interrogation proceedings and prevents abuse of the inherent disparity of forces between the arrested person and the persons in authority who are interrogating him. In this context, it is possible to indicate several reasons that support the right of the person under arrest to legal representation at the interrogation stage: first, a consultation by the person under arrest with his lawyer assists in ensuring that the person under arrest is aware of all of his rights, including the right to a fair interrogation without any improper interrogation methods being used against him, the right not to incriminate himself and the right to remain silent. The assumption is that the lawyer will take care to give an explanation to the person under arrest with regard to his rights in the interrogation in simple and clear language, and that he will explain to him the significance of not presenting his version of events in the police interrogation. It has been said in the case law of this court that: ‘the right to defence counsel includes the legitimate possibility that a lawyer will advise the suspect or accused to remain silent and not make any statement to the police’ (per Justice Goldberg in Eisenman v. State of Israel [10], at p. 452). For this reason, it is customary to regard the right to consult a lawyer as another aspect of the right to remain silent (see Yassin v. Attorney-General [6], at p. 1570; Tau v. Attorney-General [7], at p. 546; Eisenman v. State of Israel [10], at p. 452; HCJ 3412/91 Sufian v. IDF Commander in Gaza Strip [11], at p. 847, per Vice-President Elon; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [12], at p. 764, per Justice Rivlin).

In addition to the aforesaid, we should point out that in the past this court has adopted the position that not only does an accused in a trial have the right to remain silent but so too does a suspect in an interrogation (see, for example, LCA 5381/91 Hogla v. Ariel [13], at p. 381, per Justice Mazza; CrimA 1382/99 Balhanis v. State of Israel [14], per Justice Ilan; LCrimA 3445/01 Almaliah v. State of Israel [15], at p. 869, per Justice Dorner). We should mention that recently this court saw fit to leave undecided the question of the scope of the right to remain silent in the interrogation of a suspect (see LCrimA 8600/03 State of Israel v. Sharon [16], at pp. 756-757 and 759, per Vice-President Or and the references cited there). This question does not arise in the case before us, and therefore we too shall leave it undecided.

The right to consult a lawyer therefore helps to ensure that the person under arrest is aware of all of his rights in an interrogation. In addition to this, the defence lawyer of the arrested person may make a contribution towards ensuring the propriety of the interrogation and the lawfulness of the measures adopted during it, and he may also assist in ensuring the reliability of the evidence obtained in the interrogation proceedings (see, for example, CrimA 648/77 Kariv v. State of Israel [17], at p. 743, where President Shamgar discussed the reasons supporting the presence of a defence lawyer when an identity parade is conducted with the suspect; see also D. Bein, ‘The Right of a Suspect Under Arrest to a Defence Lawyer in Interrogation Proceedings — “Compromise” Solutions,’ 39 HaPraklit 108 (1990), at pp. 109-112). Moreover, there are some opinions that the representation of a person under arrest by a lawyer contributes to the effectiveness of the interrogation, in the sense that the lawyer may help the interrogation authorities in finding evidence that supports the innocence of the person under arrest, and even help in preventing the making of false confessions by persons under arrest (see Y. Tirosh, ‘ “The Right to Legal Representation in an Interrogation” — Rules of Entrapment in the light of Comparative Law,’ 14 Mishpat veTzava (Military Law) 91 (2000), at pp. 94-95). In view of all of the aforesaid reasons, no one disputes the elevated position and centrality of the right to consult a lawyer in our legal system.

15. In view of the importance of the right to consult a lawyer, the Arrests Law now provides that if a person under arrest asks to meet with a lawyer or if a lawyer appointed by someone close to the person under arrest asks to meet with him, ‘the person in charge of the investigation shall allow this, without delay’ (s. 34(b) of the law; emphasis supplied). It is further provided in the law that even though supervision of the movements of the person under arrest should be allowed, the meeting of the person under arrest with his lawyer should take place in private and in conditions that guarantee the confidentiality of the conversation (s. 34(c) of the law). It should be noted that, alongside these provisions of the law there are exceptions that, in appropriate circumstances, allow the meeting of the person under arrest with a lawyer to be deferred in accordance with the grounds and conditions prescribed by the law. The law also provides a special arrangement with regard to the meeting of a person under arrest with his lawyer when he is suspected of security offences. These exceptions show that, like other basic rights, even the right to consult a lawyer is not absolute and there are occasions when it has to give way to competing rights and interests (see Sufian v. IDF Commander in Gaza Strip [11], at p. 848, per Vice-President Elon; CrimA 6613/99 Smirk v. State of Israel [18], at p. 554; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [19], at pp. 380-381 {212-213}, per President Barak).

In order to complete the picture, we should point out that when the Public Defender’s Office Law, 5756-1995 (hereafter: ‘the Public Defender’s Office Law’) was enacted, statute recognized the right of suspects and persons under arrest to representation by a public defender, in the circumstances listed in the provisions of s. 18 of the aforesaid law. The restrictions on the right to representation by the Public Defender’s Office on the grounds listed in s. 18 of the law are also based on the perception that the right to legal representation in general, and the right to legal representation at the public expense in particular, are not absolute rights and they should be balanced against competing rights and interests in accordance with the grounds and conditions set out in the law.

Duty to give notice of the right to consult a lawyer

16. The right of the person under arrest to be represented by a lawyer and to consult him gives rise to the right to be given notice of the aforesaid right by the interrogation authorities. The reason for this is that without giving notice of the aforesaid right, the person under arrest will not be aware of his right to ask to consult his lawyer, and this may not only prejudice the actual right to consult a lawyer but also in certain circumstances undermine the fairness of the interrogation. The remarks of Vice-President Elon in Sufian v. IDF Commander in Gaza Strip [11] are illuminating in this regard:

‘The basic right of the defendant to meet with a lawyer gives rise to and implies the right to receive a notice of the existence of this right and the duty imposed on the authorities to give notice of this to the person under arrest. Someone who does not know of the existence of a right cannot try to realize it. This is especially the case when we are speaking of someone who is under arrest, and his mind is troubled, and he will probably not know how he should act and what he should do. For this reason the person under arrest has a right to be notified of his right to meet with a lawyer, and the authorities have a duty to notify him accordingly’ (ibid. [11], at p. 850).

This is the place to point out that the duty of the investigation authorities to give notice of the rights of the person under interrogation has undergone development over the years. Notwithstanding, it would appear that our legal system has no comprehensive and uniform statutory arrangement in this regard. With regard to the right not to incriminate oneself and the right to remain silent, the duty to give notice of these is intended to ascertain that the accused is aware of these rights at the time of his interrogation, and that he knowingly waived them when giving his statement. In its early years, this court derived the duty to give notice of the aforesaid rights from the English Judges’ Rules, which were regarded merely as guidelines (see CrimA 69/53 Sich v. Attorney-General [20], at p. 805, and the references cited there). Now s. 28(a) of the Arrests Law prescribes a duty to give a warning, even though the aforesaid section does not refer directly to warning a suspect that he has a right to remain silent in an interrogation, but it concerns giving a person an opportunity to respond before a decision to arrest him, when the officer in charge has the duty to warn him beforehand that he is not liable to say anything that may incriminate him, but that refraining from answering questions may strengthen the evidence against him (see Smirk v. State of Israel [18], at p. 545). In the case before us, no one disputes that the appellant was warned before taking his statement with regard to the right to remain silent in accordance with the wording of the warning prescribed in s. 267 of the Military Jurisdiction Law. In view of this, no questions arise in the appellant’s case with regard to the duty to give notice of the aforesaid right, and with regard to the scope of the application of the right to remain silent in the interrogation of a suspect, as distinct from an accused.

With regard to the duty to give notice of the right to consult a lawyer, this is now expressly enshrined in the provisions of the Arrests Law and the Public Defender’s Office Law, which were enacted after the Basic Law: Human Dignity and Liberty was enacted. Section 32 of the Arrests Law provides as follows:

‘Explaining rights to a person under arrest        32. If the officer in charge decides to arrest the suspect, he shall immediately make the fact of the arrest and the reason for the arrest clear to him in language that he can understand, in so far as possible, and also —

                (1)          His right that notice of his arrest should be given to a person close to him and to a lawyer, and his right to meet with a lawyer, all of which subject to the provisions of sections 34 to 36; and also his right to be represented by a defence lawyer as stated in section 15 of the Criminal Procedure Law or under the Public Defender’s Office Law.

(2) …’

(Emphasis supplied).

The provisions of s. 19 of the Public Defender’s Office Law, which deals with giving notice of the possibility of a public defence attorney being appointed, states as follows:

‘Notice to the person under arrest of a possibility of appointing a public defence lawyer            19. (a) If a person is arrested and brought to a police station or to a facility of an investigative authority under the law, or if he is suspected of committing an offence, the person in charge of the station or of the investigation shall notify him, as soon as possible, that he has the possibility of asking that a public defence lawyer is appointed, if he is entitled to one under this law.

                                (b) …’

(Emphases supplied).

A study of the two aforesaid provisions of statute shows that, prima facie, there are differences between the two with regard to the time when the duty arises to give a notice with regard to the right to consult a lawyer and the right to be represented by a public defence lawyer: according to the provisions of s. 32(a) of the Arrests Law, the duty to give notice of the right to consult a lawyer arises when the decision to arrest a person is made by the officer in charge and when notice is given that the person is under arrest. By contrast, under the provisions of s. 19(a) of the Public Defender’s Office Law, the duty to give notice of the right to ask for the appointment of a public defence lawyer applies to a person under arrest who has been brought to the police station or to a person suspected of committing an offence.

17. In their arguments before the court martial and also before us, counsel for the appellant addressed extensively the question of the proper interpretation of the term ‘person under arrest’ in the title of section 32 of the Arrests Law. According to them, this question should be decided in order to determine when under s. 32(1) the duty arises to notify a person under interrogation of his right to consult a lawyer, and whether this duty has been breached in the case of the appellant.

In their arguments, counsel for the appellant discussed two interpretive possibilities for the term ‘person under arrest’ in s. 32 of the Arrests Law: according to the narrow interpretation, which counsel for the defence asks us to reject, the duty to give notice of the right to consult a lawyer arises when a decision is made by the officer in charge to make the arrest and notice of this is given to the suspect. According to counsel for the appellant, this interpretation is not desirable since it can lead to a situation in which the interrogation authorities delay giving the notice that the suspect is under arrest until after they have taken his statement, with the result that the meeting with the lawyer loses its effectiveness. It should be said at once that the answer to the aforesaid concern lies in the determination that even according to the narrow interpretation of the term ‘person under arrest,’ it cannot be said that an illegal delay in giving notice of the decision to make an arrest will lead to a postponement of the time when the duty arises to give notice of the right to consult a lawyer. Moreover, a delay in giving the notice of arrest, which is artificial and done in bad faith, with the purpose of tendentiously postponing the time of the duty to give notice of the right to consult a defence lawyer, is likely in itself to constitute a violation of the suspect’s procedural rights, with all that this implies. Notwithstanding, it is clear that according to the narrow interpretation, the duty to give notice of the right to consult a lawyer involves the officer in charge making an objective decision to arrest the suspect, and this is capable of restricting the scope of the duty to give notice of the right to consult a lawyer.

According to the outlook of counsel for the appellant, the spirit of the Basic Law: Human Dignity and Liberty and the arrangement set out in the provisions of s. 19(a) of the Public Defender’s Office Law today require a broad interpretation of the term ‘person under arrest’ in s. 32 of the Arrests Law. According to the interpretation proposed by them, the duty to notify a ‘person under arrest’ of his right to consult a lawyer does not necessarily involve the making of a decision to arrest him, but it arises whenever a person is suspected of committing an offence and is detained in police custody for the purposes of interrogation, in such a way that his liberty and freedom of movement are restricted; this is the case even if no decision has been made by the officer in charge to arrest the suspect. The National Public Defender’s Office also supports this interpretation, in view of its argument that the duty to give notice of the right to consult a lawyer arises at the beginning of the interrogation of a person suspected of committing an offence (regarding the difficulty in determining the borderline on the question of when a person turns from a ‘witness’ into a ‘suspect,’ see Almaliah v. State of Israel [15]). Indeed, in Canada, South Africa and the United States the duty to give notice of the right to consult a lawyer applies not only with regard to persons under arrest but also with regard to suspects who are detained for the purposes of interrogation. With regard to English law, the duty to give notice of the right to consult a lawyer applies, as a rule, to a ‘person under arrest’ when he arrives at the police station (see s. 58(a) of the Police and Criminal Evidence Act 1984 (hereafter: ‘PACE’); see also Police and Criminal Evidence Act 1984 Code of Practice C, para. 3.1) Notwithstanding, there are circumstances in which the duty to give notice of the right to consult a lawyer applies even before the suspect is arrested (see PACE Code of Practice C, para. 3.21).

Prima facie, the question of the interpretation of the term ‘person under arrest’ in s. 32 of the Arrests Law should have arisen in the circumstances of the case before us, since the confession of the appellant was taken from him when he was suspected of offences under the Dangerous Drugs Ordinance and was being detained for the purposes of interrogation, but before he received a notice that he was under arrest for these offences. In the aforesaid circumstances, the question whether, according to the aforesaid s. 32, the interrogator should have warned the appellant before taking his statement of his right to consult a lawyer would appear to arise. But in practice, for the reasons that will be made clear below, I agree with the position of the Appeals Court Martial that a decision with regard to the interpretation of the term ‘person under arrest’ in the aforesaid s. 32 is not required in the appellant’s case. Therefore, even though I am inclined to adopt the broad interpretation of the term ‘person under arrest’ in s. 32 as argued by counsel for the defence, I do not see any need to decide this question in the present case, and I leave it undecided.

The breach of the duty to give the notice in the case of the appellant

18. As has been clarified above, the interrogation of the appellant was conducted by the military police because he was a soldier. Under the provisions of s. 227A of the Military Jurisdiction Law, an interrogation as aforesaid is subject to the provisions of ss. 32 to 36 of the Arrests Law, mutatis mutandis. Therefore, the provisions of the Arrests Law concerning the right to meet with a lawyer and to receive notice of this apply also to soldiers being interrogated by the military police. Notwithstanding, s. 227A1 of the Military Jurisdiction Law further provides the following:

‘Soldier who is interrogated    227A1. Without derogating from the provisions of section 227, the provisions of section 34 and 35 of the Criminal Procedure (Enforcement Powers — Arrests) Law shall apply with regard to a soldier who is interrogated and under the law there is an almost certain possibility that he will be arrested, all of which according to the case and mutatis mutandis as stated in section 227A; for the purpose of this section, ‘under the law’ — including under case law.’

Thus we see that with regard to the interrogation of soldiers by the military police, the legislature expressly provided that the right to consult a lawyer and the duty to give notice of this right shall apply to every soldier who is interrogated and with regard to whom, under the law, ‘there is an almost certain possibility that he will be arrested.’ Thus, taking into account the special characteristics of soldiers and the interrogation thereof, the legislature saw fit to provide expressly that the existence of an almost certain possibility that the soldier will be arrested is sufficient to give rise to his right to consult a lawyer and the duty to give notice thereof. Moreover, with regard to soldiers there is also an arrangement in the Military Jurisdiction Law according to which any person being interrogated who is soldier and who is likely to be arrested, and any accused who is a soldier, are entitled to representation by the military defender’s office (see s. 227A(6) and s. 316 of the aforesaid law).

19. Section 227A1 of the Military Jurisdiction Law was adopted in 1998 within the framework of the thirty-fourth amendment of the law. Therefore, when the appellant was interrogated in 1996, the aforesaid provision had not yet been enacted. Notwithstanding, the guidelines of the military police that were in forced at that time determined a similar arrangement to the one enshrined in the aforesaid s. 227A1, according to which: ‘should it be known in advance that a soldier is going to be arrested, he should be given notice of the suspicions and his rights before he is interrogated, including the right to consult with a lawyer’ (Public Defender’s Office exhibit 8). In view of this, there is no dispute between the parties before us that under the law that prevailed at the time the appellant was interrogated, there arose a duty to give notice of the right to consult a lawyer when it was known in advance that the soldier under interrogation was likely to be placed under arrest, even before a decision was made to arrest him. There is also no dispute that the military interrogator who interrogated the appellant acted contrary to what was required by the aforesaid guideline: at the beginning of the interrogation of the appellant on 18 December 1996, it was clear that he was likely to be arrested, in view of the fact that when he was admitted to Prison 6 a dangerous drug of the cannabis type was found in his possession. Notwithstanding, the military interrogator began to take the appellant’s statement without first warning him of his right to consult a lawyer. Moreover, even after the military interrogator’s superior officer ordered him in a telephone conversation during the interrogation to place the appellant under arrest, the interrogator continued to take the statement and only approximately a quarter of an hour after he had finished taking it, he notified the appellant that he was under arrest and that he had the right to consult a lawyer. There is therefore no dispute that the military interrogator acted illegally when he refrained from warning the appellant with regard to his right to consult a lawyer when he began to take his statement, or at least after his superior officer told him, while he was taking the statement, to place the appellant under arrest. In view of the aforesaid omission of the military interrogator, the appellant was not aware of the right to consult a lawyer before the first statement was taken from him. Therefore the appellant did not ask to consult a lawyer before he confessed that he had made use of a dangerous drug when he was a soldier. In these circumstances, it is agreed by the parties before us that the failure to notify the appellant of his right to consult a lawyer amounted to a violation of the actual right to consult a lawyer.

20. In their written summations, the parties extensively addressed the question whether the failure to warn the appellant at the beginning of his interrogation with regard to his right to consult a defence attorney amounted to a violation of a constitutional right. This question has no simple solution, in view of the fact that the right to consult a lawyer is not expressly mentioned in the Basic Law: Human Dignity and Liberty. Admittedly, the constitutional right to dignity and liberty contains a variety of values, and it would appear that it has a strong connection with the rights of a suspect, a person under arrest and a defendant in criminal proceedings. Notwithstanding, various approaches are possible with regard to the question of which of the procedural rights in the criminal proceeding are indeed included within the framework of the constitutional right to dignity and liberty, and what is the scope of the constitutional protection given to rights that are not expressly mentioned in the Basic Law (see, in this regard, my remarks in CrimA 7335/05 Public Defender’s Office, Nazareth District v. State of Israel [21], at para. 9 of my opinion; for an approach that calls for care in extending the scope of the rights included in human dignity and liberty without them being expressly mentioned in the Basic Law, see HCJ 453/94 Israel Women’s Network v. Government of Israel [22], at pp. 535-536 {467-468}, per Justice Zamir; A. Bendor, ‘Criticism of the Relativity of Basic Rights,’ 4 Mishpat uMimshal (1997) 343, at p. 344; H. Sommer, ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) (1997) 257, at pp. 267, 331, 337; for an approach that supports the inclusion of procedural rights of suspects, persons under arrest and defendants in criminal proceedings in the constitutional right to dignity and liberty, see A. Barak, Interpretation in Law — Constitutional Interpretation (vol. 3, 1994) at pp. 431-433; M. Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 27, at p. 34; E. Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 155 (1996), at pp. 156, 179; Y. Karp, ‘The Criminal Law — A Janus of Human Rights: Constitutionalization in the light of the Basic Law: Human Dignity and Liberty,’ 42 HaPraklit 64 (1995), at pp. 80-82; for statements in the case law of this court according to which the right to consult a lawyer constitutes a constitutional right by virtue of its being derived from the dignity and liberty of the person under arrest, see Sufian v. IDF Commander in Gaza Strip [11], at pp. 847-848, and 850 per Vice-President Elon; HCJ 6302/92 Rumhiya v. Israel Police [23], at p. 212, per President Barak; CrimApp 5136/98 Manbar v. State of Israel [24]; Marab v. IDF Commander in Judaea and Samaria [19], at p. 380 {212}, per President Barak; Association for Civil Rights in Israel v. Minister of Public Security [12], at p. 764, per Justice Rivlin).

It should be noted that in Canada and South Africa the right to consult a lawyer is given an express constitutional status. In Canada the right to consult a lawyer is enshrined in s. 10(b) of the Charter of Rights and Freedoms, whereas in South Africa the aforesaid right is enshrined in the provisions of s. 35(2)(b) of the Constitution of 1996. In the United States, the Supreme Court has recognized the right to consult a lawyer as a constitutional right, since it is derived from the right to representation under the Sixth Amendment of the Constitution and also from the right not to incriminate oneself and the right to due process that are protected within the framework of the Fifth Amendment of the Constitution (see Miranda v. Arizona [104]; see also W.R. LaFave and J.H. Israel, Criminal Procedure (second edition, 1992), at pp. 529-530). In addition, we should point out that the draft Basic Law: Trial Rights (Draft Laws 1994, 335), which was prepared by the Minister of Justice and was tabled in the Knesset in 1994, proposed to give an express constitutional status to the right of a person under arrest to meet with a lawyer and the right to receive a notice of this (see s. 6 of the draft law). As is well known, this proposal did not become law.

After considering the various aspects involved in the matter, I have come to the conclusion that in the case before us we do not need to decide the comprehensive and complex issue concerning the constitutional status of the procedural rights of suspects, persons under arrest and defendants in criminal proceedings, even though it seems that in our case law there is a trend towards the approach that the right to consult a lawyer is a constitutional right. Nonetheless, even if we say that the right of a person under arrest to consult a lawyer does not have a super-legislative constitutional status — and on this subject I see no need to express an opinion — no one doubts its importance and centrality in our legal system. Moreover, even if the right to consult a lawyer is not included within the narrow inner circle of the constitutional right to human dignity and liberty, it is possible to say that under the influence of the Basic Laws the status of the aforesaid right and the duty to take account of it has been strengthened; this is because of its possible connection with the dignity and liberty of the person under interrogation and in view of its being a part of the right to a fair trial in criminal proceedings which we shall discuss extensively later. Consequently, a failure to give the statutory notice with regard to the right to consult a lawyer may, in appropriate circumstances, lead to the inadmissibility of a confession made by the accused in an interrogation. What the normative basis for this should be and in what circumstances such inadmissibility will be required are the questions that will lie at the heart of our further deliberations.

Section 12 of the Evidence Ordinance — a ‘free and willing’ confession

21. For decades, the provisions of s. 12 of the Evidence Ordinance have governed the question of the admissibility of a confession made during an interrogation of a defendant. The following is the wording of the section:

‘Confession    12. (a) Testimony concerning a confession of the accused that he committed an offence shall be admissible only if the prosecutor brings testimony concerning the circumstances in which the confession was made and the court sees that the confession was made freely and willingly.’

                (Emphasis supplied).

A similar arrangement is provided in s. 477 of the Military Jurisdiction Law, which states:

‘Confession of accused as evidence    477. A court martial shall not admit a confession of an accused in evidence unless it is persuaded that it was made by the accused of his own free will.’

                (Emphasis supplied).

There is no dispute between the parties before us that the ‘free will’ test provided in s. 477 of the Military Jurisdiction Law is substantially the same as the ‘free and willing’ test provided in s. 12 of the Evidence Ordinance. Therefore, even though our deliberations below will focus on the interpretation of the provisions of s. 12 of the Evidence Ordinance, our interpretive conclusions will also be valid with regard to s. 477 of the Military Jurisdiction Law.

22. In the notice of appeal that they filed, counsel for the appellant argued that since the Basic Law: Human Dignity and Liberty was enacted, the prevailing interpretation of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance, as determined in the case law of this court, ought to be changed. According to the argument, in the spirit of the Basic Law it should be held that since the appellant was not warned according to law at the beginning of his interrogation with regard to his right to consult a lawyer, the confession that was taken from him is not made ‘freely and willingly’ and therefore it should be declared inadmissible in accordance with the provisions of the aforesaid law. In order to make a decision with regard to this argument, let us first discuss the interpretation given to the aforesaid s. 12 in the case law of this court before the enactment of the Basic Law: Human Dignity and Liberty. Then let us turn to examine the question whether after the enactment of the Basic Law our prevailing case law interpretation of the aforesaid s. 12 ought to be changed, and whether we should decide that a failure to give the statutory warning with regard to the right to consult a lawyer necessarily makes a defendant’s confession inadmissible, as argued by defence counsel.

The interpretation of section 12 of the Evidence Ordinance before the Basic Law

23. The rule of inadmissibility provided in s. 12 of the Evidence Ordinance has its origins in English common law (see Ibrahim v. R. [109]). Initially, the aforesaid rule was intended to examine the circumstances concerning the manner of taking a confession within the framework of an interrogation by a person in authority (see the remarks of Justice Or in CrimA 5614/92 State of Israel v. Mesika [25], at pp. 677-678 and the references cited there; for the opinion that the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance applies also to confessions made before persons who are not in authority, see Y. Kedmi, On Evidence (vol. 1, 2004), at p. 12).

In accordance with the rule provided in s. 12 of the Evidence Ordinance, the court should declare a confession of an accused inadmissible, if it was not made freely and willingly. The definition of when a confession is made ‘freely and willingly’ is not simple, and the case law of this court has had to contend with this question from the outset. A person who is under interrogation for offences of which he is suspected experiences psychological pressure and physical discomfort that are inherent to the situation in which he finds himself. ‘An interrogation by its very nature places the person under interrogation in a difficult position… any interrogation, no matter how fair and reasonable, places the person under interrogation in embarrassing and trying situations, intrudes into his private concerns, invades the innermost parts of his soul and places him under serious emotional pressure’ (see HCJ 5100/94 Public Committee Against Torture v. Government of Israel [26], at pp. 834-835 {589-590}, per President Barak, and the references cited there). In view of this, it is clear that the expression ‘freely and willingly’ should not be given a literal interpretation. Indeed, the meaning given to this term over the years in the case law of this court was a technical-legal one, according to which a confession of an accused will be inadmissible under the aforesaid s. 12 only if improper ‘external pressure’ was exerted on him at the time of the interrogation to such an extent that it was capable of undermining his ability to choose freely between making a confession and not making one (see Sich v. Attorney-General [20], at p. 808; CrimA 636/77 Levy v. State of Israel [27], at p. 774; CrimA 4427/95 A v. State of Israel [28], at p. 564; Smirk v. State of Israel [18], at p. 541; CrimFH 4342/97 El Abid v. State of Israel [29], at pp. 837, 865).

The question of what is improper ‘external pressure’ that is capable of undermining the ability of the accused in his interrogation to choose freely between making a confession and not making one will be considered later. At this stage of our deliberations, we should emphasize that even if it is not proved that a confession made by an accused in his interrogation is admissible as evidence because it is made ‘freely and willingly,’ the court should also examine the weight and credibility of the confession. This is because ‘… even the use of interrogation methods that are permitted may lead to a person being interrogated confessing an offence that he did not commit,’ because of internal pressures in the human soul (see the remarks of President Shamgar in FH 3081/91 Kozali v. State of Israel [30], at p. 448).

The conditions for determining the admissibility and weight of a confession of an accused indicate that even though a confession that was obtained by a person in authority constitutes admissible evidence to prove guilt in criminal cases, statute and case law provide barriers whose purpose is to address the concerns involved in admitting it as evidence (for the reasons for the aforesaid concerns and for the possible factors leading to the making of false confessions in interrogations before persons in authority, see the Report of the Commission chaired by Justice Goldberg concerning Convictions based solely on a Confession and concerning the Grounds for a Retrial (1995), at pp. 8-10 (hereafter: the Report of the Commission concerning Convictions based solely on a Confession); B. Sanjero, ‘The Confession as a Basis for a Conviction — “Queen of Evidence” or Empress of False Convictions,’ 4 Alei Mishpat (2005) 245, at p. 249 et seq.; for the dominant approach in our case law, whereby a confession of an accused constitutes evidence for proving guilt in criminal trials, whose admissibility and weight will be examined in accordance with the circumstances of each individual case, see El Abid v. State of Israel [29], at pp. 819-820 per Justice Or, at pp. 833-834 per Justice M. Cheshin, at p. 855 per Justice Strasberg-Cohen, at p. 857 per Justice Mazza and at p. 865 per President Barak; for the approach that regards the confession of an accused as ‘suspect evidence’ whose credibility should be examined ab initio from a sceptical perspective, see El Abid v. State of Israel [29], at pp. 836-839, per Justice Dorner). In this context it should be noted that in 2002 the Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, was passed. This provides that, as a rule, the interrogation of a suspect at a police station for serious offences shall be documented visually subject to the exceptions listed in the law. This arrangement is supposed to be implemented gradually by means of orders made by the Minister of Public Security as stated in s. 16(b) of the law. The statutory duty to document interrogations of suspects visually or audibly is intended to allow the court to obtain an impression, as closely and objectively as possible, of the manner in which the interrogation was conducted and the circumstances in which the confession was made during it. The purpose of this is to help the court decide the admissibility and weight of confessions made in an interrogation, and to allow better protection of the rights of persons under interrogation (see the explanatory notes to the draft Evidence Ordinance Amendment (no. 15) (Confession of an Accused to Serious Offences) Law, 5761-2000).

24. The question of what is the purpose of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance has undergone development over the years. Initially, the ‘free will’ test was used to render inadmissible confessions that were obtained by employing interrogation methods that mainly involved force and violence, or the threat thereof, and to render inadmissible confessions that were obtained by employing unfair entrapments or inducements. At that time, the prevailing approach in case law was that the ‘free will’ test was intended to safeguard the credibility of confessions made in the presence of persons in authority. According to that approach, improper interrogation methods, such as violence, force and threats or inducements and promises by a person in authority, were likely to lead to the making of false confessions and therefore these confessions should be regarded as inadmissible ab initio (with regard to the fact that the ‘free will’ test was originally intended to safeguard the credibility of confessions in English common law, see C. Tapper, Cross and Tapper on Evidence (eighth edition, 1995), at p. 664; M.A. Godsey, ‘Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination,’ 93 Cal. L. Rev. (2005) 465, at pp. 481-482; with regard to the fact that this court, in its early years, adopted from the common law the approach that the rule of inadmissibility was intended to safeguard the credibility of confessions, see CrimA 2/48 Al-Lodj v. Attorney-General [31], at pp. 96-97, per Justice S.Z. Cheshin; Yassin v. Attorney-General [6], at p. 1554; CrimA 242/63 Kariti v. Attorney-General [32], at pp. 497-498, per Justice HaLevy; CrimA 270/65 Kasey v. Attorney-General [33], at p. 566, per Justice Sussman).

Over the years, the emphasis was changed to include not only forcible measures and physical violence that were regarded as a ground for inadmissibility, but also claims with regard to exerting unfair emotional or psychological pressure on defendants in their interrogation. At the same time, there was a change in thinking with regard to the reasons underlying the inadmissibility rule provided in the aforesaid section 12. Alongside the purpose of safeguarding the credibility of confessions, some authorities were of the opinion that the ‘free will’ test was intended to protect the rights of defendants in an interrogation and the propriety of the criminal proceeding. According to this approach, declaring a confession inadmissible is intended to provide relief for the violation of the human dignity of the person under interrogation, and in order to prevent the court being a party to the illegality perpetrated by the interrogation authorities when admitting the evidence in a trial. In addition, an opinion was expressed that the purpose of the inadmissibility rule provided in the aforesaid s. 12 is to educate and deter the interrogation authorities against the use of improper interrogation methods. (For the development in thinking with regard to the reasons underlying the inadmissibility rule enshrined in s. 12, see E. Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ 30 Hebrew Univ. L. Rev. (Mishpatim) (1999) 145, at pp. 156-157; E. Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ Landau Book (A. Barak, E. Mazuz, eds., 1995, vol. 2) 983, at p. 1018; also see and cf. A. Stein, ‘Coincidence and Theory in Dispensing Justice,’ 29 Hebrew Univ. L. Rev. (Mishpatim) (1998) 5, at pp. 6-8; on the development in understanding the reasons for the ‘free will’ test in English common law before the enactment of the Police and Criminal Evidence Act 1984, see: Cross and Tapper on Evidence (1995), supra, at pp. 666-668).

25. Since the end of the 1970s, three interpretive approaches can be seen with regard to the reasons for the rule of inadmissibility in s. 12 of the Evidence Ordinance. As we shall clarify below, the three interpretive approaches are based, to a greater or lesser degree, on the reason concerning the safeguarding of the credibility of confessions; the difference between the approaches is reflected in the weight given to the purpose concerning protection of the rights of a person under interrogation.

According to one interpretive approach, whose main proponent in case law was President Landau, improper interrogation methods such as physical violence, threats, unfair inducements and promises or exerting prohibited psychological pressure on the accused in his interrogation automatically make his confession inadmissible in view of the serious violation of his dignity as a human being and of his physical and emotional integrity. In order to protect the rights of the person under interrogation, the provisions of s. 12 of the Evidence Ordinance establish an irrebuttable presumption according to which a confession that was obtained by improper methods as aforesaid is not a true confession; therefore it should be declared inadmissible in limine, without any need to consider the degree to which the improper interrogation methods influenced the free will of the person under interrogation de facto and the truth of the content of the confession. According to this approach, the question whether we should be concerned with regard to the truth of a confession that was obtained by improper methods is, therefore, a question of law or at least a mixed question of law and fact (see the remarks of President Landau in CrimA 347/75 Hirsch v. State of Israel [34], at p. 200).

Alongside the aforesaid approach, another interpretive approach has been expressed in the case law of this court. The chief proponent of this approach was Justice H.H. Cohn. According to this approach, even when there are interrogation methods that are improper in the extreme, the court should examine, from a factual point of view, the circumstances of each case on its merits, in order to determine whether the improper methods were sufficient to undermine the free will of the accused de facto when making his confession, in which case it will be declared inadmissible because of the concern that it may be a false confession, or whether, notwithstanding the adoption of the aforesaid interrogation methods, the accused retained the ability to make a free choice with regard to making his confession, in which case the evidence will be admissible, and the trial will focus on the question of its weight as evidence. According to this interpretive approach, the illegality in obtaining the confession does not in itself make it inadmissible, as long as the accused was not deprived of his free will in making his confession and there is no concern with regard to the truth of its content. In the words of Justice H.H. Cohn: ‘… the accused’s confession is one thing, and the abuse by his interrogators another’ (CrimA 369/78 Abu-Madijem v. State of Israel [35], at p. 381). This interpretive approach regards the main purpose of the inadmissibility rule provided in s. 12 of the Evidence Ordinance as safeguarding the credibility of the confessions made in an interrogation (see also the remarks of President Y. Kahan in CrimA 115/82 Muadi v. State of Israel [36], at p. 249; see also the opinion of Justice H.H. Cohn in CrimA 183/78 Abu-Midjem v. State of Israel [37]).

The essence of the difference between the two interpretive approaches was discussed by Justice H.H. Cohn as follows:

‘… In practice we are deliberating upon the various facets of the question of the proper judicial policy that this court should adopt. On the one hand, it is our duty to protect human dignity so that it is not harmed by those who abuse it, and to do everything in out power to restrain the police interrogators from obtaining the goal of their interrogation by improper and despicable methods; on the other hand, it is our duty to fight crime, which is ever on the increase and is destroying everything good in this country, and to prevent public safety being abandoned to the villainies of violent criminals merely because they were hit by police interrogators. It seems to me that the difference between us is merely one of priorities: according to my esteemed colleague [President M. Landau] the protection of human dignity and basic rights takes precedence, whereas according to me the protection of public safety takes precedence’ (Abu-Midjem v. State of Israel [37], at pp. 546-547) (square parentheses supplied).

A third interpretive approach with regard to the provisions of s. 12 of the Evidence Ordinance was adopted in Muadi v. State of Israel [36], in the opinion of Justice Goldberg (at pp. 222-224). This interpretive approach constitutes a middle path between the other two interpretive approaches that we discussed above. According to this approach, in general, the illegality in itself does not render a confession inadmissible under s. 12 of the Evidence Ordinance. Therefore, the court should examine each case, from a factual perspective, on its merits in order to discover whether the improper interrogation method deprived the accused of his free will in making his confession; if it did, the confession will be inadmissible because of concerns with regard to the truth of its content. Notwithstanding, in cases where the level of impropriety amounted to a violation of the accused’s ‘humanity’ and reached ‘… a brutal and inhuman level of interrogation,’ then the confession should be declared inadmissible under s. 12 automatically, without considering the de facto effect of the improper interrogation method on the free will of the accused. This approach combines the various possible reasons for the inadmissibility rule in s. 12 of the Evidence Ordinance. It gives considerable weight to the purpose concerning the protection of the credibility of defendants’ confessions in order to protect public safety and fight crime. Nonetheless, in cases where use was made of interrogation methods that are so extremely wrong that they ‘violate the humanity’ of the person under interrogation, then this approach sees fit to attribute great weight to the right to human dignity and the integrity of body and mind, without examining whether in the circumstances of the case the accused was de facto deprived of his free will when making his confession. It would appear that this interpretive approach is the one accepted by the case law of this court since the judgment given in Muadi v. State of Israel [36] (see, for example, the opinion of Justice Halima in CrimA 154/85 Avroshami v. State of Israel [38]; the remarks of President Shamgar in Kozali v. State of Israel [30], at pp. 446-448; and the remarks of Vice-President Mazza in LCrimA 3268/02 Kozali v. State of Israel [39], at para. 28).

26. For the purposes of the case before us, it should be emphasized that according to the three interpretive approaches that we have discussed, a failure to give the statutory notice concerning the right to remain silent or the right to consult a lawyer does not in itself make a confession inadmissible under section 12 of the Evidence Ordinance. It should be noted that even according to the interpretive approach of President Landau, which emphasizes the protection of the defendant’s rights in his interrogation, a failure to give the statutory notice concerning the right to remain silent and the right to consult a lawyer does not amount to an improper interrogation method of the kind that necessarily leads to the inadmissibility of the confession. The position adopted in our case law is that the effect of the violation of the aforesaid rights on the free will of the person under interrogation and on the weight of the confession that he made should be examined in each case on its merits (for cases in which it was held that the absence of a statutory warning concerning the right to remain silent does not necessarily lead to the inadmissibility of a confession made in the interrogation, even though punctiliousness with regard to the warning of a suspect before taking his statement makes it easier for the court to determine the admissibility and weight of the confession, see Yassin v. Attorney-General [6], at p. 1556; CrimA 161/77 Zohar v. State of Israel [40], at p. 329; CrimA 450/82 Abu-Ayin Tripi v. State of Israel [41], at p. 603; Balhanis v. State of Israel [14], in the opinion of Justice Elon and the opinion of Justice Kedmi; for judgments in which it was held that an illegal violation of the right to consult a lawyer does not necessarily lead to the inadmissibility of a confession made in an interrogation, and that the effect of the violation of the aforesaid right on the free will of the person under interrogation and the weight of the confession that he made should be examined in each case on the merits, see Zakkai v. State of Israel [8], at pp. 64-65 and 68, per President Shamgar; Eisenman v. State of Israel [10], at p. 454, per Justice Goldberg; CrimA 6021/95 Gomez-Cardozo v. State of Israel [42], at pp. 784-785, per Justice M. Cheshin; Smirk v. State of Israel [18], at pp. 545-555; it should be noted that the cases in which a confession of a defendant was held to be inadmissible under the aforesaid s. 12 because a statutory notice was not given with regard to the right to remain silent or the right to consult a lawyer have been very few, and they were based on the special circumstances of each case. See, for example, CrimA 277/78 State of Israel v. Tuvyahu [43], at pp. 300-301, per Vice-President Landau; CrimA 611/80 Matosian v. State of Israel [44], at pp. 105-107, per President Shamgar).

In addition to the aforesaid, we should point out that s. 478 of the Military Jurisdiction Law provides a similar arrangement to the one determined in case law. It states as follows:

‘Confession of accused of his own free will      478. The fact that a statement of an accused that contains a confession was obtained other than in accordance with the rules stipulated in sections 266 to 272 [which include the duty to warn an accused about his right to remain silent in an interrogation] does not prevent the court martial from determining that the accused made the confession of his own free will.’

                (Square parentheses supplied).

It follows that the arrangement provided in s. 478 of the Military Jurisdiction Law is consistent with the interpretation given in case law to the provisions of s. 12 of the Evidence Ordinance, according to which a failure to give the statutory notice concerning the right to remain silent or the right to consult a lawyer does not, in itself, make a confession of an accused inadmissible; this depends on the circumstances of each case on its merits.

27. In the notice of appeal that they filed, counsel for the appellant argued that in view of the provisions of the Basic Law: Human Dignity and Liberty, the interpretation accepted by this court should be changed and it should be held that a failure to give the statutory warning with regard to the right to consult a lawyer should necessarily lead to a confession being inadmissible under s. 12 of the Evidence Ordinance.

Before we turn to examine the aforesaid argument, we should point out that over the years considerable criticism has been levelled at the ‘free will’ test both in Israel and in other countries that have adopted the aforesaid test from English common law. The main arguments made against it were that it is too artificial and vague a test for the purpose of deciding the question of the admissibility of confessions; that the reasons underlying it are not sufficiently clear; and that it is very difficult to examine the effect of improper interrogation methods on the free will of the person under interrogation in accordance with the circumstances of each case (see, for example, M. Landau, ‘Notes on the amended draft Evidence Law,’ 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 17, at p. 26; the Report of the Commission concerning Convictions based solely on a Confession, supra, at p. 12; see also LaFave and Israel, Criminal Procedure, supra, at pp. 298-299; Godsey, ‘Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination,’ supra, at pp. 469-471; M. Zander, The Police and Criminal Evidence Act 1984 (London, fourth edition, 2003), at pp. 312-313). And indeed, in England, the birthplace of the ‘free will’ test, as well as in Australia, where this test was adopted in case law from English common law, the legislature has seen fit to abandon the ‘free will’ test and replace it with other criteria for examining the admissibility of defendants’ confessions (see s. 76 of the Police and Criminal Evidence Act 1984 in England and ss. 84, 85 and 90 of the Uniform Evidence Acts 1995 in Australia).

In addition to the aforesaid, it should be noted that the federal courts in the United States adopted in their case law the ‘free will’ test from English common law, and in 1936 this test was applied to the states by means of the Fourteenth Amendment of the Constitution, which concerns the right to a fair trial (see Lafave and Israel, Criminal Procedure, supra, at p. 294). After the decision was made in Miranda v. Arizona [104], and its rules became the main test for declaring defendants’ confessions inadmissible, the ‘free will’ test continued to be used to examine the admissibility of confessions, even though the rules established in Miranda v. Arizona [104] were added to this test, according to which a failure to give a warning and notice with regard to the right to consult a lawyer became a ground for declaring a confession inadmissible. Recently the status of the ‘free will’ test has been significantly diminished as a satisfactory criterion for admissibility, in view of the decision of the Supreme Court of the United States in Dickerson v. United States [105]. That case considered the provision of federal law that stated that a confession of an accused is admissible as evidence if it is proved that it was made freely and willingly (18 U.S.C. 3501). The Supreme Court of the United States declared the aforesaid provision of statute void. It can be understood from the judgment of the court that the ‘free and willing’ test does not provide sufficient protection for the right not to incriminate oneself that is enshrined in the Fifth Amendment of the Constitution, and therefore it is incapable of replacing the rules set out in Miranda v. Arizona [104] with regard to the admissibility of defendants’ confessions. In view of the rule in Dickerson v. United States [105], it would appear that in the American legal system the status of the ‘free and willing’ test has been weakened even further as a sole test.

On the other hand, we should point out that in the Canadian legal system, which also adopted the ‘free and willing’ test in case law from the English common law, this test continues to be used even today in order to examine the admissibility of confessions made by defendants (see R. v. Oickle [107], which we shall discuss further below).

28. Unlike the common law countries where the ‘free and willing’ test was adopted in case law, in our legal system this test was enshrined ab initio in statute (see s. 9 of the Evidence Ordinance from the period of the British Mandate, which was replaced in 1971 by s. 12 of the Evidence Ordinance [New Version]). Over the years, several attempts were made to propose comprehensive legislative amendments to the Evidence Ordinance, within which framework it was suggested that the ‘free and willing’ test should be replaced by other criteria for examining the admissibility of defendants’ confessions. But these proposals did not become law (see s. 36 of the draft Evidence Law, 5741-1981, of Prof. U. Yadin, which was published in 34 HaPraklit (1981) 137, at p. 147; the two versions of s. 37 of the draft Evidence Law, 5745-1985, which were drafted by a commission chaired by President M. Landau and published in 16 Hebrew Univ. L. Rev. (Mishpatim) (1986) 3; the Report of the Commission concerning Convictions based solely on a Confession, at pp. 11-19, and the minority opinion of Prof. Kremnitzer, ibid., at pp. 58-64; see also various private draft laws for amending s. 12 of the Evidence Ordinance, in para. 13 supra).

In the case before us, we see no need to discuss the criticisms that have been levelled at the ‘free and willing’ test and the other tests that have been proposed over the years as replacements for this test. The premise for the continuation of our deliberations is that the provisions of s. 12 of the Evidence Ordinance remains on the statute books and its validity is undisputed. In view of this, the question before us is whether, after the enactment of the Basic Law: Human Dignity and Liberty, the interpretation given in case law to the aforesaid provision of law should be changed. Let us now turn to consider this question.

Interpretation of s. 12 of the Evidence Ordinance after the Basic Law

29. The question of the effect of the Basic Law: Human Dignity and Liberty on the interpretation of provisions of law enacted before the Basic Law came into force was considered extensively in the judgment of this court in CrimApp 537/95 Ganimat v. State of Israel [45] and in CrimFH 2316/95 Ganimat v. State of Israel [46]. The Basic Law: Human Dignity and Liberty expressly states that the previous law would remain valid, and therefore the provisions of s. 12 of the Evidence Ordinance remained in force even after the Basic Law was enacted (see s. 10 of the Basic Law). There is also no dispute that the old legislation should be interpreted in the spirit of the Basic Laws. An express statement to this effect was made in s. 10 of the Basic Law: Freedom of Occupation. It is also the interpretation required within the framework of the Basic Law: Human Dignity and Liberty. This was discussed by Justice M. Cheshin, who stated that ‘… the Basic Law ought to serve as an inspiration in interpretation. The legislature planted a bed of roses in the garden of law, and we smell its sweet aroma. We shall interpret laws of the past and the perfume of the Basic Law will inspire us’ (CrimFH 2316/95 Ganimat v. State of Israel [46], at p. 643; emphasis in the original).

In Ganimat v. State of Israel [46] there were admittedly different approaches with regard to the nature and scope of the interpretive effect of the Basic Law on the law that predated it (see the fundamental approach of President Barak in Ganimat v. State of Israel [46], at pp. 652-655, as compared with the position of Justice M. Cheshin, ibid. [46] at pp. 639-643; see also HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at pp. 780-781, per Justice M. Cheshin, and at pp. 786-787, per President Barak). But these differences in approach have no practical significance in the case before us, since even according to the law that prevailed before the Basic Law was enacted, it was possible to reach different interpretive conclusions than the ones that were accepted previously.

30. As stated, the rule of inadmissibility prescribed in s. 12 of the Evidence Ordinance was originally intended to safeguard the credibility of confessions made before persons in authority. Over the years, an interpretive development occurred with regard to the possible reasons underlying this rule. As I have made clear above, the purpose of protecting the rights of persons under interrogation was recognized in our case law before the Basic Laws concerning human rights were enacted (see the interpretive approach of President Landau and Justice Goldberg in para. 25 supra). The recognition of this purpose is consistent with the general interpretive premise in our legal system that every piece of legislation is intended to uphold and protect human rights. Notwithstanding, before the Basic Laws there was no unanimity in the case law of this court with regard to the question whether and in what circumstances the purpose concerning the protection of the rights of the person under interrogation should take precedence over the other purpose of safeguarding the credibility of defendants’ confessions. Even according to the interpretive approach that saw fit to attribute significant weight to the protection of the rights of a person under interrogation, the inadmissibility of the confession was based, inter alia, on an irrebuttable assumption that a confession obtained by improper methods is not a true confession (see the remarks of President Landau in Hirsch v. State of Israel [34], at p. 200; see also Muadi v. State of Israel [36], at pp. 223-224, per Justice Goldberg).

It would appear, therefore, that before the enactment of the Basic Laws, this court recognized the protection of the rights of the person under interrogation as a possible purpose of the rule of inadmissibility provided in s. 12 of the Evidence Ordinance; notwithstanding, the aforesaid purpose was not regarded as a main and independent purpose of the aforesaid s. 12, and the conceptual centre of gravity of the rule of inadmissibility under discussion was the concern that false confessions might be admitted in evidence (see in this regard, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at p. 157; M. Mountner, ‘The Decline of Formalism and the Rise of Values in Israeli Law,’ 17 Tel-Aviv University Law Review (Iyyunei Mishpat) (1993) 503, at p. 549).

31. When the Basic Law: Human Dignity and Liberty was enacted, the status of human rights enshrined therein was elevated to a constitutional super-legislative status. This created a change in our normative status. This change is reflected first and foremost in the possibility of judicial review of the constitutionality of laws that have been passed since the enactment of the Basic Laws. Notwithstanding, this in itself does not exhaust the whole scope of the effect of the aforesaid Basic Laws. The spirit and principles of the Basic Laws cast their light on all branches of law and influence basic concepts and basic outlooks that exist within their framework. Inter alia, as aforesaid, they influence the interpretation of legislation that was enacted before the Basic Laws concerning human rights.

In this context, it should be emphasized that from its earliest days this court recognized rights of the individual and took them into account within the framework of its interpretation of existing legislation. Even before the enactment of the Basic Laws concerning human rights this court held that ‘… the purpose of every piece of legislation is to uphold and safeguard basic rights and not to violate them’ (per Justice Barak in CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers Settlement Ltd [48], at p. 561). Notwithstanding, it appears that after the enactment of the Basic Laws, emphasis has been placed on the duty to take into account the rights enshrined in them within the framework of the interpretation of existing legislation, and in appropriate circumstances the weight that should be attributed to these rights even increased relative to competing values and public interests. This is the case in general, and it is particularly so in criminal law, which is closely bound to human dignity and liberty.

32. The Basic Law created an opportunity for a new interpretive perspective also with regard to the purpose of the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance. According to the spirit and principles of the Basic Law, the status of the purpose concerning the protection of the rights of the person under interrogation should be strengthened today, so that it becomes a main purpose that stands independently in order to render inadmissible a confession under s. 12 of the Evidence Ordinance. The significance of this is that in appropriate circumstances, of which details will be given below, a confession under the aforesaid s. 12 will be declared inadmissible because of the illegal violation of the rights of the person under interrogation, even when there is no concern with regard to the truth of the confession.

It should be noted that these remarks of mine do not negate the traditional purpose of the rule of inadmissibility under discussion, which concerns safeguarding the credibility of confessions. This purpose remains valid, as a part of the general purpose of the laws of evidence in criminal cases to discover the truth and prevent unsound convictions. Moreover, protecting the rights of the person under interrogation may lead to identifying interrogation methods that are likely to result in false confessions and miscarriages of justice. Notwithstanding, in view of the spirit and principles of the Basic Law, it is possible to determine that the interpretive centre of gravity has changed, and that today the protection of the rights of the person under interrogation is a main and independent purpose — not merely a secondary and ancillary one — for the inadmissibility of confessions under s. 12 of the Evidence Ordinance.

This background gives rise to the question of the rights of the person under interrogation that the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance is intended to protect. This question should be answered with regard to the language and wording of the aforesaid s. 12, with regard to the interpretation of the aforesaid section in case law as it has developed over the years, and in accordance with the spirit and principles of the Basic Law. Taking all of this into account, it appears that the rule of inadmissibility provided in s. 12 of the Evidence Ordinance was originally intended to protect two basic rights that have been recognized in our legal system for a long time, but the Basic Law: Human Dignity and Liberty has made an additional contribution to strengthening their status. The two rights are the right of the person under interrogation to be protected against physical and emotional harm, and the right to the autonomy of free will.

33. The right of an accused to be protected against physical and emotional harm and his right not to be degraded or humiliated more than is necessary as a result of the actual conducting of the interrogation were recognized in the case law of this court already before the enactment of the Basic Law as fundamental basic rights that were included in the ‘judicial charter of rights’ (see the remarks of Justice Barak in HCJ 355/79 Katlan v. Prisons Service [49], at p. 298, and the references cited there). As was noted above, the recognition of these rights affected the interpretation of s. 12 of the Evidence Ordinance before the Basic Law was enacted (see, for example, the interpretive approach of President Landau and Justice Goldberg in para. 25 supra). When the Basic Law: Human Dignity and Liberty was enacted, it was expressly provided therein that ‘There shall be no violation of the life, body and dignity of a human being, in as much as he is a human being’ and that ‘Every human being is entitled to protection for his life, his body and his dignity’ (ss. 2 and 4 of the Basic Law). In view of this, it would appear that there is ample support for the opinion that the right to be protected against physical and emotional harm and the right to be protected against acts of degradation and humiliation that significantly violate a person’s emotional wellbeing have risen to a constitutional super-legislative level as a result of the enactment of the Basic Law (see the remarks of Vice-President Elon in CrimA 3632/92 Gabbai v. State of Israel [50], at p. 490; see also Barak, Constitutional Interpretation, supra, at p. 420).

In view of the purpose concerning the protection of defendants’ rights in interrogations and the spirit of the Basic Law, the rule of inadmissibility enshrined in s. 12 of the Evidence Ordinance should be interpreted in such a way that improper interrogation methods that illegally violate the right of the person under interrogation to physical integrity or that humiliate and degrade him beyond what is required as a result of conducting the interrogation, will automatically lead to the inadmissibility of the confession, without it being necessary to examine the effect of the aforesaid interrogation methods on the truth of the confession made in the interrogation. This interpretation is closest in essence to the approach of Justice Goldberg in Muadi v. State of Israel [36], which it would appear is the approach that has been adopted in our case law. Notwithstanding, the nature and scope of the improper interrogation methods that will today be included within the scope of ‘a violation of the humanity of the person under interrogation’ is likely to be wider than in the past. This is because of the interpretive influence of the Basic Law and because of the conventional international law to which Israel is a party (see and cf. the opinion of President Barak in Public Committee Against Torture v. Government of Israel [26]; also see and cf. the minority opinion of Prof. Kremnitzer in the Report of the Commission concerning Convictions based solely on a Confession, at pp. 58-64).

In the circumstances of the appellant’s case, no claim was made that he was subjected to improper interrogation methods of the kind that are capable of humiliating and degrading the person under interrogation or of harming his physical or emotional wellbeing, and therefore this issue does not arise in the case before us.

34. In addition to the protection of the physical and emotional wellbeing of the person under interrogation, s. 12 of the Evidence Ordinance is intended, according to its express language, to protect the autonomy of the accused’s freedom of choice when making his confession in an interrogation (a ‘free and willing’ confession).

The right to the autonomy of free will was recognized in the case law of this court as a basic right of great importance before the Basic Laws of 1992 were enacted. Notwithstanding, it would appear that after the enactment of the Basic Law: Human Dignity and Liberty, the status of the aforesaid right has been strengthened, since it is derived directly from the conception of man as an end and not merely a means, and in view of the possible inclusion of the aforesaid right in the inner circle of the constitutional right to dignity and liberty. This was discussed by Vice-President Or in the following terms:

‘The recognition of the human right to autonomy is a basic element of our legal system, as a legal system of a democratic country… it constitutes one of the main reflections of the constitutional right of every person in Israel to dignity, which is enshrined in the Basic Law: Human Dignity and Liberty. Indeed, it has already been held that one of the expressions of the right to dignity is “… the freedom of choice of every person as a free being,” and that this reflects the approach that “every person… is a world in himself and an end in himself” (per President Barak in Barki Feta Humphries (Israel) Ltd v. State of Israel [47], in para. 3 of his opinion) … The significance of human dignity, in this context, was discussed by President Shamgar in CA 5942/92 A v. B [51], at p. 842, where he said that “Human dignity reflects, inter alia, the ability of a human being as such to formulate his personality freely, as he wishes, to reflect his ambitions and to choose the means of achieving them, to make his voluntary choices, not to be enslaved to arbitrary dictates, to be treated fairly by every authority and by every other individual, to enjoy equality between human beings…”.’ (CA 2781/93 Daaka v. Carmel Hospital [52], at p. 571 {462}).

(On the constitutional status of the right to autonomy of free will, see also the remarks of Justice Goldberg in CFH 2401/95 Nahmani v. Nahmani [53], at pp. 723-724 {389-390}; the remarks of Justice Rivlin in HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [54], at pp. 595-597; the remarks of Justice M. Cheshin in CrimApp 92/00 A v. State of Israel [55], at p. 250; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit (1993) 271, at pp. 277-279; H.H. Cohn, ‘The Values of a Jewish and Democratic State: Studies in the Basic Law: Human Dignity and Liberty,’ HaPraklit Jubilee Book 9 (1994), at p. 38; it should be noted that according to the approach of Y. Karp, the essence of the right to autonomy of free will — as opposed to the rights derived from it — is included within the framework of the inner circle of the constitutional right to dignity and liberty. See Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ 25 Hebrew Univ. L. Rev. (Mishpatim) 129 (1995), at p. 142).

In view of the aforesaid, a significant and serious violation of the autonomy of will and the freedom of choice of the defendant in making his confession in an interrogation will lead to the inadmissibility of the confession under the aforesaid s. 12. It should be emphasized that in these remarks of mine I am not saying that every violation of a protected right of the person under interrogation will necessarily lead to the inadmissibility of his confession under s. 12 of the Evidence Ordinance. Such an interpretation would excessively harm the competing values concerning the discovery of the truth, fighting crime and protecting public safety, and it cannot therefore be adopted. The wording and language of s. 12 of the Evidence Ordinance testify that the rule of inadmissibility enshrined therein is intended to protect against a significant violation of the autonomy of will of the accused when making his confession. Therefore a violation of the aforesaid kind will lead to the inadmissibility of a confession under the aforesaid s. 12, provided that this is required by the circumstances of each case on its merits. This interpretive conclusion is consistent with the case law of this court prior to the Basic Law, according to which in every case, according to its circumstances, the court should examine whether the use of the improper interrogation method led to the accused being deprived of free will and the ability to choose whether to make his confession (see the remarks of Justice Goldberg in Muadi v. State of Israel [36], at pp. 224-225; the remarks of President Y. Kahan, ibid. [36], at pp. 251-252; the remarks of Justice Elon, ibid. [36], at pp. 263-268). Notwithstanding, whereas in the past the justification given for the inadmissibility of a confession under s. 12 relied on the assumption that denying the freedom of choice of the person under interrogation necessarily led to a concern as to the truth of his confession, in accordance with the spirit of the Basic Law, it should be held that the protection of the freedom of will of the person under interrogation today constitutes a purpose in its own right and a weighty and independent reason for declaring the confession inadmissible under s. 12 of the Evidence Ordinance.

35. Furthermore it should be noted that the right to autonomy of free will is one of the main reasons for protecting the right not to incriminate oneself and the right to remain silent. Therefore there are those who think that the rule of inadmissibility provided in s. 12 of the Evidence Ordinance was intended to protect these rights and the right to consult a law that is ancillary thereto (see, for example, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at pp. 156 and 179; Y. Kedmi, On Evidence (2004, vol. 1), at p. 22). Admittedly, an illegal violation of the aforesaid rights within the framework of the interrogation process will constitute a weighty consideration when examining the admissibility of a confession under s. 12 of the Evidence Ordinance. This is because a violation of these rights may significantly violate the freedom of will and choice of the person under interrogation when making his confession. Thus, for example, there will be grounds to declare a confession inadmissible under s. 12 in circumstances where the accused was not warned of his right to remain silent and not to incriminate himself in the interrogation and of his right to consult a lawyer and he was not de facto aware of these rights, in such a way that he was deprived of the ability to chose whether to cooperate with his interrogators.

Nothing in the aforesaid derogates from the fact that the protection of the right to remain silent and the right to consult a lawyer are based on additional reasons to the protection of the autonomy of will of the person under interrogation. The balance between the various reasons underlying these rights assists in determining their boundaries and deciding the extent to which they are protected (for the various reasons for protecting a suspect’s right to remain silent and his right not to incriminate himself in his interrogation, see State of Israel v. Sharon [16], at p. 759, per Vice-President Or; see also B. Steinberg, ‘What Remains of the Warning about the Right to Remain Silent?’ 48 HaPraklit (2005) 163, at pp. 165-169; E. Gross, ‘The Right not to Incriminate Oneself — Is it really a Landmark in the Struggle of the Enlightened Man for Progress?’ 7 Mehkarei Mishpat (1989) 67, at pp. 172-181; Lafave and Israel, Criminal Procedure, supra, at p. 43; A.R. Amar and R.B. Lettow, ‘Fifth Amendment First Principles: The Self Incrimination Clause,’ 93 Mich. L. Rev. (1995) 857; for the various reasons underlying the protection of the right of a person under arrest to consult a lawyer, see para. 14 supra and the references cited there).

In view of the aforesaid, I am unable to accept the argument of counsel for the appellant that s. 12 of the Evidence Ordinance was intended to protect the full scope of the right to remain silent and the right to consult a lawyer, so that a violation thereof will necessarily lead to the inadmissibility of a confession under the aforesaid s. 12. As stated, according to the language and purpose of s. 12, it is intended to protect against a significant violation of the autonomy of free will of the person under interrogation. Consequently an illegal violation of the right to remain silent or the right to consult a lawyer will lead to the inadmissibility of a confession of an accused within the framework of the aforesaid s. 12 only when that violation is of such a nature and strength in the circumstances of the case that it seriously violates the freedom of choice and the autonomy of will of the person under interrogation in making his confession. Thus, for example, an illegal failure of the interrogators to give a warning about the right to remain silent in circumstances where it is proved that the accused was aware de facto of his right to remain silent will not lead to the inadmissibility of his confession under s. 12 of the Evidence Ordinance, since in these circumstances the ability of the accused to choose whether to cooperate with his interrogators is not significantly impaired (see the opinion of Justice Strasberg-Cohen in CrimA 5825/97 Shalom v. State of Israel [56], at pp. 944-945; also see and cf. the position of Prof. Bendor who is of the opinion that a confession should be inadmissible under s. 12 of the Evidence Ordinance only when there is a causal link between not giving the warning about the right to remain silent and the making of the confession in the interrogation; A. Bendor, ‘Inducing a Confession of an Accused and its Admissibility — Ends, Means and What Lies Between Them,’ 5 Pelilim (1996) 245, at pp. 265, 269).

36. In summary, even though I accept the position of counsel for the appellant that the provisions of s. 12 of the Evidence Ordinance should be interpreted in the spirit of the Basic Law, we should reject their argument that not giving a statutory warning with regard to the right to remain silent or the right to consult a lawyer necessarily leads to the inadmissibility of a confession under the aforesaid s. 12. Even though a violation of the aforesaid rights will constitute a weighty consideration within the framework of considering the admissibility of the confession, it is not a sole or decisive criterion. According to the language and purpose of the aforesaid s. 12, a confession should be declared inadmissible thereunder only when the illegal violation of the right to remain silent or the right to consult a lawyer created a significant and serious violation of the autonomy of will and freedom of choice of the accused when making his confession. The existence of such a violation will be examined in accordance with the circumstances of each case on its merits. In any case, it should be emphasized that a violation of the right to remain silent or the right to consult a lawyer in an interrogation, even in circumstances where it does not lead to the inadmissibility of the confession, is likely to detract from its weight as evidence.

37. With regard to the circumstances of the appellant’s case, there is no dispute between the parties before us that the military interrogator illegally refrained from giving notice of the right to consult a lawyer, and that in the circumstances of the case the aforesaid omission amounted to a violation of the actual right to consult a lawyer (see para. 19 supra). As I shall explain later, in the circumstances of this case a significant violation of the appellant’s right to consult a lawyer has been proved, inter alia in view of the determination of the court martial that the interrogator deliberately refrained from giving the statutory notice of the aforesaid right. Notwithstanding, for the purpose of examining the admissibility of the confession under discussion in accordance with s. 12 of the Evidence Ordinance, the question that should be addressed is whether the free choice of the appellant was impaired when he made his confession. In this matter, we must take into account that before his statement was taken, the appellant was warned that he had the right to remain silent in his interrogation, according to the wording of the warning set out in s. 267 of the Military Jurisdiction Law. The appellant was aware, therefore, of the right to remain silent when his statement was taken. It should also be noted that after the appellant consulted the military defence lawyer, he chose to respond to the questions of the interrogator when he made his second statement (prosecution exhibit 5). In the circumstances, it cannot be said that the failure to give the statutory notice of the right to consult a lawyer led to a significant violation of the appellant’s autonomy of will and freedom of choice when making his first confession, such that it requires the inadmissibility of the confession under the aforesaid s. 12 (see and cf. CrimA 5203/98 Hasson v. State of Israel [57], at p. 283, where Justice Naor held that in view of the fact that the accused in that case was warned before the interrogation of his right to remain silent and in view of the other circumstances of the case, the fact that his right to consult with a lawyer was violated did not render his confession inadmissible under s. 12 of the Evidence Ordinance).

It follows that even though in the case of the appellant it has been proved that there was an illegal violation of the right to consult a lawyer because of the failure to warn him of the aforesaid right before taking his statement, it should not be said that in the circumstances of the case there was a significant violation of the right to autonomy of will and freedom of choice within the framework of the rule of inadmissibility provided in the aforesaid s. 12. For this reason, we should not intervene in the decision of both instances of the court martial not to declare the appellant’s confession inadmissible under s. 12 of the Evidence Ordinance.

Notwithstanding, our deliberations do not end here. A separate question that should be considered is whether the failure to give the statutory notice with regard to the appellant’s right to consult a lawyer should lead to the inadmissibility of his confession on the basis of a case law doctrine that illegally obtained evidence should be inadmissible, outside the framework of the aforesaid s. 12, as argued by counsel for the appellant. Let us now turn to examine this issue.

A case law doctrine that illegally obtained evidence should be inadmissible in criminal proceedings

38. As I stated at the outset, one of the main arguments raised within the framework of the notice of appeal filed before us was that even if s. 12 of the Evidence Ordinance does not render the confession of the appellant inadmissible, it should be declared inadmissible by virtue of a case law doctrine that illegally obtained evidence is inadmissible. According to this argument, this court should adopt a judicial doctrine of inadmissibility to this effect in view of the Basic Law: Human Dignity and Liberty. It should immediately be stated that this doctrine is not restricted to the confessions of an accused, and its application is a general one, to all types of evidence in the criminal proceeding that were obtained illegally by the law enforcement authorities. Later we shall address at length the question of what is evidence that has been obtained ‘illegally.’ At this stage of the deliberation and without exhausting the issue, we will point out that we are speaking of evidence that was obtained by investigation methods that are contrary to a provision of statute, regulation or binding procedure, or by means of an illegal violation of a protected basic right.

The argument concerning the need to adopt a case law doctrine of inadmissibility raises several complex questions that should be addressed. The order of addressing these questions will be as follows: first we will discuss the legal position with regard to the admissibility of illegally obtained evidence before the Basic Laws were enacted. Against this background, we will turn to examine the question whether in the new normative reality that was created by the enactment of the Basic Law: Human Dignity and Liberty, there is a basis for adopting a case law doctrine that evidence should be inadmissible because of the way in which it was obtained. For the reasons that will be set out below, our answer to this question is yes. In view of this, we will turn to examine the nature, scope and framework of this doctrine, and to determine the proper criteria for declaring evidence inadmissible thereunder. We will end our deliberations by applying the conditions of this doctrine to the circumstances of the appellant’s case.

The admissibility of illegally obtained evidence before the Basic Laws

39. The starting point for our discussion of the question of the admissibility of illegally obtained evidence lies in the fact that the Israeli legislature has refrained from making any general and express legislative arrangement on this issue. Notwithstanding, in three special provisions of law the legislature has provided concrete rules of inadmissibility with regard to evidence that was obtained in an improper manner: the first is s. 12 of the Evidence Ordinance that we have discussed extensively above. The second is s. 13 of the Eavesdropping Law, 5739-1979. Originally this provision of statute provided an absolute rule of inadmissibility for statements that were recorded by means of eavesdropping carried out contrary to the provisions of the law. In 1995 s. 13 was amended in a manner that gave the court discretion not to declare such evidence inadmissible, on the conditions and in the circumstances set out in the section. Section 13(a) in its amended wording provides as follows:

‘Evidence        13. (a) Statements recorded by means of an eavesdropping contrary to the provisions of this law… shall not be admissible as evidence in court, except in one of the two following cases:

                (1) In a criminal proceeding concerning an offence under this law;

                (2) In a criminal proceeding concerning a serious felony, if the court declared it admissible after it was persuaded, for special reasons of which it shall give details, that in the circumstances of the case the need to discover the truth outweighs the need to protect privacy. An eavesdropping made illegally by someone who is entitled to receive a permit for eavesdropping shall not be admissible as evidence under this paragraph unless it was made by mistake in good faith, in an apparent use of lawful permission.’

A third statutory rule of inadmissibility is provided in s. 32 of the Protection of Privacy Law, 5741-1981, according to which: ‘Material obtained by means of a violation of privacy shall be inadmissible as evidence in court, without the consent of the injured party, unless the court permits the use of the material, for reasons that shall be recorded, or if the person who committed the violation, who is a party to the proceeding, has a defence or exemption under this law.’ The aforesaid s. 32 therefore provides that, as a rule, evidence that was obtained by means of an illegal violation of privacy shall be inadmissible. Notwithstanding, the rule of inadmissibility is a relative one in the sense that it allows such evidence to be admitted, if the injured party gave his consent thereto, if the court, at its discretion, allowed the evidence to be admitted for reasons that shall be recorded, or when the person who committed the violation has a defence or exemption under the law.

Case law has accepted the opinion that the rules of inadmissibility enshrined in the aforesaid provisions of statute are rare exceptions in our legal system. In the words of Justice Elon: ‘… these provisions are exceptions that are incapable of changing the rule…’ (Muadi v. State of Israel [36], at p. 262; see also CrimA 480/85 Kurtam v. State of Israel [58], at p. 691, per Justice Bach; HCJ 3815/90 Gilat v. Minister of Police [59], at p. 420, per Justice S. Levin; and CrimA 1302/92 State of Israel v. Nahmias [60], at p. 321, per Justice Bach, and at p. 341, per Justice Mazza).

The outlook that was accepted in the case law of this court before the Basic Laws was that as long as statute does not provide otherwise, relevant evidence should not be declared inadmissible because of the illegality of the means used to obtain it. The case law in this regard was summarized by Justice Elon in the following terms: ‘In the Israeli legal system, it is accepted and undisputed case law that evidence that is valid and credible in itself but that was obtained by improper and illegal methods, is admissible…’ (Muadi v. State of Israel [36], at p. 262; for similar remarks, see also CrimA 476/79 Boulos v. State of Israel [61], at pp. 801-802; per Justice Shamgar; CrimA 16/82 Malka v. State of Israel [62], at pp. 317-320. per Justice M. Bejski; FH 9/83 Appeals Court Martial v. Vaknin [63], at p. 855, per Vice-President Elon). According to this approach, illegality is a consideration with regard to determining the weight of the evidence, and in exceptional cases it may reduce its weight to nil; but it is incapable of affecting the admissibility of the evidence.

The aforesaid case law rule of this court was consistent in the main with the traditional approach adopted by English common law, according to which illegality in obtaining evidence does not make the evidence inadmissible but merely affects its weight. Admittedly, in the 1950s English law adopted a case law rule that authorized the courts to declare evidence inadmissible at their discretion, in circumstances where admitting it would be unfair to the accused (see Kuruma v. R. [110], at p. 204). But the aforesaid ruling was almost never applied in English case law, and the discretion to declare evidence inadmissible within this framework was exercised in rare and exceptional cases only (see in this regard C. Tapper, Cross and Tapper on Evidence (ninth edition, 1999), at p. 498; see also Boulos v. State of Israel [61], at pp. 800-802, per President Shamgar; Vaknin v. Appeals Court Martial [5], at pp. 401-402, per Justice Bach; and Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at pp. 988-990).

40. The case law rule whereby the manner of obtaining the evidence does not affect its admissibility is based mainly on two reasons. First, our case law is governed by the outlook that the main purpose of the rules of evidence in criminal proceedings is to discover the factual truth in order to convict the guilty and acquit the innocent (see, for example, the remarks of Justice Barak in CrimA 951/80 Kanir v. State of Israel [64], at pp. 516-517; the remarks of Justice Or in State of Israel v. Mesika [25], at p. 681). It should be emphasized that discovering the factual truth was not always regarded as the sole or absolute purpose of the rules of evidence in criminal proceedings, since there exist competing interests and values that we shall discuss later. Nonetheless, according to the approach that was accepted by us before the enactment of the Basic Laws, the weight of the purpose concerning the discovery of the factual truth was considerable, such that any departure from it in order to protect competing values and interests was regarded as an exception, which some authorities thought required express legislation (see the remarks of Justice Elon in Muadi v. State of Israel [36], at pp. 259-262). Consequently, the approach adopted in case law was that, as a rule, information that was relevant to determining innocence or guilt should not be withheld from the court, and therefore the manner of obtaining evidence does not affect its admissibility, but only its weight.

Second, until the 1980s our rules of evidence were characterized by formal rules of admissibility that were intended to safeguard the credibility of the content of evidence presented to the court. The hearsay evidence rule was one of the main rules of inadmissibility in this context, and it was originally introduced into our legal system from English common law. From the 1980s onward, a new trend began to develop in our legal system, in parallel to changes that also took place in the Anglo-American legal systems, systems whose tradition is similar to ours. The essence of this trend was a reduction in the formal exceptions to the admissibility of evidence, in order to give the court the power to determine their credibility and weight. According to this approach, the curtailing of the rules of admissibility was needed in order to discover the truth and do justice, since it could allow the flow of relevant information to the court that would consider the credibility of the information in the circumstances of each case on its merits. The aforesaid trend was given expression in legislation with the enactment of s. 10A of the Evidence Ordinance, which provides a statutory exception to the rule against hearsay evidence; it was also expressed in case law that restricted, by means of interpretation, the scope of the various rules of inadmissibility in our legal system. This was discussed by President Shamgar, who said that:

‘The trend that is expressed in the development of law as reflected in Israeli statute and case law, like that in other countries where the Anglo-American outlook prevails, is to restrict the exceptions to the admissibility of evidence in order to give the court the power to decide the weight of the evidence. In other words, instead of a barrier of inadmissibility, whose scope is gradually being reduced, the Anglo-American legal world has developed an approach that prefers an objective examination of every relevant piece of evidence by the court. Formalistic exceptions are replaced by an examination of trustworthiness. In this way the Anglo-American and continental legal systems have drawn closer together’ (CrimFH 4390/91 State of Israel v. Haj Yihya [65], at p. 671).

This approach has particular strength in the Israeli legal system, which is based on professional verdicts rather than decisions made by juries. Instead of admissibility barriers, preference has therefore been given to an approach that favours a substantive examination of every relevant piece of evidence by the court. This approach is consistent with the trend in all branches of our legal system and it reflects a transition from strict formal rules to giving weight to basic principles in the law, by exercising judicial discretion. This trend has been described in case law and professional literature as a changeover ‘from formalism and strict rules to flexibility and judicial discretion’ (see the remarks of Justice Cheshin in CrimA 6147/92 State of Israel v. Cohen [66], at p. 80; and see also FH 23/85 State of Israel v. Tubul [67], at pp. 331-340, per President Shamgar, and at p. 354, per Justice Barak; the remarks of Justice Kedmi in CA 703/86 Bernstein v. Attorney-General [68], at pp. 532-533; the remarks of Justice Or in State of Israel v. Mesika [25], at pp. 680-681 and the references cited there; my remarks in CA 2515/94 Levy v. Haifa Municipality [69], at pp. 730-733; the remarks of Justice Strasberg-Cohen in HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at pp. 760-761). The trend of abandoning rules of admissibility in favour of a substantive assessment of evidence also in some degree affected the fact that this court adopted its fundamental position that the way in which evidence is obtained is unrelated to the question of its admissibility.

41. In addition, we should point out than the central status of the value of discovering the truth and the trend of abandoning rules of admissibility in favour of an examination of the evidence according to its nature and weight have also had an effect on the interpretive trend for the rules of inadmissibility provided in statute. With regard to the interpretation of s. 12 of the Evidence Ordinance, before the Basic Laws this court gave significant interpretive weight to the purpose concerning the safeguarding of the credibility of defendants’ confessions as a part of its outlook that discovering the truth is a central value in our legal system (see para. 30 supra). With regard to the Eavesdropping Law and the Protection of Privacy Law, the interpretation given to the provisions of the laws that introduced rules of inadmissibility limited the scope of these rules in a way that was consistent with the trend of restricting admissibility barriers for evidence in our legal system (see, for example, Appeals Court Martial v. Vaknin [63], and Kurtam v. State of Israel [58], with regard to the interpretation of the expression ‘other harassment’ in s. 2 of the Protection of Privacy Law; see also: Gilat v. Minister of Police [59], with regard to the interpretation of the provisions of the Eavesdropping Law).

42. In summary, the Israeli legislature refrained from providing a complete and express arrangement with regard to the question of the admissibility of illegally obtained evidence. Before the Basic Laws, the position that was adopted in case law was that in general, as long as there was no contrary provision in statute, illegality in the obtaining of a relevant piece of evidence did not affect the question of its admissibility but only its weight. This position was based on the legal tradition that we inherited from English common law, and also on reasons of reducing admissibility barriers in our legal system and giving significant weight to the purpose of discovering the truth in criminal proceedings.

In summary of this part of my opinion, it should be noted that the interpretive position of this court, before the Basic Laws, with regard to the admissibility of evidence that was obtained illegally was based on reasons of judicial policy and not on reasons of jurisdiction. There are a considerable number of judgments in which the court warned that if the illegality in obtaining evidence continued, them ‘… it is possible that we ought to consider a change in case law and decide that an illegally obtained confession should be inadmissible…’ (per Justice Etzioni in Zohar v. State of Israel [40], at p. 329). Justice Barak also addressed this matter in CrimA 260/78 Saliman v. Attorney-General [71], when he said that:

‘We are aware of the many difficulties facing the police in their war against crime, but every care must be taken that in this war the police do not cross the line, with the result that those who are acting in the name of the law are breaking it. It should be emphasized that the system practised in Israel is not the only possible system that can be adopted, and we have the power to change it’ (ibid. [71], at p. 207; emphasis supplied; see also in this context the remarks of Justice H.H. Cohn in Abu-Madijem v. State of Israel [35], at pp. 381-383).

These remarks are capable of showing that this court has always regarded itself as having the power to determine that illegality in obtaining evidence may make it inadmissible; notwithstanding, in view of the reasons that we elucidated above, the court chose to refrain from making such a ruling, and in appropriate cases it thought it sufficient to reduce the weight of the evidence to nil as a result of the illegality that was involved in obtaining it (see, for example, CrimA 559/77 Meiri v. State of Israel [72], where the court attributed negligible weight to the results of a photograph identity parade that was conducted in the absence of defence counsel).

We should also point out that in a series of judgments it has been held that in our legal system we should not adopt the rules of inadmissibility of evidence practised in the American legal system, known as ‘the doctrine of the fruit of the poisonous tree’ (see, for example, Abu-Midjem v. State of Israel [37], at pp. 537-538, per President Landau; Boulos v. State of Israel [61], at p. 801, per President Shamgar; Muadi v. State of Israel [36], at pp. 261-262, per Justice Elon; Appeals Court Martial v. Vaknin [63], at p. 852, per President Shamgar; CrimA 2286/91 State of Israel v. Eiloz [73], at p. 304, per President Shamgar; see also Smirk v. State of Israel [18], at p. 555). Later in our deliberations we will address the aforesaid American doctrine. But at this stage of our deliberations I see fit to point out that even though this court rejected in its case law the American rules of inadmissibility which are regarded in our legal system as a departure from the proper balance between the relevant interests and rights in the criminal proceeding, our case law has not ruled out the possibility of adopting other doctrines that render evidence that was obtained illegally inadmissible, which are of a different nature or have a different scope or framework from those of the American doctrine.

The conflicting interests in the issue of the admissibility of illegally obtained evidence, and the effect of the Basic Law on determining the proper point of balance between them

43. We must decide the question whether in view of the Basic Law: Human Dignity and Liberty, a change is required in the fundamental case law rule that the manner of obtaining a piece of evidence does not affect its admissibility. This issue is a part of a wider question that concerns the interpretive effect of the Basic Law: Human Dignity and Liberty on the rules of evidence that apply in criminal proceedings.

There is no dispute that the main purpose of the criminal proceeding is to determine innocence or guilt. In the words of Justice Barak: ‘The criminal proceeding is a harmonized and balanced set of norms that is intended to give effect to the substantive criminal law. The purpose of the criminal proceeding is to bring about the acquittal of the innocent and the conviction of the guilty’ (CrimA 639/79 Aflalo v. State of Israel [74], at p. 575; see also Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at p. 784, per President Barak). This purpose does not constitute a special interest of the individual who is facing trial but an interest of society as a whole. An erroneous acquittal, and certainly a false conviction, harm both the doing of justice and the appearance that justice is being done, and it may undermine public confidence in the ability of the judicial authority to do justice to the individual and to society.

44. Discovering the factual truth is a main method of doing substantive justice in criminal cases. Discovering the truth assists the court in determining innocence or guilt, and it thereby contributes to realizing the goals of the criminal proceeding, namely the fight against crime, protecting public safety and protecting the rights of actual or potential victims of crime. The need to further these values became stronger as a result of the increase in the level of crime and the degree of sophistication of the methods used by criminals in order to carry out criminal acts and hide them from the law enforcement authorities. In view of all this, discovery of the factual truth has always been the dominant purpose of the rules of evidence in the criminal proceeding (see and cf. A. Barak, ‘On Law, the Administration of Justice and Truth,’ 27 Hebrew Univ. L. Rev. (Mishpatim) (1996) 11).

Notwithstanding, discovery of the truth was never the absolute or sole purpose of the rules of evidence, since there exist competing interests and values that are also worthy of protection. Therefore the rules of evidence recognize the importance of the value of discovering the truth, but also the relative nature of this value. In the words of the English scholar, Prof. Ashworth, ‘No system of criminal justice values truth above all other considerations’ (A.J. Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Crim. L. Rev. 723, at pp. 732-733). Admittedly, the values and interests that affect the formulation of our rules of evidence are varied. Without purporting to exhaust them, we can mention that some of the rules of evidence practised in our legal system are based on reasons of legal policy, such as the rules of privilege whose purpose is to protect moral or professional undertakings or essential public interests, such as state security or public safety. There are rules of evidence that are based on grounds of convenience, speed and efficiency in legal procedure, such as presumptions in evidence. Many characteristics of our rules of evidence are founded on our legal tradition and the adversarial legal system practised in Israel, in which the task of bringing evidence is usually the duty of the litigants.

All of the values and interests that affect the formulation of our rules of evidence require a balancing act that is likely to lead to the creation of a disparity between reality as it is determined by the court (‘legal truth’) and reality as it truly is (‘factual truth’). The aforesaid disparity was addressed by Vice-President Elon in the following terms:

‘The legal system tries to adapt its principles, in so far as possible, to the truth of reality and the judicial authority implements its methods of investigation in order to reach, in so far as possible, the factual truth… but the factual truth is not always necessary the same as legal truth. These two truths are relative and not always identical, and, what is more, they are also not opposed to one another. For the legal system knows, and the judge is aware, that the point of origin, the methods of clarification, the nature of the norms and the rules of decision in the legal world and the work of administering justice are different from those in the research of historical fact, and from this they know and are aware that there are cases where different conclusions and “truths” are obtained by each of them’ (CA 1354/92 Attorney-General v. A [75], at pp. 744-745, and the references cited there; see also CA 61/84 Biazi v. Levy [76], at para. 1, per Justice Elon).

45. The values that affect the formulation of the rules of evidence also include protected human rights. The protection of human rights constitutes a purpose in itself in our legal system, and it affects the shaping of all branches of law, each according to its nature, purposes and characteristics. The rules of evidence in criminal proceedings are not an exception in this regard. Even before the Basic Laws, the rules of evidence in criminal proceedings were shaped by the purpose of protecting the rights of the accused.

The purpose of protecting the rights of the accused and the purpose of discovering the factual truth both serve the supreme purpose of the law that concerns the doing of justice and preventing miscarriages of justice in their broadest sense. Often the purpose of properly ascertaining the facts and discovering the truth is consistent with the purpose of protecting the rights of the accused. Thus, for example, the rule of evidence that the prosecution must prove guilt in criminal cases beyond all reasonable doubt and the rules that require, in certain circumstances, additional evidence in order to obtain a conviction in criminal cases serve both the purpose of discovering the truth and the protection of the right of the accused to dignity and liberty. In these contexts, the two aforesaid purposes supplement one another.

Notwithstanding the aforesaid, there are cases where the purpose of protecting the rights of the accused is directly in conflict with the purpose of discovering the truth. The clearest examples of this are the rules that prevent the court from admitting evidence that can indicate guilt, in order to protect the rights of the accused. In this context, we should point out that rules that make evidence inadmissible may be based on one of several possible reasons. There are rules of inadmissibility whose purpose is to prevent information being brought before the court because there is a concern with regard to its reliability. An example of this is the rule that hearsay evidence is inadmissible or the rule that the results of a lie-detector test are inadmissible for the purpose of a conviction in criminal cases. The purpose of these rules of inadmissibility is closely associated with the purpose of discovering the truth. On the other hand, it is possible to point to rules of inadmissibility that are based on reasons that are unassociated with the discovery of the truth but are based on competing social values and interests. In these cases, it is necessary to find the proper balance between the conflicting purposes in accordance with the relative weight of the different values underlying them (see N. Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ 24 Tel-Aviv University Law Review (Iyyunei Mishpat) (2001) 263, at pp. 264-265).

As we have said, the question of the admissibility of illegally obtained evidence creates a need to find a proper balance. The dilemma that arises in this context is to choose between all of the rights and interests that concern the public, in its widest sense. On the one hand, the interests of law enforcement, fighting crime and protecting public safety support the view that the admissibility of evidence should not be considered in accordance with the way it was obtained. Thereby, all of the relevant information will be presented to the court, which will be able to clarify the factual truth. The protection of the rights of the victims of the offence also supports a position where all the relevant evidence is brought before the court in order to ascertain the innocence or guilt of the accused. In view of all of the aforesaid interests, it may be argued that acquitting the accused merely because the investigation authorities obtained the evidence against him by improper methods amounts to a ‘windfall’ for the offender that he does not deserve. It may also be argued that such an acquittal comes at a high social price and it may lead to the undermining of public confidence in the criminal process, especially in circumstances where the defect that occurred in the investigation proceedings was technical and negligible. According to this approach, the criminal proceeding should focus on the question whether the charge attributed to the accused has been proved or not. Dealing with investigators who acted illegally in the manner that they obtained the evidence ought to be done in other ways — disciplinary, criminal or civil — and not by declaring illegally obtained evidence to be inadmissible.

On the other hand, no one disputes that the law enforcement authorities should act lawfully in carrying out their duties, while upholding the rights of persons under interrogation and the accused. Moreover, no one disputes that the end of law enforcement does not justify the means of obtaining incriminating evidence. ‘A freedom-seeking democracy is not prepared to allow investigators to use every method in order to disclose the truth’ (per President Barak in Public Committee Against Torture v. Government of Israel [26], at p. 835 {590}). In the words of Justice D. Levin: ‘The authority must not violate the rights to which the accused is entitled in order to bring about his conviction at any price, since the integrity of the judicial process is a essential precondition for the existence of a proper legal system’ (CrimA 2910/94 Yefet v. State of Israel [77], at p. 368). Admitting evidence that was obtained illegally by the law enforcement authorities may in certain cases harm crucial values in our legal system, including the administration of justice, safeguarding the fairness and integrity of the criminal proceeding and protecting the dignity and liberty of the accused. According to a broad conception of the work of dispensing justice, it is not restricted to discovering the truth and a correct application of the law to the facts of a specific case; the administration of justice is also based on the way in which the court reaches its decision in the circumstances of the case before it. Basing a conviction on evidence that was obtained in an illegal manner or by means of a substantial violation of a protected human right allows the investigation authorities to enjoy the fruits of their misdeed and it may create an incentive for improper acts of interrogation in the future. Admitting such evidence may be seen as the court giving approval to the aforesaid illegality and being an accessory, albeit after the event, to the improper conduct of the investigation authorities. Consequently, in certain circumstances admitting the evidence in court may prejudice the fairness and integrity of the judicial process. It is also likely to harm public confidence in the judicial system whose role is to protect the rights of the individual against illegal executive acts. It has been said in our case law, in another context, that: ‘The result of the proceeding is not a judicial decision suspended in mid-air. It also involves a decision with regard to the proper method of conducting the proceeding and protecting the rights of the litigants before the court… a serious procedural defect is to a large extent a serious substantive defect’ (per President Barak in Kuzali v. State of Israel [4], at p. 564). Therefore, the administration of justice in its broad sense and maintaining public confidence in the judicial system, protecting the rights of the accused and the fairness and integrity of the criminal proceeding, and the common interest of both the public and the individual in invalidating illegal investigation methods and deterring the investigative authority from employing similar methods in the future — all of these support the conclusion that, in appropriate circumstances, a significant breach of the law in obtaining the evidence will lead to it being inadmissible, even if there is no concern with regard to the truth of its content.

46. Striking a proper balance between all of the conflicting values involved in the question of the admissibility of illegally obtained evidence is not a simple task. As I shall explain below, before the Basic Laws case law balanced the competing interests by holding that in general, as long as statute did not provide otherwise, the manner of obtaining the evidence did not affect the admissibility of the evidence but only its weight. This gave decisive preference to the value of discovering the truth and the related interest of protecting the public.

The status given to basic human rights since the Basic Laws were enacted in 1992 has given greater weight to the duty to take protected human rights into account, and in appropriate circumstances the weight that should be attributed to them has also grown in comparison to competing values and interests. This is definitely the case in the field of criminal law that directly concerns the right of a person, whether he is accused of an offence or a victim of one, to dignity, liberty and the protection of his person and property. The remarks of President Barak in CrimApp 537/95 Ganimat v. State of Israel [45] in this regard are illuminating:

‘The innovation made by the enactment of the Basic Laws is not… the mere recognition of human rights and the need to maintain a balance between them and the needs of the public as a whole. The innovation made by the Basic Laws lies in the elevation of the normative level of human rights to a constitutional super-legislative status and in determining the elements of the proper balance… It follows that the innovation in the Basic Laws is not the mere existence of a balance. The innovation is in the location of the balancing point. Elevating the status of human rights on the one hand, and reducing the scope of the considerations that may violate them on the other, inherently create a new reciprocal relationship and new balancing points between human rights and violations thereof’ (ibid. [45], at p. 414; emphases supplied).

The spirit of the Basic Laws that affects the interpretive approach with regard to the proper balance between the various purposes of the rules of evidence in criminal cases also has a bearing on the question of the admissibility of illegally obtained evidence. It has already been said in our case law that ‘the Basic Law: Human Dignity and Liberty creates… a new margin for a fair trial within the existing system…’ (per Justice D. Levin in Yefet v. State of Israel [77], at p. 368). Within the framework of this new margin, there is a basis for the claim that in the enforcement of criminal law there are circumstances in which admitting evidence that was obtained by improper methods may undermine the fairness of the proceeding vis-à-vis the accused and the administration of justice in its broad meaning (see and cf. B. Okon and O. Shaham, ‘Due Process and a Judicial Stay of Proceedings,’ 3 HaMishpat (1996) 265, at p. 279). The question of the admissibility of illegally obtained evidence cannot be decided in accordance with the purpose of discovering the truth and fighting crime only. Even though this purpose is the main purpose of the criminal proceeding, today we need a more flexible balancing point that also takes into account the protected rights of the accused and the need to protect the fairness and integrity of the process. Adopting a flexible balancing point for this issue will befit the new normative reality that was created when the Basic Law was enacted, and it will give expression to our commitment to protect the rights of the individual against a violation thereof by the executive authorities. Admittedly, withholding relevant information from the court may lead in these circumstances to a distancing of the ‘legal truth’ from the ‘factual truth.’ But this result is a consequence of the fact that the administration of justice process does not stand alone but is a part of a complex social system of values, interests and rights that need to be balanced (see Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ supra, at p. 273).

Against this there will be those who argue that one can point to other legal measures — disciplinary, criminal or civil — in order to address any illegality that is involved in obtaining evidence by the law enforcement authorities. According to that argument, in view of the existence of alternative legal measures, there is no basis for declaring evidence inadmissible on account of the manner of obtaining it, thereby departing from the main value of discovering the factual truth. The response to this argument lies in the fact that the alternative measures are intended to provide relief for the violation that has already been inflicted on the rights of the accused when the evidence was obtained. But those measures do not prevent a disproportionate violation of the fairness and integrity of the criminal process when illegally obtained evidence is admitted in a trial. We will return to this at greater length below.

47. The conclusion that follows from our deliberations hitherto is that in the spirit of the Basic Laws we need to reconsider the question of the admissibility of illegally obtained evidence and adapt it to the new normative reality that created. A more flexible balancing point is required, which, in addition to seeking to realize the purpose of discovering the truth and fighting crime, will give weight to the protection of the accused’s rights as a factor in safeguarding the fairness of the criminal process and as a part of doing justice in the broad sense.

It should be emphasized that this approach does not include a determination that the protection of the rights of the accused has become the main purpose of the rules of evidence or that the purpose of discovering the truth has become less important. The latter purpose remains, as it was, the chief purpose of the rules of evidence in criminal law, for ascertaining innocence or guilt and for protecting public safety against ever increasing crime that has become more sophisticated and organized than in the past. Moreover, as we said above, the criminal proceeding does not focus only on the protection of the rights of suspects and defendants, but also on the protection of human dignity and the rights of the actual and potential victims of the offence. It has already been held in our case law that —

‘The Basic Law: Human Dignity and Liberty brings with it a written constitutional message for every individual in society, but this message is intended for all of society and not merely for the offenders in it. The actual and potential victim of the offence and every innocent citizen are entitled to protection of their dignity and liberty from fear, terror and injury, no less than the accused…’ (per President Shamgar in CrimFH Ganimat v. State of Israel [46], at p. 621; see also the remarks of President Barak, ibid., at pp. 651-652; see also s. 1 of the Rights of Victims of Crime, 5761-2001, which gives statutory expression to the purpose of protecting the human dignity of victims of offences).

Therefore, a more flexible balancing point between all of the competing values relevant to the question of the admissibility of illegally obtained evidence does not mean a blanket exclusion of every piece of evidence obtained in that manner. Moreover, even the Basic Laws did not give an absolute status to the human rights protected by them. The existence of a limitations clause that provides the balancing formula for a violation of constitutional rights shows that the rights protected in the Basic Law are relative and that there are cases where they must give way to competing values and interests. In this spirit, it should be determined that only in appropriate cases, which we shall address later, should the balance between the competing values lead to the exclusion of illegally obtained evidence. I have already said on another occasion that:

‘There is a question whether the right to consult a lawyer as complementary to the right to remain silent has acquired a constitutional status as a result of the Basic Law: Human Dignity and Liberty; an associated question is whether we should today adopt a rule that a confession that was obtained as a result of a breach of the aforesaid rights is inadmissible, and what should be the nature of that rule… these questions are not simple. Their complexity derives, inter alia, from the fact that the aforesaid rights, whether they have acquired a constitutional status or not, are not absolute; the right of the suspect and accused to remain silent, the right to consult a lawyer and the right to a fair trial are countered by important public interests, such as the fight against crime, the protection of state security and public safety, discovering the truth, and even the need to protect the rights of the victim of the offence who was harmed as a result of the criminal act. Therefore, a delicate and complex act of balancing is required between the variety of competing rights, values and interests, in accordance with the values of our legal system and in accordance with the framework of the limitations clause’ (Smirk v. State of Israel [18], at para. 14; emphasis supplied; see also in this regard: Hasson v. State of Israel [57], at p. 283, per Justice Naor; with regard to the need to find a proper balance between the protection of the rights of the suspect and the accused, on the one hand, and the public interest in the elimination of crime and the protection of the victims of crime, on the other, see also the remarks of Justice Strasberg-Cohen, in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at pp. 755-756).

As we shall explain at length below, the balance between the rights of the accused and the fairness of the criminal process, on the one hand, and the competing values including the value of discovering the truth, the fight against crime and the protection of public safety and the rights of the victims of crime, on the other, leads to the adoption of a doctrine of relative inadmissibility. This will give the court discretion to decide the question of the admissibility of illegally obtained evidence according to the circumstances of each case on its merits and according to criteria that we will discuss below.

48. Adopting such a rule of inadmissibility may prima facie lead to the undermining, to some extent, of the trend that has been seen in our legal system since the 1980s, which mainly involved a transition from rules of inadmissibility to a substantive evaluation of evidence. Notwithstanding, we are speaking of a development that is rooted in the normative infrastructure introduced by the Basic Law to strengthen the trend of having consideration for human rights. We are not speaking of a step that returns our case law back to the period of admissibility barriers that we knew in the past, but of an additional development that is based on the dynamic processes that have been taking place in recent decades. Whereas in the past the strict admissibility barriers were intended to withhold from the court ab initio any evidence whose credibility was in doubt, over the years a trend has developed of restricting the formal rules of admissibility and giving preference to a substantial examination of evidence according to its weight and credibility. As we said above, this recent trend was based, inter alia, on the outlook according to which, as a rule, bringing the relevant information before the court will allow it to form an independent impression of its credibility and probative value, and aid it in realizing the purpose of discovering the truth. This trend was enshrined in the approach that the discovery of the factual truth constitutes a central value in doing justice, and that we ought to aspire to as much consistency as possible between reality as determined by the court and reality as it truly is (see Barak, ‘On Law, the Administration of Justice and Truth,’ supra, at p. 13). The aforesaid aspiration remains unchanged, but in view of the normative reality that was created as a result of the Basic Laws, an additional development is now required in the direction of adopting a doctrine that allows evidence to be declared inadmissible; but this time we are not speaking of formal and strict rules of inadmissibility, of the kind that were practised in the past; according to our approach, the new doctrine of inadmissibility that we must introduce is flexible and based on the need to balance the value of discovering the truth against conflicting values that mainly concern the protection of the rights of the accused and protecting the fairness and integrity of the criminal process. A similar trend has been seen in other common law countries, including England, Canada and Australia. As we shall explain below, formal barriers of admissibility have also been restricted in these countries, and at the same time doctrines have been introduced that allow illegally obtained evidence to be declared inadmissible at the discretion of the court.

49. The current development in our legal system, which leads to the adoption of a doctrine that illegally obtained evidence is inadmissible, does not constitute an unforeseen revolution in the rules of evidence but is an additional step in a gradual process. Before the Basic Laws were adopted, the legislature saw fit to provide rules of inadmissibility in the Eavesdropping Law and in the Protection of Privacy Law with regard to evidence that was obtained by means of an illegal violation of the right to privacy. Moreover, over the years the court has discussed, on several occasions, the possibility that in the future the case law rule will be changed so that illegality involved in obtaining the evidence will make it inadmissible (see para. 42 supra and the references cited there). In view of all this, it is clear that even before the enactment of the Basic Laws concerning human rights, it was possible to change the case law rule according to which the manner in which evidence was obtained did not affect the question of its admissibility, although in practice this court refrained from making such a change. The enactment of the Basic Law: Human Dignity and Liberty has made it more urgent to reconsider the matter, and even provided ‘… an indication of the proper direction of the new development’ (CrimApp 537/95 Ganimat v. State of Israel [45], at p. 415, per President Barak).

Indeed, when the Basic Laws were enacted, trends could be seen in our case law that made the balancing point on the question of illegally obtained evidence more flexible, so that after the Basic Law: Human Dignity and Liberty was passed, there was a change in the interpretive approach of this court with regard to the rule of inadmissibility in s. 13 of the Eavesdropping Law. In the spirit of the Basic Law: Human Dignity and Liberty, this court saw fit to attribute greater weight than in the past to the protection of the constitutional right to privacy, even though this interpretive approach led to broadening of the scope of the rule of inadmissibility provided in the aforesaid s. 13 (see, for example, State of Israel v. Nahmias [60], at p. 331, per Justice Bach, and at pp. 352-353, per Vice-President Barak; see also in this regard the remarks of President Barak in CrimA 1668/98 Attorney-General v. President of Jerusalem District Court [2002] IsrSC 56(1) 625, at pp. 631-632). It should be noted that the aforesaid trend, which attributes greater weight than in the past to the duty to take the rights of the individual into account within the framework of the interpretation of the statutory rules of inadmissibility, is very much in accord with the interpretation that we proposed above with regard to the rule of inadmissibility provided in s. 12 of the Evidence Ordinance. It may be assumed that the aforesaid interpretive trend will also, in the future, influence the interpretation of the rule of inadmissibility provided in s. 32 of the Protection of Privacy Law, but we can leave the consideration of this matter until it is required (see, in this regard, Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at p. 1024, footnote 150; see also Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at pp. 79-83).

Moreover, in a series of cases decided after the enactment of the Basic Law, this court spoke positively of the possibility of adopting a relative doctrine of the inadmissibility that would allow illegally obtained evidence to be declared inadmissible in appropriate circumstances (see my remarks in Smirk v. State of Israel [18], at pp. 546 and 555; Hasson v. State of Israel [57], at p. 283, per Justice Naor; my remarks in CrimA 2180/02 Kassem v. State of Israel [79], at p. 654; and see the comments on these remarks in CrimA 9970/03 Deri v. State of Israel [80], at para. 6 of the opinion of President Barak; CrimApp 6689/01 Migdalani v. State of Israel [81], at pp. 176-177, per Justice Rivlin; HCJ 266/05 Pilant v. Gen. Efroni [82], at para. 3C of the opinion of Justice Rubinstein; for judgments of lower courts that support the adoption of such a doctrine of inadmissibility, see, for example, CrimC (Naz) 511/97 State of Israel v. Odeh [102]; CrimC (TA) 4598/01 State of Israel v. Ben-Shushan [103]). Support for adopting in our legal system a doctrine of inadmissibility of illegally obtained evidence has also been expressed in the academic literature of many scholars (see, in this regard, Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ supra, at p. 180; Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra; A. Barak, ‘The Constitutionalization of the Legal System following the Basic Laws and its Ramifications on (Substantive and Procedural) Criminal Law,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 5, at pp. 23-24); E. Harnon, ‘Illegally Obtained Evidence — Has the Legal Position Changed following the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 139; Zaltzman, ‘ “Factual Truth” and “Legal Truth” — Withholding Information from the Court to Protect Social Values,’ supra; Y. Shahar, ‘Criminal Procedure,’ Israel Law Yearbook 1992, 3; Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at pp. 79-83).

Thus we see that the adoption of a doctrine of inadmissibility for illegally obtained evidence does not constitute a revolution that is foreign to our legal system; rather it is a desirable and expected development. There is no doubt that the Basic Law paved the way for the required change in thinking that made it possible to adopt such a doctrine. Moreover, the provisions of the Basic Law may serve as a possible basis for enshrining this doctrine normatively, which I shall explain later.

Adopting a judicial doctrine of inadmissibility

50. The Chief Military Prosecutor and the attorney-general argued in their written summations that even if there is a basis for adopting a doctrine in our legal system that makes illegally obtained evidence inadmissible, it is not the role of this court to order this by means of judicial legislation. According to them, the case law that the manner of obtaining evidence does not affect the question of its admissibility is well-established case law of many years’ standing, and therefore any change to it ought to be made only by the legislature. It should be emphasized that the prosecution does not dispute the fact that case law does not constitute a ‘law’ within the meaning of this term in the retaining of laws provision set out in s. 10 of the Basic Law. There is therefore no dispute between the parties before us that the case law with regard to the admissibility of illegally obtained evidence may be changed in the spirit of the Basic Law. The main argument of the prosecution in this context is that even though this court is competent in principle to order a change of the aforesaid case law, it ought to refrain from doing so until the legislature has stated its express position on the subject.

It is possible that the doctrine of inadmissibility of illegally obtained evidence should have been introduced by the legislature. For this reason, we even waited before giving our judgment, in the hope that the matter would be regulated in legislation of the Knesset (see para. 13 supra). But since the draft laws on this matter have not matured into legislation from the time the appeal was filed until today, there is no alternative to making a judicial decision on the question whether the case law rule that has prevailed hitherto in our legal system until now, according to which the manner of obtaining evidence does not affect the question of its admissibility, should be changed.

In this context it should be emphasized that in view of the fact that the Evidence Ordinance does not constitute a complete and exhaustive codex of law, our rules of evidence are to a large extent the result of development by this court. As such, they constitute a part of the ‘Israeli version of common law’ (see LCA 1412/94 Hadassah Medical Organization v. Gilad [83], at p. 524, per President Barak; see also the remarks of President Shamgar in State of Israel v. Tubul [67], at pp. 318-319, and his remarks in MApp 298/86 Citrin v. Tel-Aviv District Disciplinary Tribunal of Bar Association [84], at p. 354). The approach that prevailed in our legal system until now, according to which the manner of obtaining evidence did not affect the question of its admissibility is also not the creation of the legislature but the product of the case law of this court. In view of this, this court has always had the power to change it.

Admittedly, as has been stated above, even before the enactment of the Basic Laws this court assumed that it had the power to change the case law rule under discussion, but it refrained from doing so for reasons of judicial policy. In view of the effect of the Basic Laws, a reconsideration is now required of the question of the admissibility of illegally obtained evidence, in order to make the case law rule in this matter consistent with the change that has occurred in our normative reality. Indeed, a change in case law, especially when it may affect the way in which the criminal trial is conducted and the rules of evidence that apply to it, is not made as a matter of course. ‘This approach derives from the respect that we feel towards our colleagues, whose learning can be seen from legal literature, from the need to ensure security and stability and from the recognition that the reasonable expectations of members of the public, which are based on the case law of the court, should be realized’ (per Justice Barak in HCJ 547/84 HaEmek Poultry Registered Agricultural Cooperative Society v. Ramat-Yishai Local Council [85], at p. 145). Great care is therefore required before this court changes its case law on the fundamental issue of the admissibility of illegally obtained evidence. Indeed, as we shall explain below, the case law adoption of the doctrine under discussion will be carried out with moderation and care, while giving discretion to the court to examine the question of the admissibility of illegally obtained evidence in each case according to its circumstances and in accordance with criteria that we shall address below. Moreover, our judgment does not provide a solution to all of the questions involved in the adoption of such a case law doctrine, and in any event these questions will be resolved in future case law, by moving forward carefully from case to case. Certainly the legislature will be able to have its say on the subject under discussion even after we have given our judgment, and it may determine the arrangement that it thinks fit, provided that this legislative arrangement ‘befits the values of the State of Israel, is intended for a proper purpose and is not excessive’ (s. 8 of the Basic Law: Human Dignity and Liberty). So we see that the adoption of a case law doctrine that excludes illegally obtained evidence should be made with the sensitivity and care that are required by the change in the case law rule that prevailed until now.

Notwithstanding, it should be emphasized that the need to preserve legal stability and certainty does not mean that case law should remain stagnant without any ability to change and adapt itself to the needs of the changing reality. This is especially the case when the change in case law is required in order to protect human rights and in order to safeguard the fairness of the criminal process and the administration of justice in their broad sense. This court has been committed, since its founding, to the protection of human rights. It is bound by the duty to uphold the rights protected in the Basic Laws and whatever is implied by this with regard to conducting the judicial process (see s. 11 of the Basic Law: Human Dignity and Liberty). In view of all this, the fact that after the Basic Laws the legislature has not seen fit to introduce an express statutory doctrine that allows illegally obtained evidence to be declared inadmissible in appropriate cases does not exempt the court from its duty to make its case law on the aforesaid issue consistent with the spirit of the Basic Laws, in order to create ‘normative coherence’ (A. Barak, A Judge in a Democracy (2004), at p. 63). This is especially the case in view of the fact that the court is responsible for the process of discovering the truth and dispensing justice in the criminal proceeding, and in view of its duty to achieve these purposes without any disproportionate violation of the accused’s rights.

In addition, we should point out that a comparative perspective of the position in other countries with a similar legal system to our own shows that some of them have adopted judicial doctrines according to which illegally obtained evidence is inadmissible. Thus, for example, in the United States the Supreme Court has developed rules that evidence obtained by means of a breach of constitutional rights is inadmissible. In England, the common law recognized, as long ago as 1955, the discretion of the court to declare evidence inadmissible if admitting it would be unfair to the accused. As I said in para. 39 above, this authority has hardly ever been used in practice, and the aforesaid doctrine was replaced in 1984 statutory inadmissibility provisions in the Police and Criminal Evidence Act, which we shall discuss later. In Australia the High Court adopted a case law doctrine that allowed illegally obtained evidence to be declared inadmissible at the discretion of the court (Bunning v. Cross [106]). Later the Uniform Evidence Acts 1995 were enacted, and these contain inadmissibility provisions that apply in the federal courts. We cannot rule out the possibility that a similar process will also occur in the future in Israel, such that the judicial recognition of a doctrine that illegally obtained evidence is inadmissible will lead to the assimilation of the aforesaid doctrine in a statute that is consistent with the provisions of the Basic Law.

51. The Chief Military Prosecutor and the attorney-general further argued in their written summations that in view of the absence of an express statutory arrangement that illegally obtained evidence is inadmissible, the existing statutory position in our legal system should be interpreted as indicating an intention on the part of the legislature to create a ‘negative arrangement’ on this issue. This argument was comprised of several secondary arguments that we will consider below.

It was argued before us that the three rules of inadmissibility set out in s. 12 of the Evidence Ordinance, s. 13 of the Eavesdropping Law and s. 32 of the Protection of Privacy Law should be interpreted as evidence of the existence of a negative legislative arrangement with regard to the adoption of a case law doctrine that illegally obtained evidence should be inadmissible; this argument cannot be accepted for several reasons. First, this court has always refrained from basing its case law on the question of the admissibility of illegally obtained evidence on this interpretation. In Vaknin v. Appeals Court Martial [5] it was expressly held that ‘from the provisions of s. 32 of the Protection of Privacy Law, which makes material that was obtained by means of a violation of privacy inadmissible as evidence in certain circumstances, nothing can be implied — either positively or negatively — with regard to the policy of the legislature with regard to the rule of inadmissibility in general’ (per Justice Barak, ibid., at p. 423; emphasis supplied). Second, from a purposive viewpoint, the aforesaid inadmissibility provisions should not be interpreted as evidence of an intention on the part of the legislature that a general doctrine that excludes illegally obtained evidence should not be adopted. Thus, for example, there is no logic in saying that eavesdropping without a lawful permit is more serious than obtaining other evidence by improper means (see, in this regard, Harnon, ‘Illegally Obtained Evidence: A Comparative Perspective,’ supra, at p. 1026). According to my approach, the statutory rules of inadmissibility may imply a fundamental position that is different from the one argued by the chief military prosecutor and the attorney-general, according to which in certain circumstances declaring evidence inadmissible because of illegality that was involved in obtaining it is a possible relief.

It should be stated that there is a separate question as to whether the concrete rules of inadmissibility provided in legislation create an exhaustive arrangement with regard to the admissibility of the evidence addressed therein. In other words, do the aforesaid rules prevent the application of a case law doctrine of inadmissibility of confessions of defendants and evidence obtained contrary to the provisions of the Eavesdropping Law and the Protection of Privacy Law? We shall address this question, which concerns the scope of the application of the case law doctrine, below.

52. The Chief Military Prosecutor and the attorney-general further stated before us that the Basic Law: Human Dignity and Liberty does not contain an express provision with regard to the inadmissibility of evidence that was obtained by means of an illegal breach of the rights protected within its framework. According to their argument, the silence of the Basic Law on this issue is very significant, and it indicates a negative arrangement that prevents the judicial adoption of a doctrine that illegally obtained evidence should be inadmissible.

This argument should be rejected. The Basic Laws that address human rights do not contain any provision concerning remedies or reliefs for a violation of the rights protected by them. The silence of the Basic Law on this issue should not be interpreted as a negative arrangement. It is well known that s. 1A of the Basic Law: Human Dignity and Liberty provides that the purpose of the Basic Law is ‘to protect human dignity and liberty, in order to enshrine in a Basic Law the values of the State of Israel as a Jewish and democratic state.’ Without reliefs for a breach of the rights protected within the framework of the Basic Law, the purpose of protecting these rights would be bereft of all significance. Admittedly, the role of formulating the reliefs for a breach of constitutional rights is first and foremost the duty of the Knesset. It has the proper tools for creating a comprehensive arrangement that will lead to a proper correlation between the violation of the constitutional right and the relief for it. Notwithstanding, in the absence of a statutory provision in this regard, the court is competent to formulate appropriate reliefs for a breach of the rights protected in the Basic Laws, by virtue of its positive duty to protect these rights and in accordance with the general outlook of our legal system that where there is a right, there is also a remedy (ubi ius ibi remedium) (see Barak, A Judge in a Democracy, supra, at pp. 237-238; Barak, Constitutional Interpretation, supra, at pp. 365 and 703; D. Barak-Erez, Constitutional Torts — The Pecuniary Protection of the Constitutional Right (1993), at p. 151; E. Gross, ‘Constitutional Remedies,’ 4 Mishpat uMimshal (1998) 433, at pp. 436-439).

Indeed, in several judgments this court has adopted the interpretive outlook that the aforesaid silence of the Basic Law does not constitute a negative arrangement with regard to the recognition of reliefs whose purpose is to protect the rights protected therein. Thus, for example, in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [86], at pp. 276, 415-419. it was held that the court is competent to declare an ordinary law void if it conflicts with the Basic Law, as a part of the outlook that legislation of the Knesset should be consistent with the general constitutional framework. The court held this even though the Basic Laws that address human rights do not contain an express provision — as opposed to an implied inference — with regard to the existence of a power to declare a statute void if it is inconsistent with their provisions. We should also point out that in Daaka v. Carmel Hospital [52] this court held, by a majority, that an illegal violation of a protected constitutional right (the right of the individual to autonomy of will) may constitute an independent compensatable head of damage within the framework of the tort of negligence. It may be assumed that in the future we will be called upon to determine the question of the recognition of additional relief for the breach of constitutional rights and the question of the manner in which such reliefs should be formulated: whether they should be derived directly from the Basic Law or whether they should find their place in areas of law that are external to them (with regard to the possible methods of formulating relief for the breach of constitutional rights, see Barak, Constitutional Interpretation, supra, at pp. 780-781; see also Barak-Erez, Constitutional Torts — The Pecuniary Protection of the Constitutional Right, supra, at pp. 149 et seq.; Gross, ‘Constitutional Remedies,’ supra, at pp. 439-440). In any case, for the purpose of the matter before us it is sufficient for us to determine that the Basic Law: Human Dignity and Liberty does not contain a negative arrangement with regard to the inadmissibility of illegally obtained evidence, and that, in the spirit of the provisions of the Basic Law, the adoption of such a doctrine is now required.

53. The Chief Military Prosecutor and the attorney-general, in their written summations, also addressed the Criminal Procedure (Enforcement Powers — Arrests) Law and the Criminal Procedure (Enforcement Powers — Search of Body of Suspect), 5756-1996, which were enacted after the Basic Laws came into force. According to their argument, the absence of an express provision of statute that allows evidence that was obtained in violation of the provisions of the aforesaid laws to be declared inadmissible indicates the existence of a negative arrangement with regard to the adoption of the doctrine under discussion.

This argument should also be rejected. The two aforesaid laws were intended to bring the arrest, detention and search powers into line with what is required by the provisions of the Basic Law: Human Dignity and Liberty. These laws indicate the change in outlook introduced by the Basic Law, with a greater emphasis than in the past on the protection of the rights of persons under interrogation and under arrest vis-à-vis the needs of the investigation in the sphere of criminal procedure. The aforesaid laws do not address at all the questions of evidence that arise from exercising the powers of arrest, detention and search, and in any case they do not imply anything, either positively or negatively, with regard to the position of the legislature on the adoption of a doctrine that illegally obtained evidence should be inadmissible.

Interim summary

54. The Basic Law: Human Dignity and Liberty elevated the human rights that are protected in it to a constitutional super-legislative status. A change was therefore made to our normative reality. This change is reflected first and foremost in the possibility of judicial review of the constitutionality of laws that were enacted after the Basic Laws concerning human rights came into force. Notwithstanding, this does not exhaust the whole scope of the effect of the aforesaid Basic Laws. The Basic Laws affect the manner in which executive discretion is exercised. The spirit and principles of the Basic Laws shed light with varying degrees of intensity on all branches of law and these affect the basic concepts and basic outlooks in them. Inter alia, they affect the interpretation of legislation that preceded the Basic Laws and ‘the Israeli version of common law’ that is developed in the case law of this court.

These normative changes require a reconsideration of the question of the admissibility of illegally obtained evidence. If in the past our legal system was guided by the case law ruling that the question of the admissibility of evidence is not considered in accordance with the manner in which it was obtained, since the interpretive centre of gravity in this respect was focused on the purpose of discovering the truth and fighting crime, today a more flexible balancing point is required, which takes into account the duty to protect the rights of the accused and the fairness and integrity of the criminal process. The proper balance between all of the competing values and interests on this question leads to the adoption of a relative doctrine of inadmissibility, within the framework of which the court will have discretion to decide the admissibility of illegally obtained evidence in the circumstances of each case on its merits, and in accordance with criteria that we shall discuss below.

The adoption of a doctrine that illegally obtained evidence is inadmissible and determining the strength and scope of such a doctrine is a matter worthy of legislation. Nonetheless, as aforesaid, our rules of evidence are largely the creation of case law, and in the absence of a negative legislative arrangement on this issue, the court has the duty to adapt the case law norm that it originally determined to the changing normative reality. For the reasons that we have discussed extensively above, the necessary conclusion is that the time has come to adopt a case law doctrine that, in appropriate circumstances, allows illegally obtained evidence to be declared inadmissible in our legal system.

Models of doctrines that exclude illegally obtained evidence — a comparative perspective

55. In order to determine the nature and framework of the doctrine under discussion, we should address three main questions that are interrelated, even though for the convenience of our deliberations we shall present them as separate questions: the first question concerns the main purpose of a doctrine that renders evidence inadmissible because of the manner in which it was obtained. In the case law of this court and also in other legal systems that are closely related to our legal system, different approaches have been expressed on this question. We shall focus our perspective on the three main approaches to the issue. According to one approach, the main purpose of excluding evidence because it was obtained illegally is an educational-deterrent purpose. According to this approach, the inadmissibility of evidence that was obtained in an improper way is intended mainly to educate the investigation authorities and deter them from adopting similar methods in the future, by making it impossible for the prosecution to benefit from the fruits of the illegality that was involved in obtaining the evidence. According to this approach, alternative methods of deterring the police from using improper investigative methods have been found to be ineffective, and it is therefore necessary to declare evidence that was obtained by such methods inadmissible.

According to a second approach, the exclusion of illegally obtained evidence is mainly intended to protect the rights of defendants in their interrogation. According to this approach, the violation of the protected rights of the person under interrogation by the law enforcement authorities gives rise to a justification for the evidence that was obtained as a result of that violation not being admissible, as a part of the protection of those rights. This approach has also been called the ‘protective approach.’

According to a third approach, the main emphasis in excluding illegally obtained evidence is placed on the moral aspect of the criminal proceeding. According to this approach, a judicial decision with regard to a conviction and sentencing of a person does not merely impose on him a legal sanction — imprisonment or a fine — but also a moral sanction that is reflected in the stigma that accompanies a criminal conviction. Making use of evidence that was obtained improperly by the law enforcement authorities may, in certain circumstances, taint the criminal conviction and undermine its legitimacy. Inter alia, the court may be regarded as sanctioning the defect and being a party, after the event, to the illegality in the behaviour of the investigators. Moreover, since the police investigation stage is a part of the complete system of administering justice, the admissibility of evidence in a trial when it was obtained by means of illegal interrogation methods may undermine the integrity of the judicial process and public confidence therein. According to this approach, the inadmissibility of the evidence is intended to protect values that mainly concern the integrity and fairness of the criminal process, and it is required as a part of the work of administering justice in its broad sense, and as a prerequisite for public confidence in the judicial system. At this point we should emphasize that there is a close relationship between the three aforesaid purposes, and that the formulation of the nature and framework of a doctrine concerning the inadmissibility of illegally obtained evidence will necessarily be affected by all of the purposes that we have discussed. Notwithstanding, the question before us is what is the primary or dominant purpose that ought to serve as the basis for such a doctrine.

 The second question that affects the formulation of the doctrine under discussion concerns the theoretical model on which the inadmissibility of the evidence should be based. In this regard, two main models can be identified. According to one model, the inadmissibility of the evidence is a remedy for an illegal violation of a protected right of the accused, which took place when the evidence was obtained. As we shall clarify later on, this theoretical model is consistent with the educational-deterrent approach, and it may also be consistent with the protective approach (hereafter: ‘the remedial model’). Another possible model is that the inadmissibility of the evidence is intended to prevent a future violation of a protected value, which is separate from the original right that was violated when the evidenced was obtained. Within the framework of this model, the inadmissibility of the evidence constitutes a prospective relief and its purpose is to prevent a violation of the protected social value when the evidence is admitted in the trial. As we shall explain below, this theoretical model is consistent with the approach that regards the protection of the criminal process, its integrity and fairness as the main purpose for declaring evidence inadmissible if it was obtained illegally. This theoretical model may also be consistent with the protective approach, especially in legal systems where the protected right that lies at the heart of the doctrine of inadmissibility is the right of the accused to a fair criminal trial (hereafter: ‘the preventative model’).

The third question that affects the formulation of a doctrine that excludes illegally obtained evidence concerns the degree of flexibility and the scope of discretion that the court has within the framework thereof. In this matter there are also two main possibilities: one possibility is an absolute doctrine of inadmissibility that holds that illegally obtained evidence may not be admitted in evidence. The second possibility is a relative doctrine of inadmissibility that leaves the court with discretion to decide the question of the admissibility of the evidence in view of the circumstances of the case that is before it.

A comparative look at other legal systems that are similar to our legal system shows that the aforesaid three questions led to the development of two main models of doctrines for the exclusion of illegally obtained evidence. One model is expressed in the exclusionary rules practised in the United States. The second model is the one practised in the other common law countries, including Canada, England, South Africa and Australia. Let us therefore turn to examine closely the inadmissibility doctrines practised in these countries, in order to obtain inspiration from the arrangements adopted by them on the matter under discussion. Obviously the comparative perspective does not bind us in formulating a doctrine that is appropriate for our legal system, and reference to legal systems that are fundamentally similar to our legal system is merely intended to broaden our horizons and benefit from the experience of those countries, in so far as this experience is relevant for the purposes of the legal position in Israel.

(a) The exclusionary rules practised in the United States

56. The rules of inadmissibility or the exclusionary rules as practised in the United States are based mainly on the exclusion of evidence that was obtained in contravention of the Fourth Amendment of the Constitution, which concerns the principles of searches and seizures, the Fifth Amendment of the Constitution, which concerns the protection of the right not to incriminate oneself and the right to due process, and the Sixth Amendment of the Constitution, which concerns the right to representation by counsel. The case law of the Supreme Court of the United States has adopted the approach that the aforesaid exclusionary rules were intended mainly for an educational-deterrent purposes, so that the police do not again in the future make use of investigation methods that are capable of violating the constitutional rights of the suspect or accused (see, in this regard, J. Stribopoulos, ‘Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate,’ 22 B. C. Int. & Comp. L. Rev. (1999) 77, at p. 101; R.H. Fallon and D. J. Meltzer, ‘New Law, Non-Retroactivity and Constitutional Remedies,’ 104 Harv. L. Rev. (1991) 1731, at p. 1810). The educational-deterrent purpose has had a dominant effect on the formulation of the American exclusionary rules. Inter alia, the aforesaid approach has led in the United States to the development of the ‘fruit of the poisonous tree’ theory. According to this theory, the court should declare inadmissible not only evidence that was obtained as a direct result of a violation of the constitutional right of the accused, but also any other evidence that was found directly or indirectly as a result of the information that was disclosed by that initial evidence; and this applies even when the credibility of the aforesaid items of evidence is not in doubt. This theory was mainly intended to deter investigators from making future use of improper investigation methods, by excluding all the evidence that was found as a result of the aforesaid illegality.

The theoretical model on which the exclusionary rules in the United States are based is the ‘remedial model.’ The exclusion of the evidence is a remedy for the violation of the constitutional right of the accused that took place when the evidence was obtained. The exclusion of the evidence is therefore intended to provide relief for a violation that was completed in the past, and it is not intended to prevent a future violation of a protected right or value. We should also point out that ab initio the American exclusionary rules were formulated as sweeping rules that did not leave the courts any discretion on the question of the admissibility of evidence that was obtained as a result of a violation of the Constitution. Notwithstanding, following major criticism that has been heard over the years with regard to the rigidity of the aforesaid exclusionary rules, the Supreme Court of the United States has recognized exceptions to these rules, which have relaxed, to some extent, the sweeping obligation mandated by them to exclude evidence. It should also be emphasized that the rigidity of the American exclusionary rules has had far-reaching consequences from the viewpoint of undermining the purpose of law enforcement, fighting crime and discovering the truth, and as a result of these social consequences, criticism has been levelled at these rules in the United States and elsewhere.

In concluding these remarks, we should point out that over the years there has been disagreement on the question whether the aforesaid exclusionary rules are enshrined in the United States Constitution or not. In Dickerson v. United States [105], which we discussed in para. 27 supra, the Supreme Court of the United States held, by a majority, that the exclusionary rule held in Miranda v. Arizona [104] had a constitutional basis and it could therefore not be nullified by an ordinary statute of Congress.

(b) The doctrines of inadmissibility practised in Canada, England, South Africa and Australia

57. Other common law countries, including Canada, England, Australia and South Africa, have adopted doctrines of inadmissibility that are more flexible and moderate, based on a different theoretical model from the one practised in the United States.

Section 24(2) of the Canadian Charter of Rights and Freedoms of 1982 provides as follows:

‘24. Enforcement of guaranteed rights and freedoms

(1)…

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.’

Section 24(2) of the Charter provides two conditions for the inadmissibility of evidence: first, it must be proved that the evidence was obtained in violation of a protected constitutional right under the Charter. Second, the court should exclude evidence as aforesaid if, taking into account all of the circumstances, it is proved that admitting the evidence in the court proceedings would lead to substantial harm to the administration of justice system.

Thus we see that, unlike the rigid exclusionary rules practised in the United States, under s. 24(2) of the Canadian Charter the obtaining of evidence in violation of a constitutional right does not in itself necessitate its inadmissibility; the evidence will be excluded only if admitting it in the trial will harm the process of administering justice. It should be emphasized in this context that the test enshrined in s. 24(2) of the Charter is not whether the illegal behaviour of the investigation authorities has resulted in harm to the administration of justice process, but whether admitting the evidence in a trial would create such harm. It follows that the inadmissibility is not a remedial relief for the improper conduct of the investigators when they obtained the evidence, but a relief that is intended to prevent substantial harm to the integrity and propriety of the administration of justice system if the evidence is admitted in the trial (‘the preventative model’). It should also be emphasized that s. 24(2) refrains from establishing a presumption with regard to the inadmissibility of illegally obtained evidence, and the matter is left to the discretion of the courts according to criteria that have been determined in the case law of the Supreme Court of Canada. At this stage we should point out that one of the main considerations in this context is whether admitting the evidence in the trial will prejudice the fairness of the criminal trial (see R.J. Sharpe and K.E. Swinton, The Charter of Rights and Freedoms (1998), at pp. 178-179).

Taking all of the aforesaid into account, the accepted view in case law and academic literature in Canada is that the main purpose of the doctrine of inadmissibility that is enshrined in s. 24(2) of the Charter is not to deter or educate the police, but to protect the fairness of the proceedings and to uphold the integrity and status of the administration of justice system. Deterring the investigation authorities from using illegal investigation methods in the future constitutes a desirable side-effect of excluding the evidence, but it is not one of its main purposes (see, in this regard, R. v. Collins [108], at p. 281; P.W. Hogg, Constitutional Law of Canada (student edition, 2005), at p. 911).

58. With regard to England, the doctrine practised there for the inadmissibility of illegally obtained evidence is set out in the provisions of s. 78(1) of the Police and Criminal Evidence Act 1984 (PACE), which is an ordinary statue of Parliament. Section 78(1) provides:

‘78. Exclusion of unfair evidence

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’

The premise on which s. 78(1) of PACE is based is that all relevant evidence is admissible in a trial. Nonetheless, according to the aforesaid s. 78(1), the court is competent to refuse to allow evidence that was presented to it by the prosecution, after considering the following issues: first, the court should consider all the circumstances of the case, including the circumstances of obtaining the evidence. Second, the court needs to be persuaded that in the circumstances of the case admitting the evidence would have such a detrimental effect on the fairness of the proceedings that it should not be allowed.

Thus we see that the English legislature saw fit to adopt a relative doctrine of inadmissibility, which leaves the court discretion on the question of the inadmissibility of evidence that was obtained improperly. The main test in this regard is whether, in the circumstances of the case, admitting the evidence in the trial will seriously prejudice the fairness of the proceedings. Like s. 24(2) of the Canadian Charter, the inadmissibility of the evidence under s. 78(1) of the PACE is not intended to offer a remedial relief for the harm to the accused that was completed when the evidence was obtained, but its purpose is to prevent future harm to a protected value — the fairness of the criminal proceeding — when the evidence is admitted in the trial. Like in Canada, English case law has also determined that the main purpose of the inadmissibility of the evidence under the aforesaid s. 78(1) is not to educate the police or deter them from making use of improper investigation methods in the future, but to protect the fairness and integrity of the judicial system (see Zander, The Police and Criminal Evidence Act 1984, supra, at p. 347; R. Stone, ‘Exclusion of Evidence under Section 78 of the Police and Criminal Evidence Act: Practice and Principles,’ [1995] 3 Web J.C.L 1).

It should be noted that according to the legal position in England, the English doctrine of inadmissibility is not conditional upon the evidence being obtained by means of an illegal violation of a protected constitutional right. It is sufficient to prove that, in view of all of the circumstances of the case, including the circumstances of obtaining the evidence, admitting it in the trial would prejudice the fairness of the proceedings. A study of English case law shows that most of the cases where evidence was declared inadmissible under the aforesaid s. 17(1) concerned evidence that was obtained by the police by means of a serious violation of the provisions of the PACE or of the Codes of Practice that were issued under the aforesaid law and have the status of secondary legislation. Notwithstanding, English case law has emphasized that evidence may be inadmissible also because of the use of unfair investigation methods, and it is not necessary to prove formal illegality in obtaining the evidence.

In concluding these remarks, we should point out that the European Convention on Human Rights is silent on the question of the admissibility of illegally obtained evidence, and this matter is regulated in the internal law of the states. Notwithstanding, the European Court of Human Rights has held that a violation of a protected right under the Convention when obtaining the evidence does not necessarily result in its inadmissibility. According to the court, the circumstances of each case should be considered on the merits to determine whether admitting the evidence will make the trial as a whole unfair under s. 6 of the Convention. Thereby the European Court of Human Rights approved the position of English law on this subject (see Zander, The Police and Criminal Evidence Act 1984, supra, at pp. 347-348; Archbold, Criminal Pleading, Evidence and Practice (London, P.J. Richardson ed., 2003), at p. 1477).

59. The South African constitution of 1996 also contains an express provision with regard to the inadmissibility of illegally obtained evidence, which states:

‘35. Arrested, detained and accused persons

…

(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.’

Like the doctrine of inadmissibility practised in England and Canada, s. 35(5) of the South African Constitution also provides a relative doctrine that leaves the court discretion in excluding the evidence. The theoretical model on which the inadmissibility doctrine is based is not the giving of relief for the initial violation of the constitutional right when the evidence was obtained, but the prevention of future harm to protected values — the fairness of the proceeding and the harm to the administration of justice system — as a result of admitting the evidence (‘the preventative model’).

 Adopting a case law doctrine of inadmissibility in our legal system — guiding principles

60. How should we formulate the case law doctrine of inadmissibility in Israel? What ought to be the nature of this doctrine and what are the general principles that should guide us in determining its framework? In view of the characteristics of our legal system and the basic outlooks that prevail in it, and against the background of the interpretive inspiration that may be derived from the experience of other countries, as has been set out above, I think that it is possible to reach the following conclusions:

Of the two theoretical models that we have discussed, I believe that the appropriate model for our legal system is the ‘preventative model’ according to which the inadmissibility of evidence will be a relief whose purpose is to prevent a future violation of a protected value when the evidence is admitted in a trial, and not remedial relief for the initial harm to the accused that was completed when the evidence was obtained. The rejection of the ‘remedial model’ is based on two reasons: first, the ‘remedial model’ which is practised in the United States bases the relief of inadmissibility on the existence of a violation of a constitutional right at the time of obtaining the evidence. At the current time, our legal system does not have a complete and comprehensive constitutional bill of human rights. As I said in para. 20 supra, the question of the constitutional status of the procedural rights of persons under interrogation, suspects and defendants in criminal proceedings has also not received a clear and comprehensive response. Different approaches are possible on the question of which procedural rights that are not listed expressly in the Basic Law should be included within the framework of the constitutional right to dignity and liberty. In view of this, it would seem that the adoption of the ‘remedial model’ may raise significant difficulties in our legal system. Second, from a theoretical point of view, it is doubtful whether excluding illegally obtained evidence really gives relief for a violation to a protected right of the defendant that was completed. The illegal violation of the right to privacy and property occurs at the time of the search. Whether evidence was discovered in that search or not is immaterial from the viewpoint of the violation of the right that has already taken place. Therefore, there is a basis to the argument that excluding the evidence does not constitute remedial relief for the violation of a protected right that has been completed. Third, there are some who argue that the ‘remedial model’ leads to an improper discrimination between persons under interrogation. This is because this model offers relief for the initial violation of the constitutional right only for persons under interrogation who are indicted and against whom the evidence is presented by the prosecution in their trial (see, in this regard, Gross, ‘A Constitutional Rule of Inadmissibility — Has it a Place in Israel?’ supra, at p. 170). Fourth, it is possible to point to alternative reliefs — criminal, disciplinary, tortious and possibly even constitutional — for the initial violation of a protected right of the person under interrogation at the time that the evidence was obtained. In view of the existence of alternative reliefs as aforesaid and the social price involved in the exclusion of evidence that is capable of contributing to the discovery of the truth, it is doubtful whether there is a justification for adopting the ‘remedial model.’

The vast majority of the aforesaid difficulties do not arise with regard to the ‘preventative model,’ within which framework the exclusion serves as a defensive relief that is intended to prevent a future violation of a protected value when the evidence is admitted in a trial. And indeed, apart from the American legal system, all the other common law countries that we have discussed saw fit to adopt the ‘preventative model’ and to base the inadmissibility doctrines that they practise on this model.

61. With regard to the dominant purpose that should lie at the heart of the case law doctrine of inadmissibility that we should adopt, it appears that the educational-deterrent cannot be the main purpose of this doctrine. In view of the American experience, it is questionable whether the exclusion of illegally obtained evidence does indeed constitute an effective means of educating and deterring the investigation agencies from the use of improper investigation methods (see, in this regard, LaFave and Israel, Criminal Procedure, supra, at pp. 315-316; H.M. Caldwell and C.A. Chase, ‘The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding about Its Effects Outside the Courtroom,’ 78 Marq. L. Rev. (1994) 45, at p. 55). It should be noted that even in the context under discussion there are some who argue that there are alternative legal measures for educating and deterring investigators who made use of illegal investigation methods, including the filing of disciplinary, criminal or civil proceedings against the investigators who have acted improperly. Filing such proceedings constitutes a direct sanction against those investigators, and therefore there are some persons who think that this is a more effective relief for the purposes of education and as a deterrent.

Taking all of the aforesaid into account, it would appear that the educational-deterrent purpose cannot serve as a strong basis for formulating a doctrine for excluding illegally obtained evidence in our legal system. In view of the commitment of this court since its inception to the protection of human rights and the inspiration of the Basic Laws concerning human rights, it would appear that the purpose of protecting the fairness and integrity of the criminal process is the main purpose that should assist in formulating the aforesaid doctrine. The educational-deterrent purpose may be a possible and even a desirable side-effect of the exclusion of the evidence within the framework of this doctrine.

62. With regard to the degree of flexibility of the case law doctrine of inadmissibility, counsel for the appellant, as well as the Israel Bar Association and the National Public Defender’s Office, expressed support for the adoption of a relative doctrine, which leaves the court discretion to exclude illegally obtained evidence after taking into account the circumstances of each case on its merits. Indeed, there are many reasons that support the adoption of such a relative doctrine. As we explained above, the question of the admissibility of illegally obtained evidence requires us to find a proper balance between the protection of the rights of the accused and safeguarding the fairness and integrity of the criminal process, on the one hand, and competing values and interests, including the value of discovering the truth, fighting increasing crime and protecting public safety and the rights of victims of crime, on the other. It has already been said in our case law, in another context, that ‘we should… find a proper balance between the need to protect the right of the individual to dignity, liberty, privacy and a fair trial, on the one hand, and the need to protect the rights of society and its individuals against crime, on the other. We should refrain from paying too dear a price, whether from a desire to win the war against crime or a desire in another direction, to overprotect the suspect and the accused’ (per Justice Strasberg-Cohen in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [70], at p. 761). Consequently, the aforesaid balancing should be done with proper care and with a view to all of the circumstances of the case. As we shall explain below, a serious illegal act that was carried out intentionally by the investigation authorities cannot be compared to a negligible defect in the investigation process that was done in good faith and without any real ramifications on the rights of the person under interrogation. Because of the complexity of the matter and the many factors that should be taken into account, it is not desirable to adopt a strict rule of inadmissibility, but we should leave the court with discretion on the question of the admissibility of illegally obtained evidence, so that it can take into account the circumstances of each case on its merits. For these reasons, this court has in the past already expressed the opinion that there is no basis for adopting strict rules of inadmissibility like those that are practised in the American legal system, and that the relativity of the doctrine of inadmissibility is ‘… a basic condition for doing justice’ within its framework (per Justice Mazza in State of Israel v. Nahmias [60], at p. 339).

It should be noted that giving discretion to the court as aforesaid is consistent with the general theory of checks and balances that characterizes our legal system and it is consistent with the values of the State of Israel as a Jewish and democratic state (see, in this regard, Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State,’ supra, at p. 82). Moreover, the adoption of a relative doctrine that gives the court discretion on the question of the admissibility of illegally obtained evidence is consistent with our duty to act moderately and carefully when changing a case law rule that has existed in the matter under discussion until now (see, on this point, para. 50 supra). It is supported by the relative arrangements that were adopted in other common law countries and the lessons learned from the criticism levelled at the sweeping exclusionary rules practised in the American legal system.

The case law doctrine of inadmissibility — its nature and scope

63. In view of all of the conclusions that we have reached in our deliberations up to this point, it is possible to formulate the case law doctrine of inadmissibility that we are adopting in our legal system as follows:

The premise for the question of the admissibility of evidence is the same that has always been applied in Israel, according to which evidence that is relevant is admissible in a trial. Notwithstanding, the court has discretion to exclude evidence in criminal cases if it finds that the evidence was obtained illegally and admitting it in the trial will result in serious harm to the right of the accused to a fair criminal trial that departs from the framework of the limitations clause.

Thus we see that according to the case law doctrine, the inadmissibility of evidence in criminal cases because of the manner of obtaining it depends upon satisfying two conditions simultaneously: first, that the evidence was obtained illegally, and second, that admitting the evidence in the trial will significantly harm the right of the accused to a fair trial contrary to the conditions of the limitations clause. It should be emphasized that according to the ‘preventative model,’ which we have discussed, the inadmissibility of evidence is intended to prevent an illegal violation of the right to a fair trial as a result of admitting the evidence in the trial — a violation that is distinct and separate from the initial violation of the accused’s rights that was completed when the evidence was obtained. Let us now consider in greater detail the nature of the aforesaid conditions.

(a) Illegally obtained evidence

64. The first condition for the application of the case law doctrine of inadmissibility is that the evidence was obtained illegally by the law enforcement authorities. The question of what is ‘illegally’ obtained evidence cannot be given a precise and comprehensive answer. As a rule, it can be said that we are speaking of evidence that was obtained by means of illegal investigation methods, namely, methods that are contrary to a provision contained in statute, regulations or binding practice, methods that are unfair or methods that illegally violate a protected basic right. Naturally the question of the illegality or the unfairness of the investigation methods should be examined in accordance with the circumstances of each case on its merits. It has already been said in our case law that:

‘It is not possible to define what will be considered unfair or immoral in an investigation; it is necessary to consider this matter in accordance with the circumstances of each case. Thus, for example, a method of investigation that is permitted vis-à-vis an adult may be forbidden vis-à-vis a minor, and what an investigator may be permitted to do in a murder investigation he may not be permitted to do in the investigation of a traffic offence’ (per President Y. Kahan, in Muadi v. State of Israel [36], at pp. 250-251; with regard to the general principles for reasonable rules of investigation, see also the remarks of President Barak in HCJ 5100/94 Public Committee Against Torture v. Government of Israel [26], at pp. 834-836 {589-592}).

In any case, in order to exclude evidence under the aforesaid doctrine, a connection is required between the use of the improper investigation methods and the obtaining of the evidence. The question of the nature and strength of the aforesaid connection can be left to be resolved in the future (on the aforesaid connection in Canadian law, see Hogg, Constitutional Law of Canada, supra, at pp. 913-914).

It should be emphasized that within the framework of the case law doctrine of inadmissibility, it is not essential to prove that the evidence was obtained by means of a violation of a right that has constitutional status. As stated, contrary to the legal position in the United States, Canada and South Africa, in Israel a complete and comprehensive charter of rights has not yet been formulated, and therefore the application of the case law doctrine of inadmissibility is not restricted to evidence that was obtained specifically by means of a violation of a constitutional right. Instead, the doctrine provides a condition similar to the one practised in England and Australia, according to which the court must be persuaded that the law enforcement authorities obtained the evidence illegally, unfairly or by means of a violation of a protected human right.

(b) Admitting the evidence in a trial will significantly violate the right of the accused to a fair trial, contrary to the terms of the limitations clause

65. The focus of the second condition for the application of the case law doctrine of inadmissibility is the right of the accused to a fair criminal trial. Thereby we realize the main purpose of the doctrine under discussion, namely the protection of the rights of the accused and the fairness and integrity of the criminal trial. Thus we are following a similar path to the one chosen in England, Canada and South Africa, where the protection of the fairness of the proceedings and public confidence in the administration of justice process are the centre of gravity of the inadmissibility doctrines practised in their legal systems. In this context, it should be stated that the draft Evidence Ordinance Amendment (Inadmissibility of Evidence) Law, 5765-2005, which was tabled in the Knesset on 21 February 2005 also proposed that the inadmissibility of evidence that was obtained by ‘improper methods’ should be based on the right of the accused to a fair trial.

66. Even though the right to a fair criminal proceeding has been recognized in our legal system as a basic right from its inception, it would appear that defining the content and internal scope of the aforesaid right is not a simple task. We are speaking of a multifaceted right that is open-ended, and its title and precise content vary from one legal system to another, even in the various international conventions. Thus, for example, in the American legal system the Fifth and Fourteenth Amendments of the Constitution speak of the right to ‘due process’; in South Africa the provisions of art. 35(3) of the Constitution of 1996 address the right to a ‘fair trial’; by contrast, the provisions of s. 11(d) of the Canadian Charter, as well as the provisions of art. 10 of the Universal Declaration of Human Rights, the provisions of s. 14(1) of the International Covenant on Civil and Political Rights and the provisions of s. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms refer to the right to a ‘fair hearing.’ The internal scope of the aforesaid rights is not identical in the various legal systems and even in the different sources of internal law. It is clear, therefore, that defining the boundaries of the right to a fair criminal trial is a difficult and complex task, and it must be done while taking into account all of the principles and characteristics of the relevant legal system (see, in this regard, D. Cheney, L. Dickson, J. Fitzpatrick and S. Uglow, Criminal Justice and the Human Rights Act 1998 (1999); see also the remarks of Justice Adiel in HCJ 3992/04 Maimon-Cohen v. Minister of Foreign Affairs [87], at pp. 67-68).

Against this background, it would appear that it is possible to point to several characteristics of the right to a fair criminal trial in our legal system: first, the purpose of the aforesaid right is to ensure a fair procedure and proper procedural safeguards for the fairness of the criminal trial vis-à-vis the accused. Procedural fairness is, therefore, what lies at the heart of the aforesaid right. Second, the right to a fair criminal proceeding applies to all stages of the criminal proceeding, ‘both in the investigation stage and in the trial stage’ (per Justice Barak in Kanir v. State of Israel [64], at p. 516). Indeed, the police investigation stage is a preliminary proceeding to the trial itself, such that defects that occurred in it may have ramifications on the fairness of the criminal proceeding as a whole. This was discussed by Justice H.H. Cohn, who said that ‘… the whole of the police investigation is merely preparatory to the trial, and crimes committed in the investigation can cast a dark shadow on the trial proceedings that come in its wake’ (Abu-Madijem v. State of Israel [35], at p. 381). Third, the protection of the right to a fair criminal trial is not confined to examining the potential effect of procedural defects specifically on the outcome of the trial; this context requires a broader perspective that is based on general considerations of fairness, justice and preventing a miscarriage of justice. Finally, we should point out that the right to a fair criminal trial is a multifaceted right, which may serve as a basis for deriving many procedural rights of the person under interrogation, the suspect and the accused in criminal proceedings. Without exhausting the issue, we should point out that in foreign legal systems that are similar to our own and even in international conventions, the right to a fair criminal trial includes the right of the accused to know why he was arrested and what are the charges against him, the right to be represented by a lawyer, the right to be present at the trial, the right to an open trial by an unbiased and neutral tribunal and the right to defend himself at the trial and to present relevant evidence. The aforesaid right also includes the presumption of innocence, the principle of legality and the prohibition of placing the accused in double jeopardy of a conviction for the same act (see Cheney et al., Criminal Justice and the Human Rights Act 1998, supra, at pp. 77-78). In many countries that have a legal tradition similar to ours and in the case law of the European Court of Human Rights, it has been held that the right to a fair criminal trial also includes the right to consult a lawyer and even the right to remain silent and the right not to incriminate oneself at the interrogation stage, even though this does not prevent adverse inferences being drawn from the silence of the accused in his interrogation (see, for example, the position of English case law on this issue, which has been approved by the European Court of Human rights: Cheney et al., ibid., at pp. 86-90; see also A. Ashworth, ‘Article 6 and the Fairness of Trials,’ [1999] Crim. L. R. 261, at pp. 265-267).

67. As stated, this court has recognized the right to a fair trial as a fundamental and basic right from its inception. The draft Basic Law: Trial Rights (Draft Laws 1994, 335), proposed expressly enshrining the right to a fair trial and to due process in a Basic Law, but until now this proposal has not been adopted.

Many authorities are of the opinion that when the Basic Law: Human Dignity and Liberty was enacted, the right to a fair criminal trial obtained a constitutional super-legislative status. This position makes much sense. An illegal violation of the right to a fair trial in criminal proceedings may violate the constitutional right of the accused to liberty under s. 5 of the Basic Law. It may also harm the accused’s self-image and give him a feeling of degradation and helplessness as if he is a plaything in the hands of others, to the extent of a violation of his constitutional right to dignity under ss. 2 and 4 of the Basic Law (on the constitutional status of the right to a fair criminal trial, see the remarks of Justice Dorner in RT 3032/99 Baranes v. State of Israel [88], at p. 375; the remarks of President Barak in RT 8483/00 Deri v. State of Israel [89], at p. 263; the remarks of Justice Türkel in CrimA 1741/99 Yosef v. State of Israel [90], at p. 767; the remarks of Justice Strasberg-Cohen in HCJ 6972/96 Association for Civil Rights in Israel v. Attorney-General [91], at p. 782; see also Barak, Constitutional Interpretation, supra, at p. 422; Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 281). In the case before us, we do not need to decide the question whether the right to a fair criminal trial and the specific rights derived therefrom have acquired a constitutional status for their whole scope. We can rely merely on the ruling that was recently confirmed in the case law of this court with an expanded panel of eleven justices, according to which ‘… in appropriate circumstances, a substantial violation of the right to a fair trial will amount to a violation of the constitutional right to human dignity (see HCJ 1661/05 Gaza Coast Local Council v. Knesset [92], at para. 173; emphasis supplied).

Accordingly, the case law doctrine of inadmissibility provides that illegally obtained evidence shall be inadmissible, if admitting it in the trial will create a substantial violation of the right to a fair trial contrary to the terms of the limitations clause. In other words, in order to exclude illegally obtained evidence, admitting it in the trial must violate the fairness of the proceedings vis-à-vis the accused in a way that is substantial, for an improper purpose and to an extent that is excessive. In such circumstances, admitting the evidence in the trial will amount to an illegal violation of the constitutional right to dignity and liberty. In order to prevent this violation, the court should declare the evidence inadmissible. Excluding the evidence in the aforesaid circumstances is required by the purpose and compliance clauses provided in the Basic Law: Human Dignity and Liberty. It is derived from the obligation of the court not to violate the aforesaid constitutional right (status negativus) and also from its duty to protect it (status positivus) (see Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 273). In view of all of these, it appears that apart from the general interpretive spirit of the Basic Law, its provisions also serve as a basis for the normative enshrining of the case law doctrine of inadmissibility that we are adopting.

68. The restriction of the doctrine under discussion to circumstances in which admitting evidence at the trial will lead to a substantial violation of the right to a fair trial contrary to the terms of the limitations clause gives expression to the relativity of the aforesaid right. Indeed, like all the rights that are recognized in our legal system, the right to a fair criminal trial is also not absolute. The scope of the protection given to it is derived from the need to balance it against the competing values, rights and interests that we have discussed, including the values of discovering the truth, fighting crime, protecting public safety and protecting the rights of potential and actual victims of crime. Justice D. Levin rightly said in this regard: ‘The public interest in protecting the integrity of the judicial process should not make us forget other important public interests, such as the public interest in conducting trials to their conclusion, discovering the truth and the private interest of the injured victim’ (Yefet v. State of Israel [77], at p. 369). ‘The fairness of the trial, to which we aspire, is not merely fairness vis-à-vis the accused, but also vis-à-vis anyone who seeks the help of society in drawing conclusions from his degradation and humiliation as a human being’ (per President Shamgar in CrimFH 3750/94 A v. State of Israel [93], at p. 630).

The fundamental balancing formula between all of the aforesaid interests and values is the one that we have discussed, according to which illegally obtained evidence will be inadmissible only if the court discovers that admitting it in the trial will lead to a substantial violation of the right to a fair criminal proceeding, which is not for a proper purpose and to an extent that is excessive. The aforesaid balancing formula will be applied at the discretion of the court, in view of the special circumstances of the case that comes before it. Below we shall discuss the basic criteria for exercising the aforesaid judicial discretion.

Criteria for exercising judicial discretion within the framework of the case law doctrine of inadmissibility

69. In order to decide the question whether evidence should be declared inadmissible within the framework of the case law doctrine of inadmissibility, the court should consider a variety of considerations in accordance with the circumstances of the case before it. As I shall explain below, it is possible to point to three main groups of relevant considerations with regard to the question of when admitting illegally obtained evidence in a trial will inflict a substantial violation on the right of the accused to a fair trial contrary to the terms of the limitations clause. It should be emphasized that we are not speaking of a strict and exhaustive list of considerations, but merely guidelines for the court in exercising its discretion within the framework of the fundamental balancing formula on which the case law doctrine of inadmissibility is based.

(a) The character and seriousness of the illegality that was involved in obtaining the evidence

70. As I said above, the first condition for the application of the case law doctrine of inadmissibility is that the evidence was obtained illegally, i.e., in an illegal or unfair manner or by means of a violation of a protected right of the person under investigation. According to this, the first relevant group of considerations for deciding the question of the admissibility of illegally obtained evidence focuses on the improper conduct of the investigation authorities. In this context, the court should consider the following issues:

First, what is the character and seriousness of the illegality or the unfairness that were involved in obtaining the evidence? Logic dictates that a technical, negligible or inconsequential violation of the rules of proper investigation is not the same as a serious breach of these rules involving a significant violation of one of the main basic rights of the person under investigation. In general, admitting evidence at a trial, even though it was obtained by means of technical and marginal defects, does not substantially violate the right of the accused to a fair trial, and therefore there will be no reason to exclude it. This result is desirable because ‘… the criminal trial should not adopt the form of a game of chess in which one wrong move determines the result of the game (per Justice Zamora in CrimA 1/48 Silvester v. Attorney-General [94], at pp. 18-19; see also my remarks in CrimFH 4603/97 Meshulam v. State of Israel [95], at p. 197). On the other hand, in cases where the evidence was obtained by means of a major violation of an express provision of statute that was intended to protect the rights of defendants in their interrogations, or in circumstances where obtaining the evidence involved a serious violation of one of the main basic rights of the person under investigation, the weight of the values that support the inadmissibility of the evidence will increase. Between these two extremes of the types of violations there is a wide range of possibilities. Not every departure from the investigation rules and not every method adopted in an investigation, even if they are unacceptable to the court, will result in the inadmissibility of the evidence. It should be stated that the seriousness of the violation of the rules of proper investigation constitutes a main consideration for excluding illegally obtained evidence in all the legal systems in which relative doctrines of inadmissibility are practised. It should also be emphasized that this approach is consistent with the doctrine of relative voidance that is practised in our legal system, according to which not every deviation from the law nor every impropriety will lead to a result of voidance.

Second, the court should examine whether the law enforcement authorities made use of the improper investigation methods intentionally and deliberately or in good faith. When the investigation authorities have intentionally violated the provisions of law that bind them or they have knowingly violated a protected right of the person under investigation, this is capable of increasing the seriousness of the violation of the rules of proper investigation and the possible violation of due process if the evidence is admitted in the trial. Conduct that involves an intentional violation on the part of the investigation authorities may, therefore, be a circumstance of considerable weight for declaring the evidence inadmissible even when the defect is not serious. Notwithstanding, it should be pointed out that the fact that the authority acted in good faith does not necessarily prevent the evidence being excluded when this is required in order to protect the right of the accused to a fair criminal trial. Thus, for example, in circumstances where the defect that occurred in the manner of obtaining the evidence was serious and involved a substantial violation of the protected rights of the person under investigation, then the mere fact that the authority acted in good faith will not prevent the evidence being excluded. It should be noted that this is also the case law rule practised in Canada and in England (with regard to the case law rule in Canada, see the leading decision in R. v. Collins [108]; with regard to the rule in England, see Archbold, Criminal Pleading, Evidence and Practice, supra, at p. 1480).

Third, the court should consider whether in the case before it there are ‘mitigating circumstances’ that are capable of reducing the seriousness of the illegality that was involved in obtaining the evidence. This is the case, for example, when the illegality committed by the investigation authorities was intended to prevent the disappearance or destruction of essential evidence by the accused, when the accused contributed to the illegality in conducting the investigation, by abusing his rights, or when the illegality was the result of an urgent need to protect public security (see and cf. Smirk v. State of Israel [18], at p. 546).

Fourth, the court should consider how easy it would have been to obtain the evidence lawfully. If obtaining the evidence in permitted ways was possible and easy, then the violation of the rules of proper investigation should be considered more serious, in such a way that it will support the conclusion that admitting the evidence in the trial will create a serious and disproportionate violation of the right of the accused to a fair trial.

Finally, the court may consider whether the evidence would have been discovered or obtained by the law enforcement authorities even without making use of the improper investigation methods. When the answer to this question is yes, this may reduce the strength of the violation of the right of the accused to a fair trial if the evidence is admitted in the trial (see and cf. Hasson v. State of Israel [57], at p. 283, where the court concluded that in view of all the circumstances of the case, the accused would have made his confession even had it not been for the illegal violation of his right to consult a lawyer. Therefore the court refrained from declaring the statement inadmissible in that case).

(b) The degree to which the improper investigation method influenced the evidence that was obtained

71. The second relevant group of considerations for the exercising of judicial discretion within the framework of the case law doctrine of inadmissibility concerns the degree to which the illegal or unfair investigation method affected the evidence that was obtained. In this context, the court should consider two interrelated questions: first, to what degree was the illegality that was involved in obtaining the evidence likely to affect the credibility and probative value of the evidence. In circumstances where there is a concern as to the credibility of the evidence, the tension between the value of discovering the truth and the protection of the fairness and integrity of the process is reduced, in such a way that may support the inadmissibility of the evidence. Second, the court should consider whether the existence of the evidence is independent and distinct from the illegality that was involved in obtaining it. In circumstances where the answer to this is yes, the improper investigation methods are not capable of affecting the content of the evidence, and this is likely to constitute a consideration in favour of admitting it in the trial.

With regard to the two aforesaid questions, there may be great importance in the character of the evidence (tangible, verbal, etc.) that is being considered. Tangible evidence, such as firearms, drugs or stolen property have an independent and distinct existence from the illegality that was involved in obtaining them, and as a rule the aforesaid illegality will not be sufficient to render this evidence inadmissible. Therefore, the weight of the considerations that support the admissibility of tangible evidence is usually great (see J.R. Spencer’s chapter on ‘Evidence’ in European Criminal Procedure (Cambridge Studies in International and Comparative Law, M. Delmas-Marty and J.R. Spencer eds., 2002), at p. 605). Notwithstanding, it should be emphasized that even in this context we are not speaking of a strict rule, and the matter depends on the circumstances of each case on its merits.

In closing these remarks, I think it right to point out that since the case law doctrine of inadmissibility that we are adopting is not mainly based on an educational-deterrent purpose, we should not adopt in our legal system the ‘fruit of the poisonous tree’ doctrine that prevails in the United States (see para. 56 supra on this doctrine). The question of the admissibility of evidence that was found as a result of other inadmissible evidence should be considered in accordance with the circumstances of each case on its merits, while taking into account the effect that admitting the aforesaid evidence would have on the right of the accused to a fair criminal trial. In this context, the court should examine all of the considerations that we discussed above, including the character and seriousness of the illegality that led to obtaining the original evidence, the nature of the derived evidence concerned and the connection between it and the illegality that was involved in conducting the investigation.

(c) The social damage, as compared with the social benefit, in excluding the evidence

72. The third group of considerations that may be relevant when deciding the question of the admissibility of illegally obtained evidence concerns the effect that excluding the evidence will have on the work of administering justice in its broad sense. The main question that arises in this context is whether the social price involved in excluding the evidence is higher than the potential benefit that will arise from admitting it. The main parameters in this regard are the importance of the evidence for proving guilt, the nature of the offence attributed to the accused and its degree of severity. When we are concerned with evidence that is important and decisive for the prosecution and when the offences attributed to the accused are very serious, the exclusion of the evidence may cause excessive harm to the public interests of fighting crime and protecting public safety and the victims of crime. In these circumstances, the exclusion of the evidence will lead to the fact that the person who is guilty of committing serious offences will not be held accountable for his deeds, a consequence that may in itself undermine the administration of justice and public confidence in the courts. For these reasons, the courts in England and Australia are accustomed to taking into account the degree to which the evidence is essential and the seriousness of the offence attributed to the accused, when they decide the question of the admissibility of illegally obtained evidence (see Spencer, ‘Evidence,’ supra, at p. 605; Bunning v. Cross [106]; s. 138(2) of the Uniform Evidence Acts 1995 in Australia.

73. Notwithstanding the aforesaid, I am not unaware that giving weight to the importance of the evidence and the seriousness of the offence attributed to the accused when deciding the question of the admissibility of illegally obtained evidence involves certain difficulties. Taking into account the aforesaid considerations may lead to a situation in which precisely in investigations of serious felonies in which the constitutional right of the accused to dignity and liberty deserves substantial protection, the compliance with the rules of conducting a fair and proper investigation will decrease. In this context we should point out that in R. v. Collins [108] the Supreme Court of Canada saw fit to include the seriousness of the offence among the relevant considerations for exercising judicial discretion within the framework of s. 24(2) of the Charter, but in practice the courts in Canada tend to give the aforesaid consideration very little weight, and they do not take it into account when they decide the question of the admissibility of evidence that was obtained in violation of the Charter (see Hogg, Constitutional Law of Canada, supra, at pp. 931-932; for criticism of this trend in Canadian case law, see Stribopoulos, ‘Lessons from the Pupil: A Canadian Solution to the American Exclusionary Rule Debate,’ supra, at footnote 229).

The question of the degree to which the courts in Israel should take into account the importance of the evidence and the seriousness of the offence attributed to the accused within the framework of exercising their discretion under the case law doctrine of inadmissibility does not require a decision in the appellant’s case and we can leave this too to be decided in the future.

74. As I have already said, the list of considerations enumerated above does not purport to be a closed and exhaustive list. It gives examples of the type of circumstances and facts that may influence the court when exercising its discretion within the framework of the case law doctrine of inadmissibility. These facts concern, on the one hand, the degree of the harm to the accused’s right to a fair trial if the evidence is admitted in court, and, on the other hand, the extent of the harm to the conflicting interests if the evidence is declared inadmissible. It is important to emphasize that none of the considerations that we have discussed have an exclusive or decisive status, and that the relative weight of the aforesaid considerations will be determined in the circumstances of each case on its merits. Thus, for example, if the violation of the rules of proper investigation is serious and without it the evidence would not have been obtained, and if the offence attributed to the accused is a less serious one, then the weight of the interests supporting the admissibility of the offence will be reduced. In such circumstances, the protection of the right of the accused to a fair trial is likely to lead to the exclusion of the evidence.

In view of the fundamental balancing formula that we have discussed, and in view of the guidelines that we have set out above, I think that the concerns that the prosecution expressed before us, with regard to the uncertainty that will be caused as a result of the adoption of a case law doctrine of inadmissibility in our legal system, are exaggerated. Since we are speaking of a flexible doctrine, often the result will be identical to the one under current case law. In certain cases, a change will be required in the outcome, but this change is unavoidable in view of the normative changes that have been brought about by the Basic Laws that address human rights. This change will find expression as case law develops, by means of careful progress from case to case and by specific applications of the balancing formula that we have discussed, according to the circumstances of each case on its merits. In time, the nature and scope of the case law doctrine of inadmissibility, for which we have laid the foundation in our judgment, will become clear. Baseless applications for the exclusion of evidence will become fewer, and the arguments will become more focused. The experience of other countries that have adopted relative doctrines for the inadmissibility of illegally obtained evidence — whether in case law or in statute — shows that it is indeed possible to overcome the concerns with regard to uncertainty and the flooding of the courts with baseless claims that illegally obtained evidence should be excluded. It can be assumed that when the initial transition period is over, the same will also be the case in Israel (see and cf. the remarks of President Barak in CrimApp 537/95 Ganimat v. State of Israel [45], at p. 420, and his remarks in Barki Feta Humphries (Israel) Ltd v. State of Israel [47], at pp. 787-788).

The application of the case law doctrine of inadmissibility to defendants’ confessions

75. The last issue that we shall address before we turn to consider the specific case of the appellant before us concerns the question of the relationship between the rule of inadmissibility provided in s. 12 of the Evidence Ordinance and the case law doctrine of inadmissibility that we are adopting into our legal system. The interpretive question that arises in this regard is whether the rule of inadmissibility provided in the aforesaid s. 12 constitutes a comprehensive arrangement for the purpose of the admissibility of confessions of the accused, as argued by the attorney-general in his summations before us and as thought by the one of the justices of the appeals court martial in the minority opinion, or whether the aforesaid s. 12 does not constitute a comprehensive arrangement as aforesaid, and therefore there is nothing to prevent the case law doctrine of inadmissibility applying also to a confession of an accused.

According to our interpretive approach as set out in para. 32 supra, in addition to the purpose concerning the protection of the credibility of defendants’ confessions, the rule of inadmissibility provided in s. 12 of the Evidence Ordinance is intended to protect the right of the person under interrogation to physical and emotional wellbeing and his right to the autonomy of free will. The inadmissibility of a confession under s. 12 therefore constitutes a relief for a substantial violation of one of the aforesaid rights of the accused when the confession was made. By contrast, the case law doctrine of inadmissibility is intended to prevent an illegal violation of the right to a fair criminal trial if the evidence is admitted in the trial. These purposes do not conflict with one another, but are complementary. Consequently, there is a purposive justification for having the case law doctrine of inadmissibility apply to the confessions of defendants in addition to the rule of inadmissibility provided in s. 12 of the Evidence Ordinance. Accordingly, a defendant’s confession may be found to be admissible under the provisions of s. 12 of the Evidence Ordinance but inadmissible within the framework of the case law doctrine of inadmissibility, and vice versa.

Support for this conclusion can be found in comparative law. The Supreme Court of Canada held that the ‘free will’ test that was originally adopted in its case law from English common law continues to exist alongside the doctrine of inadmissibility provided in s. 24(2) of the Charter. It was also held that the ‘free will’ test cannot prevent the application of the aforesaid doctrine to defendants’ confessions (see R. v. Oickle [107]). In addition, we should point out that the doctrines of inadmissibility adopted in England and Australia with regard to illegally obtained evidence have also been applied to all types of evidence, including defendants’ confessions, alongside special arrangements that were provided in legislation with regard to the admissibility of defendants’ confessions (with regard to the application of the doctrine of inadmissibility enshrined in s. 78 of the PACE in England to defendants’ confessions, see Archbold, Criminal Pleading, Evidence and Practice, supra, at p. 1476, and Tapper, Cross and Tapper on Evidence, at p. 193; with regard to the application of the Australia doctrine of inadmissibility, which is enshrined in s. 138 of the Uniform Evidence Acts, to defendants’ confessions, see Australian Law Reform Commission, Review of the Uniform Evidence Acts (2005), at para. 14.67).

In view of all of the aforesaid reasons, we are led to the conclusion that s. 12 of the Evidence Ordinance is not a comprehensive arrangement with regard to the admissibility of confessions made by an accused in his interrogation. Consequently there is nothing that prevents the case law doctrine of inadmissibility also applying, in accordance with its purpose, to evidence of this kind. In closing we should point out that a similar question may arise with regard to the relationship between the rules of inadmissibility provided in the Protection of Privacy Law and the Eavesdropping Law, on the one hand, and the case law doctrine of inadmissibility that we are adopting into our legal system, on the other. This question does not arise in the circumstances of the case before us. Therefore I see no need to decide this issue and it may be addressed at a later date.

Summary

76. A summary of the main points of the case law doctrine of inadmissibility, as set out above, is as follows:

The premise for the question of the admissibility of evidence is the one that has been established in Israel since its inception, that evidence which is relevant is admissible in a trial. Notwithstanding, according to the aforesaid doctrine, the court has jurisdiction to declare evidence inadmissible in criminal cases, if it discovers that the evidence was obtained illegally and admitting it in the trial will create a substantial violation of the right of the accused to a fair trial contrary to the terms of the limitations clause. We are speaking of a fundamental balancing formula that seeks to achieve a proper compromise between all of the rights and interests that are relevant to the question of the admissibility of illegally obtained evidence, including the discovery of the factual truth, the fight against crime and the protection of public safety and the rights of victims of the offence on the one hand, as opposed to the protection of the rights of the accused and the fairness and integrity of the criminal trial on the other.

The aforesaid balancing formula will be applied at the discretion of the court, while taking into account the circumstances of each case on its merits and in accordance with the guidelines that we have discussed. These guidelines concern the nature and seriousness of the illegality that was involved in obtaining the evidence, the degree to which the improper investigation method affected the evidence that was obtained and the question of the social damage as compared to the social benefit involved in excluding it. The aforesaid doctrine will be a general one and it will be applied to all types of evidence, including defendants’ confessions.

77. It should be noted that our judgment assumes an infrastructure for adopting a case law doctrine of the inadmissibility of illegally obtained evidence, but our remarks do not provide a complete solution to all of the questions involved in the adopting of such a doctrine. Thus, for example, our judgment does not address the question whether an application to exclude illegally obtained evidence is the privilege of the accused only, or whether the prosecution may also make such an application; or, for example, who has the burden of proving the evidence involved in an application for such an exclusion and what is the appropriate stage for making the application. These questions will certainly be addressed in the future, whether in legislation that is consistent with the provisions of the Basic Law, or in the case law of the court, by means of careful steps from one case to the next.

78. Naturally, since we had not yet adopted our case law doctrine, the parties refrained from addressing in their arguments the question of when the case law doctrine that illegally obtained evidence is inadmissible should be introduced. This doctrine belongs to the sphere of the rules of evidence in criminal proceedings and its purpose is to protect the right of defendants to a fair criminal trial. The adoption of the doctrine in our legal system is a required and expected development (see para. 49 supra), and its application does not harm a reliance interest worthy of protection. In view of all this, the ruling made by us shall apply to every defendant whose case is pending before the court, in so far as there are grounds for applying it in the circumstances of the case (see and cf. LCA 8925/04 Solel Boneh Building and Infrastructure Ltd v. Estate of Alhamid [96]; see also RT 8390/01 Axelrod v. State of Israel [97].

79. In conclusion and after reading the opinion of my colleague Justice Grunis, I would like to point out that contrary to what is implied by para. 6 of the opinion, my opinion does not address the ruling made in CrimA 242/85 Hazan v. State of Israel [98], and I see no reason to express any position on that issue. With regard to the other arguments that appear in the opinion of my colleague Justice Grunis, the response to them can be found in my remarks above, and I see no need to add anything further in this regard.

From general principles to the specific case — applying the doctrine of inadmissibility to the circumstances of the appellant’s case

80. As I explained at length at the beginning of our deliberations, in the course of admitting the appellant into Prison 6 for being absent from the army without leave, a small packet wrapped in paper fell from his underpants, and then the appellant said: ‘It is grass, I can explain.’ The next day, the appellant was interrogated in the prison by a military interrogator. When he began taking his statement, the interrogator warned the appellant of his right to remain silent, but he refrained from advising him of his right to consult a lawyer. In the course of taking the aforesaid statement, the appellant confessed to the military investigator that he had smoked a drug of the cannabis type on several occasions during the period that he was absent from the army without leave. It will be remembered that before he finished taking the statement, the military investigator left the interrogation room and spoke on the telephone with the military police commander who told him to arrest the appellant. At the end of the aforesaid telephone conversation, the investigator returned to the interrogation room and continued taking the appellant’s statement. Only a quarter of an hour after finishing taking the first statement did the military investigator notify the appellant that he was under arrest and that he had the right to consult a lawyer.

The prosecution did not dispute, either before the court martial or before us, that the military investigator acted illegally when he refrained from warning the appellant of his right to consult a lawyer before he began taking his statement. As we clarified above, the investigator acted in this matter in contravention of the arrangement that was provided at that time in the guidelines of the military police investigation department and that was later enshrined in s. 227A1 of the Military Jurisdiction Law, according to which a soldier should be informed of his right to consult a lawyer whenever there is an almost certain likelihood that he will be arrested. In view of the aforesaid omission of the military investigator, the appellant was unaware of the right to consult a lawyer before his first statement was taken. Therefore the appellant did not ask to consult a lawyer before he confessed that he had used a dangerous drug while he was a soldier. In these circumstances, the parties before us agree that not giving the appellant the notice about his right to consult a lawyer amounted to a violation of the actual right to consult a lawyer (see para. 19 supra).

We have come to the conclusion that notwithstanding the aforesaid violation of the right to consult a lawyer, there was no substantial violation of the appellant’s right to autonomy of will and freedom of choice when he made his confession. In view of this, we held that we should not intervene in the decision of both instances of the court martial, which did not declare the confession of the appellant inadmissible under the provisions of s. 12 of the Evidence Ordinance. But this conclusion is insufficient to end our deliberations. There is a separate question as to whether there is a basis for excluding the aforesaid confession of the appellant in accordance with the case law doctrine of inadmissibility that we are adopting into our legal system. It should be stated that the aforesaid doctrine applies in the appellant’s case in view of what is stated in s. 476 of the Military Jurisdiction Law, that: ‘The rules of evidence that are binding in criminal matters in the courts of the state are also binding in a court martial…, when there is no contrary provision in this law.’ It should also be noted that even though s. 9 of the Basic Law: Human Dignity and Liberty provides a special limitations clause for the security forces, as a rule this does not change the fundamental balancing formula on which the case law doctrine of inadmissibility is based or the guidelines for exercising judicial discretion within this framework. If and in so far as it is required, the nature and character of the military service will affect the application of the criteria that we have discussed, in view of the circumstances of each case on its merits (on the special limitations clause provided in s. 9 of the Basic Law, see the opinion of Justice Zamir in HCJ 6055/95 Tzemah v. Minister of Defence [99], at pp. 262-267 {657-663}).

81. In the circumstances of the case before us, the first condition for applying the case law doctrine of inadmissibility is satisfied, since there is no dispute before us that the military investigator acted illegally when he refrained from notifying the appellant before beginning to take his statement about his right to consult a lawyer. It remains, therefore, to examine whether admitting the appellant’s confession as evidence in the trial will create a significant violation of his right to a fair criminal trial contrary to the terms of limitations clause.

We discussed above the importance of the right to consult a lawyer and its contribution to protecting the fairness and propriety of the interrogation proceedings (see para. 14 et seq.). In view of this, we said that a substantial violation of the right to consult a lawyer in the interrogation proceedings may in certain circumstances harm the fairness of the criminal justice process as a whole. In the appellant’s case, the District Court Martial held, by a majority, that the military investigator acted — throughout all the stages of the interrogation — knowingly and intentionally in violation of the defendant’s [the appellant’s] right to consult a lawyer, and there was no basis for holding him to have acted in good faith in this respect’ (p. 38 of the verdict). The Appeals Court Martial did not see fit to intervene in the aforesaid factual finding, and we too will refrain from doing so in the proceeding before us. The fact that the military investigator refrained intentionally from informing the appellant of his right to consult a lawyer and deliberately violated this basic right increases the severity of the illegality that was involved in obtaining the appellant’s confession and constitutes a weighty reason for excluding it as evidence. To this we should add the considerable ease with which it was possible to obtain the appellant’s confession lawfully, and also the fact that the offences attributed to the appellant are not the most serious ones in the statute book. On the other hand, it should be noted that in his arguments before the court martial, counsel for the defence confirmed that the illegality under discussion did not undermine the credibility of the content of the confession given by the appellant in his interrogation. But the prima facie credibility of the confession, in itself, is incapable of being a sufficiently weighty reason when confronted with all the other considerations that we have discussed. Therefore, we are drawn to the conclusion that in the unique circumstances of the case before us, admitting the confession of the appellant in evidence will create a substantial and disproportionate violation of his right to a fair criminal trial and therefore we should declare it inadmissible.

In addition to the aforesaid, we should point out that counsel for the appellant argued in the notice of appeal that was filed in the court that the violation of the duty to give notice of the right to consult a lawyer was not an isolated event and that at the time the appellant was interrogated, the aforesaid violation was a common phenomenon in the investigations of the military police investigations department. The National Public Defender’s Office raised a similar argument with regard to police investigations. In their written summations, the National Public Defender’s Office gave details of the results of a field survey carried out at the end of 1999 and during 2003. The research was conducted on a group of 220 persons under arrest in the Tel-Aviv District. It is argued that the findings of the research show that a significant number of persons under arrest at police stations do not receive a statutory notice of their right to consult a defence lawyer. I would remark on this that I doubt whether the research method and the population group size that was examined by it allow reliable and comprehensive conclusions to be reached as was claimed before us. Indeed, the Public Defender’s Office confirmed in its arguments that there may be a margin of error in the findings of the research that was conducted. Nonetheless in the case before us the need to decide this does not arise: first, as we have clarified above, the case law doctrine of inadmissibility is not based mainly on an educational-deterrent purpose. Therefore there is no need to prove that the illegality that was involved in obtaining the evidence is a common phenomenon, even if such proof is likely to be a circumstance that the court would take into account within the framework of its considerations. Second, in view of all the reasons that were set out above, and especially in view of the finding of the court martial that the military investigator intentionally refrained from advising the appellant of the right to consult a lawyer, the confession that the appellant made in the interrogation should be declared inadmissible, whether the violation of the duty to give the notice is a common phenomenon as alleged by the appellant and the National Public Defender’s Office, or not.

82. Consequently, in view of all the reasons that I have discussed above, I have reached the conclusion that we should allow the appeal in the appellant’s case and declare his confession inadmissible in accordance with the conditions of the case law doctrine of inadmissibility. The appellant should therefore be acquitted of the three offences of using a dangerous drug, whereas his conviction on the offence of possessing a dangerous drug that he confessed should remain unaffected. In so far as the appellant’s sentence is concerned, for the reasons set out above, the court martial refrained from imposing an actual custodial sentence for his conviction of the offences of making use of a dangerous drug, and it thought it sufficient to impose a suspended sentence for these offences. The operational period of the suspended sentence has already ended, and to the best of our knowledge the suspended sentence was not implemented during it.

I therefore propose that the appeal should be allowed and that the appellant should be acquitted of the three offences of making use of a dangerous drug.

 

 

President A. Barak

I agree.

 

 

Justice E. Rivlin

I agree.

 

 

Justice A. Procaccia

I agree.

 

 

Justice E.E. Levy

I agree.

 

 

Justice M. Naor

I agree.

 

 

Justice S. Joubran

I agree with the illuminating and comprehensive opinion of my colleague, Justice Beinisch.

 

 

Vice-President Emeritus M. Cheshin

I have read the magnum opus of my colleague, Justice Beinisch, and I agree with her conclusions, both with regard to the interpretation and implementation of the provisions of s. 12 of the Evidence Ordinance and with regard to the validity and effect of illegally obtained evidence. If I wish therefore to add two or three footnotes, these are not intended to derogate in any way from the illuminating remarks of my colleague.

2.            With regard to the interpretation and scope of application of the provisions of s. 12 of the Evidence Ordinance, as my colleague said in her opinion, the core of the interpretation proposed by her was inherent in the provisions of s. 12 already before the enactment of the Basic Laws. All that has happened is that the Basic Laws and the ‘spirit of the times’ have germinated the seed that was previously dormant and hidden within the provisions of s. 12; now that the seed has been germinated, it has been nourished by the Basic Laws and the ‘spirit of the times,’ and thus it has succeeded in sprouting and growing until it has brought forth fruit, which is the fruit that we now have before us.

3.            The interpretation currently being proposed for the provisions of s. 12 has two tributaries. The source of the first tributary in the language of s. 12. The court should ascertain that a confession brought before it as evidence was ‘free and willing,’ nothing more. But now this tributary is seeking to increase by one level or several levels the degree of abstraction of the concepts ‘free and willing,’ by determining that the essence of the matter before us, and other matters, is the autonomy of the individual and the freedom of choice given to him to make — or not to make — a ‘free and willing’ confession. Only someone who has personal autonomy — or, to put it another way, someone whose personal autonomy has not been substantially violated — can confess freely and willingly, and only a confession made by someone in this state can have a presumption of truth. Making a ‘free and willing’ confession is merely one of the manifestations of personal autonomy, and instead of focusing on the manifestation (the external appearance), we should prefer to examine the source, the root of the manifestation. It need not be said that the autonomy of the individual inherently includes also his right to physical and emotional wellbeing. We must remember and safeguard all this, because the formulation of criteria is only the beginning of the work; the essence lies in the methods of implementing them and in erecting fences around them.

4.            The second tributary is the ‘spirit of the times,’ an inspiration that we have been fortunate to receive from the Basic Laws, from the general atmosphere, and no less importantly from the spirit of the age that reaches us mainly from countries with which we have a common way of legal thinking. It has been said in case law on more than one occasion that the interpretation of a statute of the Knesset is not like the interpretation of an old inscription found in an archaeological excavation. A statute of the Knesset is like a living and breathing fabric that is nourished by the spirit and substance of society as it prevails from time to time. The basic principles and doctrines that are a product of the age enter into the law and nourish its roots. We ourselves are the products of the ‘spirit of the times,’ and with our spirit — the ‘spirit of the times’ — we will establish and strengthen the law. See and cf. CFH 7325/95 Yediot Aharonot Ltd v. Kraus [100], at pp. 71 et seq.; LCA 6339/97 Roker v. Salomon [101], at pp. 265 et seq..

5.            ‘This person came to reside and he has acted as a judge’ was the angry complaint of the wicked people of Sodom against Lot (Genesis 19, 9 [111]). We too can say this — here in the positive sense of the expression — with regard to the doctrine called the doctrine of ‘relative voidance’ or ‘relative result.’ The doctrine came to us only recently, and it has taken control of spheres of law that our predecessors never imagined. And it is also true that we have always availed ourselves of this doctrine (in part), albeit not under this name. So we see that the doctrine proposed by my colleague, Justice Beinisch, with regard to the inadmissibility of evidence that was obtained by means of an illegal criminal proceeding — a doctrine of ‘relative inadmissibility’ — is merely a child of its parent, the doctrine of ‘relative result.’

6.            A final comment: we are discovering, not for the first time, that history repeats itself, albeit on higher levels of sophistication and abstraction than in the past. Thus we see that during the formative period of the common law, the courts fashioned raw materials into fundamental principles, doctrines and patterns of thinking. In the next stage, the more advanced stage, the courts, as well as the legislature, took steps to crystallize the rules of law, to pour the primeval material into more rigid utensils, which were supposed to make it easier for the courts to apply the law to sets of facts that came before them for a decision. The purpose of the crystallization was that instead of the courts being required to concern themselves, again and again, with tens or maybe hundreds of precedents, the courts and the legislature created relatively strict formulae to facilitate the work of the courts. And now we come to the present. The time has come to make strict frameworks flexible, to interpret concepts according to their purpose, to examine the origins of rules, to infuse into rules that have been established the ‘spirit of the times’ and the concepts of justice that are accepted by us at this time. This is what my colleague Justice Beinisch has done, and may she be blessed for it.

 

 

Justice A. Grunis

1.            My colleague Justice D. Beinisch discussed in her comprehensive and penetrating opinion a long list of legal issues in the field of the rules of criminal evidence. Because of various constraints, I cannot elaborate on the many questions that arise and I will state my position briefly and succinctly, from the difficult issues to the easier ones, or, to be more precise, from general principles to the specific case.

2.            The preliminary and first question that arises is whether it is desirable that the court should adopt, by means of ‘judicial legislation,’ a broad doctrine concerning the inadmissibility of illegally obtained evidence. Indeed, my colleague restricts and qualifies the scope of the doctrine, but still the question remains as to whether such a significant step ought not to be taken by the legislature, particularly in view of the fact that specific arrangements with regard to the admissibility of evidence that originated in illegal acts were enacted by the Knesset (s. 12 of the Evidence Ordinance [New Version], 5731-1971 (hereafter — the Evidence Ordinance); s. 13 of the Eavesdropping Law, 5739-1979 and s. 32 of the Protection of Privacy Law, 5741-1981), and at a time when draft laws on the issue have once again been tabled in the Knesset. Since the opinion of my colleagues supports the adoption of such a doctrine, I too shall address the merits of the matter.

3.            In my opinion, before we begin to examine the important question under discussion — the adoption of a doctrine concerning the inadmissibility of illegally obtained evidence — we should examine the values that we are interested in realizing, and in particular we are obliged to determine the importance of those values relative to one another. In my opinion, the highest value that should concern us is to restrict, in so far as possible, the fear of false convictions. The next most important value is the public interest in achieving the conviction of those persons who have committed crimes. The combination of these two values, even from the viewpoint of their relative status, is expressed in the statement ‘better ten guilty men go free than one innocent one be convicted,’ or, in the language of Maimonides: ‘It is better and more desirable to acquit a thousand offenders than to kill one innocent person at some time in the future’ (Maimonides, Sefer HaMitzvot, Prohibitions, 290 [112]). On the next level of importance, we arrive at the need to safeguard the fairness of the criminal trial in its procedural aspect, as distinct from its ultimate purpose, namely the determination of the accused’s guilt or innocence.

4.            Throughout the opinion of my colleague Justice Beinisch, she mentions the transition that has occurred in recent decades in the sphere of the rules of evidence, from admissibility to weight. Arrangements that determined in what conditions evidence would be admitted have been replaced by the rule that holds almost all evidence to be admissible, so that the court will consider it and will be required to determine its weight. Those who support this approach believe that it gives expression to the main purpose of the court, which is discovering the truth. The argument against admissibility barriers is that they may impede the ability of the court to discover the truth, since it will be obliged to ignore relevant evidence. There is no doubt that in certain cases the approach that bars admissibility will result in the truth not coming to light. We should remember that in the vast majority of cases such an approach within the framework of the criminal trial will work against the prosecution and not against the accused. The result is likely to be that the guilty person is acquitted in his trial because incriminating evidence was not admitted. By contrast, admitting the evidence and moving the scrutiny to the question of weight is likely to result in there being cases where the innocent man is found guilty. In my opinion, these opposites of the innocent and the guilty should not be treated equally. The transition from admissibility to weight is likely to create a symmetry between them. In this regard, I can merely cite the remarks of Justice S. Levin, in the minority opinion in State of Israel v. Tubul [67], at pp. 359-360:

‘In addition to theoretical questions of interpretation, from between the lines and from the very lines of the opinion of the majority justices there emerges an approach that if the courts remove the “technical barriers” of admissibility that confronted them in the past and still do today, the power of the court to do justice and to determine the facts as they really were will be increased; this approach gives decisive weight to what it regards as the unlimited power of the courts to discover the truth on the basis of their impression of the testimonies alone, and it seeks to remove from its path procedural and evidential rules that, in the opinion of the supporters of this approach, have become antiquated.

In my opinion, the approach of the majority judges is too simplistic; it emphasizes individual cases in which the court, because of evidence that was excluded, did not discover the truth (and such cases definitely do exist) but it ignores the existence of many other cases in which different judges may be impressed differently by particular evidence and therefore reach different factual findings from one another; not only is the discernment capacity of different judges dissimilar, but sometimes the period of time during which the evidence is heard and the short time during which a witness is on the witness stand do not allow the court to reach sufficiently definite conclusions, and in addition, the “truth” is determined only according to reality as it appears from the evidence, which may not reflect reality as it truly is. In such circumstances, providing so-called “formal” evidential barriers is capable of balancing the picture and changing the result, to some extent, in favour of standardization in determining factual findings, contributing to legal certainty and serving as a kind of constitutional safeguard against mistakes or arbitrariness; the existence of “formal” barriers as aforesaid is especially required in a legal system like ours, in which the determination of factual findings is usually solely the province of the trial court, and the court of appeal does not tend to intervene in these except in special and rare cases. It should be noted that I do not intend to say that every “formal” provision is desirable merely because it is such, but that in each case we should examine to what extent it serves a worthy purpose and is intended to balance risks that should be avoided…

There is no doubt that any legal system that prefers the existence of evidential or procedural safeguards to the unlimited discretion of the court, or that excludes them, pays a price as compared with the opposite system. Indeed, in every case where there is a conflict between the approaches, the legislator or the interpreter, as applicable, must create the appropriate balancing formula that will, in so far as possible, give the proper weight to the conflicting interests and considerations.’

It should be noted that the fear of false convictions is even greater when we are concerned with a confession, since the additional evidence required for a conviction on a confession is minimal.

5.            My colleague Justice D. Beinisch considered at length the interpretive development of s. 12 of the Evidence Ordinance. It is clear that originally the section applied only to cases in which there was at least a doubt as to the credibility of the confession. Case law extended the interpretation of the section so that in certain circumstances there was no further need to ascertain how the action of the person in authority affected the credibility of the confession. The broader approach is consistent with the approach that a violation of the autonomy of the person under interrogation (who later becomes the accused) or his freedom of choice is what lies at the heart of s. 12. I wonder whether today, when the doctrine of illegally obtained evidence is being adopted, there is no basis for returning to the original interpretation of s. 12. In other words, the question is why we do not leave outside the framework of s. 12 the problematic cases in which there is no difficulty with regard to the credibility of a confession, so that these will be subject to the same rules of the doctrine that apply with regard to the other types of evidence.

6.            Another point that should be considered concerns the distinction between a confession of an accused and a statement of a witness (or of another defendant in the same indictment). Consider a case in which the confession of an accused is also used as evidence against another defendant (in one indictment). Let us assume that because of various defects in the investigation, the court decides that the confession should not be admissible against the accused who confessed because of a doubt as to its credibility. Is it possible that the very same evidence will be admissible against another defendant in the indictment? (See A. Stein, ‘Section 10A of the Evidence Ordinance and its Interpretations: a Positive Development or Danger of a Miscarriage of Justice?’ 21 Hebrew Univ. L. Rev. (Mishpatim) 325 (1992), at p. 339, footnotes 15-16). I think that case law has not gone so far as to hold that it is possible to rely on the statement against the other defendant, even if it is inadmissible in evidence against the person who made it because of the issue of credibility (the problem arose in Hazan v. State of Israel [98]; see the opinion of Justice S. Levin, at p. 526). I fear that the adoption of the doctrine is likely to lead to a slippery slope that in the end will result in a confession that is inadmissible against one defendant because of the problem of credibility (under s. 12 of the Evidence Ordinance) serving as a basis for a conviction of another defendant (according to the tests of the general doctrine).

According to my colleague’s position, we should examine the seriousness of the offence within the framework of all the considerations that the court should take into account when it decides how to address illegally obtained evidence. In other words, the more serious the offence, the less justification there will be for excluding the illegally obtained evidence. I agree with this only when there is no problem of credibility for a reason that would exclude a confession under s. 12 of the Evidence Ordinance according to its original interpretation. It is difficult to accept that it is not possible to rely on certain evidence in a case where the offence is a minor one, whereas it will be possible to make use of the same evidence when the offence is a serious one. The consideration of the seriousness of the offence will be permitted if the reason for the argument of inadmissibility is unrelated to credibility. Naturally, certain steps or actions of investigation authorities may be considered to create an absolute presumption with regard to undermining credibility (see Muadi v. State of Israel [36]).

7.            I shall now turn to two points that concern the facts of the case. It will be remembered that the appellant was not told by the military policeman who interrogated him that he was entitled to consult a lawyer. The policeman said to the appellant that he had the right to remain silent. Should the confession made by the appellant be excluded in these circumstances? There is no dispute that the interrogator violated his duty to notify the appellant of his right to consult a lawyer. Notwithstanding, there is no claim in the present case that there is a question as to the credibility of the confession. My opinion is that since the appellant was aware of his right to remain silent, the violation of the duty to notify him of the right to consult a lawyer, in itself, does not justify the exclusion of the confession. Had the interrogator also refrained from telling the appellant that he had the right to remain silent, it is possible that the two omissions jointly would justify the exclusion of the confession.

8.            The last point concerns the question of whether, and to what extent, we should attach weight to the intention of the interrogator, who, it will be remembered, intentionally refrained from notifying the appellant of his right to consult a lawyer. According to the position of my colleague Justice D. Beinisch, the finding that this was an intentional omission is a circumstance of considerable weight for excluding it as evidence. I will make two remarks about this: first, I have difficulty in understanding, in view of the circumstances of the case, what connection there is between the intention of the interrogator and the determination of inadmissibility. It is possible that considerable weight should be attached had the main purpose of the rule of inadmissibility been an educational-deterrent one. But according to the approach of my colleague, this is not the dominant purpose. Second, when we are speaking of a policeman whose job it is to interrogate suspects or witnesses, can we accept that such an omission is ever unintentional?!

9.            Therefore, were my opinion accepted, we would deny the appeal.

 

 

Appeal allowed, by majority opinion (Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran), Justice Grunis dissenting.

3 Elul 5765.

7 September 2005.