Evidence

Doe Co., Ltd v. Doe

Case/docket number: 
CrimApp 8225/12
Date Decided: 
Sunday, February 24, 2013
Decision Type: 
Appellate
Abstract: 

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

 

The Supreme Court (Justice Vogelman, Justices Hayut and Amit, concurring) granted leave to appeal, upheld the appeal and ruled as follows.

 

The Court considered the proceedings on the premise that the provisions of section 70(e1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter – the “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; the Court held that the appeal in Crim.App. 8225/12 was filed absent a right to appeal, but did not decide the issue of that right, since the Applicant filed an application for leave to appeal, justifying hearing the application as though it were an appeal.

 

The Court noted that the issue of a gag order prohibiting the publication of identifying details of a person suspected of committing a criminal offence calls for balancing the rule that derives from the paramount principle of public proceedings and one’s right to dignity, a good reputation and privacy. The principle of public proceedings and the public’s right to know are the rule, and under extreme circumstances they will yield to the need to protect a suspect’s reputation and privacy. One such circumstance is detailed in section 70(e1)(1) of the Act, and gives the Court discretion to prevent identification of suspect where the interest in protecting his reputation outweighs freedom of expression and the public’s interest to know. The Court will prohibit publication on two aggregate grounds: the suspect must show that the publication will result in grave harm to him; preventing such grave harm should prevail over the public interest in publication.

 

The Court noted that disclosing an investigation of interest, coupled with the possibility to publish information on the Internet anonymously, increases concern that a suspect’s identity will be exposed despite having imposed a gag order in his case. The greater the public interest, the greater the chances that the suspect’s identity will be exposed and “grave harm” will result. There is a great deal of uncertainty in evaluating such likelihood. The Court held that the possibility that a gag order will be violated should be evaluated when considering whether to prohibit publication of additional details, to the extent that imposing a gag order on the details of the entire matter is warranted. The Court added that it is incumbent upon it to additionally consider the likelihood that publishing details of a matter under investigation even without [publishing] the suspect’s name would result in his identification and cause him “grave harm”. This likelihood of identification and extent of harm will be examined on a case-by-case basis. The Court detailed, without exhaustion, the following considerations: the Court held that a gag order is presumed to be complied with and is sufficient to prevent identification. A suspect wishing to prevent the publication of further details, to the point of imposing a gag order on the details of the entire matter, must show that in his circumstances there is a substantial concern that the order will be violated, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing that harm outweighs the public interest in publication.

 

The Court held that balancing between extent of the “grave harm” to the Respondent that will likely result from the qualified publication, which is not high, and the public interest in publication, the matter’s publication should be permitted, while omitting the Respondent’s name and any identifying detail. Accordingly the appeal was upheld and the Magistrates Court’s order reinstated. The Court emphasized that the aforesaid does not amount to pronouncing on the proper balance between these interests if the decision not to prosecute the Respondent becomes final.

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

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.

 

Full opinion: 

Almaliach v. State

Case/docket number: 
CrimA 149/12
Date Decided: 
Monday, September 24, 2012
Decision Type: 
Appellate
Abstract: 

 

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

 

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

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

Justice E. Arbel

 

JUDGMENT

 

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

Indictment

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

The district court’s judgment

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

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

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

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

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

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

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

 

 

 

 

 

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

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

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

The appellant’s arguments

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

 

 

 

 

 

CrimA 149/12     Almaliach v. State of Israel           7

 

 

 

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

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

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

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

Respondent’s arguments

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

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

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

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

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

Discussion

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

Conviction on the basis of DNA evidence

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

40.          Collection and handling of the evidence

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

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

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

The forensic findings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conviction on the basis of the DNA that was found

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

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

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

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

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

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

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

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

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

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

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

Appeal of the sentence

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

Final comments

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

 

Justice U. Vogelman

 

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

 

Justice T. Zilbertal

 

I concur.

 

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

24 September 2012.

Full opinion: 

State v. Makor Rishon Hameuhad (Hatzofe) Ltd.

Case/docket number: 
LCrimA 761/12
Date Decided: 
Thursday, November 29, 2012
Decision Type: 
Appellate
Abstract: 

Facts:  A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished between two groups of photographs that had been taken: one series consisted of pictures of the actual attack on the district headquarters and conformed to the Deputy Regional Commander’s statement made as part of the investigation, while the pictures in the other series portrayed events that occurred at a distance away from the base. The district court ordered the respondents to hand over the first series of photographs to the police, but that the privilege could not be removed with respect to the second group of photographs. However, it also found that the police could request a court order pursuant to section 43 to have this second group of photographs handed over as well, the extent that an investigation had been initiated regarding the events that they documented and that the photographs could be relevant to that investigation.

 

Held: (Justice Rubinstein) Information which can lead to the identification of a journalist’s source and which was provided with the expectation that it will be kept confidential will be covered by the journalist’s privilege. However, the journalist’s privilege can be removed if the three-part Citrin test is met.  In previous decisions, the Court has concluded, based on the Citrin rule, that the journalist’s privilege applies, narrowly, only to the direct questioning of a source by a journalist. The reason for the Citrin test is to balance the value of a free press against the interest in investigating criminal activity and the pursuit of the truth. The privilege can be removed pursuant to the Citrin test if the information that is sought is shown to be both relevant and significant, and if it is proven that the authorities have no available alternative through which the information can be obtained. Another relevant matter will be the issue of whether the source shared the information with the journalist with an expectation that it will be kept secret. A promise of confidentiality is not determinative, but it is a relevant factor.

 

Applying the Citrin rule specifically to this case, the photographs satisfy the relevancy and substantiality requirements established in that case. However, the third requirement – a showing that the authorities have made sufficient effort to obtain the requested information through other means – has not been satisfied, although the police may submit such proof in a further request to the magistrate’s court for an order pursuant to section 43 of the Criminal Procedure Ordinance. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

LCrimA 761/12

 

1.    State of Israel

 

v.

 

1. Makor Rishon Hameuhad (Hatzofe) Ltd.

2. Miriam Tzachi

3. Israel Press Council, Amicus Curiae

 

 

The Supreme Court sitting as the Court of Criminal Appeals

Application for Leave to Appeal the Decision of the Jerusalem District Court (Judge M.Y. Hacohen), dated 3 January 2012, in MApp 035991-12-11

[2 April 2012]

Before Justice E. Rubinstein, U. Vogelman, I. Amit

 

Facts:  A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished between two groups of photographs that had been taken: one series consisted of pictures of the actual attack on the district headquarters and conformed to the Deputy Regional Commander’s statement made as part of the investigation, while the pictures in the other series portrayed events that occurred at a distance away from the base. The district court ordered the respondents to hand over the first series of photographs to the police, but that the privilege could not be removed with respect to the second group of photographs. However, it also found that the police could request a court order pursuant to section 43 to have this second group of photographs handed over as well, the extent that an investigation had been initiated regarding the events that they documented and that the photographs could be relevant to that investigation.

Held: (Justice Rubinstein) Information which can lead to the identification of a journalist’s source and which was provided with the expectation that it will be kept confidential will be covered by the journalist’s privilege. However, the journalist’s privilege can be removed if the three-part Citrin test is met.  In previous decisions, the Court has concluded, based on the Citrin rule, that the journalist’s privilege applies, narrowly, only to the direct questioning of a source by a journalist. The reason for the Citrin test is to balance the value of a free press against the interest in investigating criminal activity and the pursuit of the truth. The privilege can be removed pursuant to the Citrin test if the information that is sought is shown to be both relevant and significant, and if it is proven that the authorities have no available alternative through which the information can be obtained. Another relevant matter will be the issue of whether the source shared the information with the journalist with an expectation that it will be kept secret. A promise of confidentiality is not determinative, but it is a relevant factor.

Applying the Citrin rule specifically to this case, the photographs satisfy the relevancy and substantiality requirements established in that case. However, the third requirement – a showing that the authorities have made sufficient effort to obtain the requested information through other means – has not been satisfied, although the police may submit such proof in a further request to the magistrate’s court for an order pursuant to section 43 of the Criminal Procedure Ordinance.

Appeal is granted in part.

Legislation cited:

Criminal Procedure Ordinance (Search and Arrest) [New Version] 5729-1969, s. 43

Evidence Ordinance [New Version] 5731-1971, ss. 49, 50, 50a, 51

Penal Code, 5737-1977, s. 117

Prohibition of Defamation Law, 5725-1965

Protection of Privacy Law, 5741-1981

 

Israeli Supreme Court cases cited:

[1]        MP 298/86 Citrin v. Israel Bar Association Disciplinary Court, Tel Aviv [1987] IsrSC 41 (2) 337.

[2]        CrimApp 9305/88 A. v. Al Mamuniya Girls School (2008) (unreported).

[3]       CA 1761/04 Sharon v. State of Israel [2004] IsrSC 58(4) 9.

[4]       LCrimA 5852/10 State of Israel v. Shemesh [4] (2012) (unreported).

[5]        HCJ 73/53 Kol Ha’am v. Minister of the Interior [1953] IsrSC 7 871.

[6]       HCJ 243/62 Israel Film Studios Ltd. v. Levy [1962] IsrSC 16 2407.

[7]       HCJ 14/86 Leor v. Film and Play Review Council [1987] IsrSC 41(1) 421.

[8]                           HCJ 680/88 Schnitzer v. Military Censor [1989] IsrSC 42(4) 617.

[9]                           LCrimA 7383/08 Ungerfeld v. State of Israel (2011) (unreported).

[10]         CA 723/74 Ha’aretz Newspaper Publisher Ltd. v. Israel Electric Corp.  [1977] IsrSC 31(2) 281.

[11]         HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture [1984] IsrSC 38(3) 233.

[12]         HCJ 1736/10 Lieberman v. Director of the Internal Police Investigations Department (2011) (unreported).

[13]         HCJ 2759/12 Weiner v. State Comptroller (2012) (unreported).

[14]         HCJ 172/88 Time, Inc. v. Minister of Defense (1988), IsrSC 42(3) 139.

[15]         LCA 6546/94 Bank Igud Le’Israel Ltd. v. Azulai [1995], IsrSC 49(4) 54.

[16]         LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency [2000] IsrSC 55(3) 661.

[17]         LCA 2235/04 Israel Discount Bank Ltd. v. Shiri (2006) (unreported).

[18]         CrimApp 4857/05 Fahima v. State of Israel (2005) (unreported).

[19]         LCA 1412/94 Hadassah Medical Federation Ein Kerem v. Gilad [1995] IsrSC 49(2) 516.

[20]         CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006] IsrSC 61(1) 461.

[21]         CA 2967/95 Magen veKeshet Ltd. v. Tempo Beer Industries Ltd. [1997], IsrSC 51(2) 312.

[22]         CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Corp. [1994] IsrSC 48(3) 749.

[23]         HCJ 337/66 Estate of Kalman Fital v. Holon Municipality Assessment Commission [1966] IsrSC 21(1) 69.

[24]         LCA 2498/07 Mekorot Water Company Ltd. v. Bar (2007) (unreported).

[25]         CA 5653/98 Peles v. Halutz [2001] IsrSC 55(5) 865.

[26]         HCJ 844/06 University of Haifa v. Oz [2008] IsrSC 62(4) 167.

[27]         LCA 8943/06 Yochanan v. Cellcom Israel Ltd. (2009) (unreported).

[28]         CrimA 8947/07 Honchian v. State of Israel (2010) (unreported).

[29]         CA 44/61 Rubinstein v. Nazareth Textile Industries Ltd. [1961] IsrSC 15(2) 1599.

[30]         BAA 5160/04 Ashed v. the Jerusalem Regional Committee of the Israel Bar Association  [2005] IsrSC 59(6) 223.

 

Israeli District Court cases cited:

[31]         CC (Jerusalem) 455/94 Hachsharat Hayishuv v. Reshet Schocken Ltd. (1996).

[32]         CC (TA) 721/95 Kazarshvili v. Bank Mercantile Discount [1995] 5756 District Cases (2) 402.

[33]         MP (TA) 90742/09 Channel 10 News v. Moshe Katzav (2009).

[34]         CC (TA) 1121/07 Glatt-Berkowitz v. Kra (2011).

[35]         MP (Jerusalem) 2014/03 Kra v. State of Israel (2003).

 

United States cases cited:

[36]         Branzburg v. Hayes, 408 U.S. 665 (1972).

[37]         Gonzales v. Nat'l Broadcasting Co., Inc., 194 F.3d 29 (2nd Cir. 1999).

[38]         In re Grand Jury Subpoena, Judith Miller, 438 F. 3d 1141 (D.C. Cir. 2006).

[39]         Heathman v. United States District Court, 503 F.2d 1032 (9th Cir. 1974).

[40]         Baker v. F & F Investment 470 F.2d 778 (2nd Cir. 1972).

[41]         Lewis v. United States, 517 F.2d 236 (9th Cir. 1975).

[42]         In re Miller, 397 F.3d 964 (D.C. Cir. Ct. 2005).

 

Canadian cases cited:

[43]         R. v. National Post, [2010] 1 S.C.R. 477.

[44]         Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572 (S.C.C.).

[45]         O'Neill v. Canada (Attorney General) (2006), 213 C.C.C. (3d) 389 (Ont. S.C.J.).

[46]         Globe and Mail v. Canada (Attorney General) [2010] 2 S.C.R. 592.

 

For the petitioner – N. Granot

For respondents – H. Olman

For the amicus curiae – Y. Grossman, O. Lin, N. Shapira

 

JUDGMENT

Justice E. Rubinstein

1. This is an application for leave to appeal a decision of the Jerusalem District Court (Judge M.Y. Hacohen) in MiscApp 35991-12-11, issued on 3 January 2012. In that decision, the district court granted the appeal of the respondents against the decision of the Jerusalem magistrate’s court (Judge Rand) Misc. Order 27190-12-11, issued on 15 December 2011. The issue raised in this case is the application of a journalist’s privilege.

 2.   The case involves photographs taken by respondent 2 in the framework of violent demonstrations. After the events took place, the police asked respondent 2 (by way of issuing an order) to deliver to the police the pictures she had taken during the events. In response to the order, respondent 2 argued that the pictures were subject to the journalist’s privilege regarding the identification of her sources because their disclosure would lead to such identification. The main issue under dispute here is the scope of that privilege.

3.    On the night of 12 December 2011 - 13 December 2011, Jewish demonstrators carried out violent disturbances at the Ephraim District Brigade Headquarters, and infiltrated the headquarters base and injured  the Deputy Commander of the brigade. Following these events, on 14 December 2011,  a request was made to the magistrate’s court for an order to produce documents pursuant to s. 43 of the Criminal Procedure Ordinance (Search and Arrest) [New Version] 5729-1969 (the Criminal Procedure Ordinance), in which the court was asked to order the respondents to deliver to the Israel Police photographs that documented the events.

4.    The request was supported by the Deputy Brigade Commander’s statement (marked as P/1), in which the event was described as a mass infiltration of the District headquarters base, during the course of which one of the demonstrators hit the deputy commander’s head with an object, and lamps filled with paint were thrown at his vehicle. The deputy commander also stated that after the demonstrators were repelled, three tires were set on fire on the road leading to the district headquarters base, and that respondent 2 (hereinafter: “the photographer”) was found among the demonstrators, while she was photographing the events. She informed him that she worked for the Makor Rishon newspaper (which is operated by respondent 1).

5.    The magistrate’s court ordered the production of the requested material and ruled that if a claim of privilege were raised, the material could be placed in a closed envelope and a hearing could be held in the presence of both parties; this is what actually occurred. During the hearing the petitioners argued that the photographer had not photographed the infiltration of the base and the attack on the deputy commander, but had instead taken pictures at a different event, which took place several hundred meters away from the base, in which no military commander had been attacked. It was also argued, and this is the main point, that the photographer had been invited to photograph the demonstration on condition that her sources not be disclosed in any manner.

6. In a decision dated 15 December 2011, the magistrate’s court emphasized that according to the rule developed in MP 298/86 Citrin v. Israel Bar Association Disciplinary Court, Tel Aviv [1], per President Shamgar (a case which was decided by a single judge panel but the rule of which has since been accepted as a deep-rooted principle), the journalist’s privilege is a qualified privilege that applies to the sources of the information; but this rule was expanded in the case law of the district courts, and has also been applied to the journalist’s information, when such information can lead to the disclosure of the identity of the source. It was nevertheless held that in this case the requested material is the information and not the source, and that there is no proof that the disclosure of the information will disclose the identity of the source.

7. The court therefore decided to remove the privilege. The court emphasized that the requested information was relevant to the investigation; that the alleged crimes were serious and that there was a public interest in exhausting all avenues of investigation as quickly as possible. The petitioners claim that the production of the photographs would lead to the disclosure of the identity of their source. The court emphasized that there had been no need for any source’s cooperation in the creation of the information being sought, since the information was “caught in the journalist’s net” and it could not be presumed that the removal of the privilege would have a substantial impact on the ability to gather such information in the future. The court therefore ordered that the material be produced. The petitioners appealed this decision to the district court.

The district court

8.    There were three main issues in this appeal. The first was the applicability of an order to seize pursuant to s. 43 of the Criminal Procedure Ordinance in this case; the second was the magistrate court’s holding that a privilege that protects the sources of information does not apply to the photographs; and third, the manner in which the “three-part test” for the removal of the privilege was applied in accordance with the Citrin rule. We begin by noting that this test examines three points – the relevance of the material to an investigation, the nature of the information and the ability to obtain it from other sources.

9.    The district court also ruled that application request for the seizure of journalists’ material pursuant to s. 43 of the Criminal Procedure Ordinance should not be used on a routine basis, since the police can use alternative means to access the material that they need. Nevertheless, the court held that the request was justified under the circumstances, because serious crimes had apparently been committed – crimes which require that they be investigated quickly – and because there were no other means with which the events were documented other than the photographer’s pictures. However, it has been noted that the magistrate’s court did not examine the matter of which investigative activities were carried out before the request was submitted, as required in the context of application request for an order pursuant to s. 43.

10.  The court also noted that when a privilege claim is raised against an order pursuant to s. 43 of the Criminal Procedure Ordinance, the court must – as a preliminary step – review the material for the purpose of determining if it can potentially disclose the identity of a source. And thus, after the review, the district court found that a distinction could be made between two groups of pictures: those which conformed to the testimony of the deputy commander (on the basis of which the order was requested) and those which are not “direct documentation of the events described specifically in P/1” (which is the testimony of the deputy commander). The court noted that with respect to the pictures that conform to exhibit P/1, there was one series of pictures that documented three tires burning on the road, as well as pictures of IDF soldiers arriving at the site, and of an IDF officer speaking with an additional person. The court noted that there was no documentation of the person who had set fire to the tires or of the fact that they had been put on fire. Regarding the group of pictures that are not relevant to exhibit P/1, the court noted that these were part of a different series of pictures, which documented an event that could have had a serious criminal aspect to it, and that event did not appear to have taken place close to the army base, near it or in the presence of military personnel. It was also noted that a number of individuals appear at that event, some of whom can be identified; that there are no dates on these pictures, and they do not identify direct damage to persons or to property. This distinction – between the two groups of pictures – served as a basis for the court’s discussion of the question of the privilege and whether the tests set out in Citrin [1] for the removal of that privilege have been met. Before dealing with the question of the removal of the privilege, the court must deal with the scope of the privilege – which is the core of the dispute in this case.

11.  The district court ruled that the journalist’s privilege extends not only to the sources of the information, but also to the journalist’s information itself, including photographs. The reason for this is to encourage sources to cooperate with journalists, as held in CC (Jerusalem) 455/94 Hachsharat Hayishuv v. Reshet Schocken Ltd. [31], per (then) Judge Adiel). It was noted that this approach has been the norm in the case law of the district courts, but has not yet been decided by the Supreme Court.

12.  The district court did not adopt the test presented by the magistrate’s court for examining the application of the privilege. The magistrate’s court reasoned that the “fact that this was an event involving a large group and the fact that this was a documentation of something that happened ‘in the open’, and which was caught in the journalist’s net, is enough to undo the privilege claim”. The district court believed that the magistrate’s court erred in presuming that the pictures conformed to the event described in exhibit P/1; and that this error occurred because the magistrate’s court it did not review the pictures. The district court also found that, since the sources of the information had invited the photographer to memorialize the events, the magistrate’s court erred in finding that cooperation between the photographer and the source was not needed to create or obtain the information,.

13.  It was stressed that according to the holding in CC (TA) 1121/07 Glatt-Berkowitz v. Kra [34] , per Judge Zamir, a contract arises between a journalist and a source who does not want to have his identity disclosed, and the exposure of the identity of that source would amount to a breach of contract; that the journalist and the source have a legal relationship of “neighbors”, and the journalist therefore owed a duty of care toward the source, and  the  disclosure of his identity could be considered to be the commission of a tortuous wrong; and that the special relationship between the source and the journalist is not only a private interest of their own, but is also an important interest for the entire public. It was held that under the circumstances, there is a public interest in honoring the agreement between the photographer and the source, so as not to deter informants from cooperating with journalists.

14.  Regarding the application of the privilege in this case, the district court held that even though some of the pictures were photographed in public, the information is indeed covered by the journalist’s privilege in light of the photographer’s undertaking not to pass them on without the source’s consent. In order to examine the issue of whether it is necessary to remove the privilege, the court held that it must determine whether the tests developed in Citrin [1] have been satisfied. Regarding the first test (the issue of whether the photographs are relevant to the investigation) it was held, as stated, that the two series of pictures – the “burning tires” and the “remaining pictures” – should be treated differently. With regard to the “burning tires” group, it was noted, that in light of the respondents’ agreement to provide the police with any “direct documentation” of the events described in exhibit P/1, they must be delivered to the petitioner; and in any event, the court held, this was relevant documentation. As to the remaining photographs, which include pictures that appear to document an event that was potentially criminal, the court held that it does not conform to the description of the events in exhibit P/1, and the degree of its relevancy is therefore reduced.

15.  With respect to the second test, the court held that the issue regarding which the order was sought was an important one in which the public had a very significant interest. Regarding the third test – the existence of an alternative method for obtaining the requested evidence – the court held that not enough had been done to obtain it. The court noted that in the hearing held on 22 December 2011, the respondents stated that they would not object to delivering the pictures, to the extent that they were direct documentation of the infiltration into the regional headquarters base and of the attack on the deputy regional commander.

16.  In the course of its discussion of the scope of the privilege and before ordering that it should be removed, the district court distinguished between a public event to which a journalist or photographer is invited by sources, with a commitment being made to the source not to publicize information without the source’s consent, and a public event at which other photographers and filming crews are present – who were not invited by the participants. It was held that the privilege issue should be given extra weight in cases of the first type, in light of the importance of maintaining the trust that sources and journalists have in each other, and to prevent the “chilling effect” that could be created by a fear that information will not be kept confidential. However, it was also said that if a journalist has taken photographs at an event with an apparent criminal aspect, in a public space, and the photographer argues that a promise was made to the source not to publicize it, the court must question the journalist with regard to the sincerity of his claim before granting the petition for an order pursuant to s. 43 of the Criminal Procedure Ordinance. On the other hand, when a journalist is at the site of an incident, either as a matter of coincidence or having arrived there without the source having stipulated that material should be published only with his consent, it is doubtful that the privilege applies, and the material must be provided to the police.

17.  In conclusion, as stated, the court held that a distinction should be made between the two groups of photographs. The series showing the burning tires were ordered to be handed over to the police. With regard to the remaining photographs, including those providing apparent documentation of a criminal event – the court held that insofar as an investigation has begun and the petitioner believes that this information is required, the petitioner can ask the court for an order pursuant to s. 43 of the Criminal Procedure Ordinance. Note that the court rejected a “supplementary argument” that the petitioner submitted, finding that it was an attempt to broaden the factual and legal picture with respect to exhibit P/1 and to add further facts, claims and descriptions that were not included in exhibit P/1, for the purpose of removing the privilege with respect to the second group of pictures as well.

 

The petitioner’s argument

18.  The petitioner’s main argument is that the district court expanded the Citrin rule to reach the information itself and not just  the sources of the information, and that other district courts have also expanded the rule in the same way – and that this expansion is inappropriate so long as the legislature had not seen fit to anchor the journalist’s privilege in any statute. The petitioner argues that the rationale underlying the journalist’s privilege – the public interest in having information flow from the sources to the journalists – is sufficiently protected by the granting of privilege to the sources of the information only, and that its expansion to cover the journalists’ information will lead to the flow of selective information, as dictated by the interests of the sources.

19.  It is further argued that in this case the district court expanded the Citrin rule to reach not only the information that had been provided to the journalist and which can endanger the source, but also information that has not been provided to the journalist but of which the journalist became aware in the context of objective documentation, while he was present at a specific incident; and that the district court extended the privilege in this way because a promise had been given to a source not to publish the latter information without approval. It is argued that the application of the privilege only because of the existence of a promise given by the journalist to the source can also lead to the flow of selective information, as dictated by the interests of the sources.

20.  Regarding the information itself – the pictures – the petitioner argues that the district court erred in distinguishing between the two series of photographs, in the sense that it did not view them as pictures of a single event related to the infiltration of the Efraim Regional Headquarters. The petitioner argues that the order pursuant to s. 43 turns on material that documents the “events on 12 December 2011- 13 December 2011 adjacent to the Efraim Regional Brigade Headquarters”. It was argued that the Deputy Regional Commander’s statement was provided to create the foundation for the request for an order, not in order to define and restrict the entire investigation to the narrow sector in which the events described in the statement occurred. It is also argued that the district court should have accepted the supplementary argument regarding the scope of the investigation – a matter which the state sought to appeal.

 

The respondents’ arguments

21.  The respondents’ main position is that the disclosure of the pictures will expose the identity of the source and that the pictures are therefore covered by the journalist’s privilege. With regard to the scope of the privilege, the respondents’ argument is that according to various draft laws submitted over the years regarding the journalist’s privilege, the privilege should apply not only with respect to the identity of the source, but also to the journalists’ information.  Regarding the application of Hachsharat Hayishuv [31], the respondents argue that since it had been held in this case – as a factual matter – that the disclosure of the pictures would lead to the disclosure of the source’s identity, there is no need to decide the issue of whether the journalist’s privilege will also apply to information in general, separately from its significance for the source or for the maintenance of confidentiality regarding his identity.

22. It is also argued that a contract is entered into between a journalist and the source regarding the non-disclosure of the source’s identity of the information other than with the consent of that source; that pursuant to the Rules of Professional Ethics of Journalism, a journalist may not disclose information (in accordance with the ruling of the district court, at p. 8, lines 13-15); and that the journalist owes a duty of care to the source because of the relationship between them, as the court held in Glatt-Berkowitz [34].

23. Regarding the public nature of the event that was documented, the respondents base their argument on the district court’s decision, and reject the petitioner’s sweeping claim that the privilege does not apply whenever the documentation is of an event that occurred in a public place.

24. The respondents’ rely on the district court’s ruling with respect to the application of the Citrin test as well, and argue that the pictures do not satisfy the relevancy requirement, because the district court held that as a matter of law, the pictures (other than the series depicting the burning tires) do not document the event described in exhibit P/1. The respondents also argue that the police did not exhaust all possibilities for obtaining the information from other sources before the appeal was made to the magistrate’s court for the issuance of the order. It should be noted that the respondents do not dispute that the second test– the existence of a significant  issue – had been satisfied.

Position of the Press Council

25.  The main position taken by the Press Council – which joined the case as an amicus curiae – is that the journalist’s privilege should also apply to the content of the information and not only to the identity of the source. According to the Council, in the years since the establishment of the rule of Citrin [1] (a case decided in 1986) a clear position has developed, indicating that information is protected by the privilege – a position which should be established in the case law of this Court as well. According to the Council, the privilege should apply to all information that the source provides to the journalist even if it was not provided directly to the journalist by the source, and to all information that reaches the journalist even if he obtained it solely through his own personal and professional activity without any source whatsoever having provided it to him. The Council reasons that the privilege should also apply to any analysis of such information that the journalist has carried out.

26. The Council argues that under the current circumstances, the authorities can bypass the privilege with respect to sources in various ways (such as a search of the newspaper’s offices or of the journalist’s own computer) and that the source can thus be identified and the entire objective of the privilege can thus be frustrated. It is therefore necessary to have the privilege apply to information as well, in order to ensure protection of the source. Another reason that the privilege should cover information is that the source often needs to give the journalist “background information” in order to establish his own reliability – but this information is not given for the purpose of having it made public.

27. It is also argued that the journalist’s privilege that appears in section 22 of the Rules of Professional Ethics of Journalism (approved by the Press Council on 16 May 1996) also applies to information given to a journalist “on condition that it remain undisclosed”; and that even though the violation of an ethical duty does not create legal liability, the court can determine the applicable behavioral standard by examining, inter alia, the ethical rules of the journalism profession.

28.  It is also argued that the privilege should apply to information for contractual reasons, in light of the trust relationship that exists between the parties. If a party is likely to have his identity disclosed by a journalist, he will hesitate to provide information in which the public has an interest, such as corruption. The Council also argues that it is necessary for the journalist’s privilege to apply to information as well, in order to maintain journalistic independence and to prevent the profession from becoming a “governmental arm” of the investigative authorities – because at present, information is not protected by privilege, and the  government can reach the source through the information, as stated, even if the privilege does apply to the source itself.

The main points of the discussion in the hearing before us

29. Attorney Granot argued for the petitioner that the district court expanded the scope of the privilege beyond what is necessary under the circumstances of the case, and applied it to information that does not serve to disclose the identity of the source. It is argued that this expansive view of the privilege was also applied in other district court decisions, and that this expansion harms the objective of uncovering the truth, which is the objective of the privilege itself. Attorney Ulman argued for the respondents that in the current case, the photographer was invited by her sources, and that the lower court had made a factual finding that the disclosure of the pictures would lead to the disclosure of the source’s identity. The respondents’ counsel also argues that the pictures have limited relevance (other than those that document the burning tires), and that the police did not carry out an exhaustive investigation before they applied for an order – meaning that the Citrin rules had not been satisfied. Regarding the scope of the privilege, it is argued that because the privilege is qualified and not absolute, it is proper that it should apply to a wide range of cases. Attorney Lin argued for the Press Council, noting that the protection of the source’s identity must be expanded to cover information that can lead to the disclosure of his identity as well.

Decision

30.  We have decided to grant leave to appeal, and to deliberate the case as if an appeal had been filed in accordance with the leave that has been granted. And we have also decided to grant the appeal in part. We have three concrete issues that are presented in this matter.

The first is the request pursuant to s. 43 of the Criminal Procedure Ordinance to obtain the pictures.

The second is the issue of the application and scope of the journalist’s privilege to the pictures.

The third is the question of the removal of the privilege.

Nevertheless, it is obvious that our decision will have a broader significance with respect to the issue of the journalist’s privilege in general.

Section 43 of the Criminal Procedure Ordinance  (and the argument regarding privilege in the context thereof)

31.  Section 43 of the Criminal Procedure Ordinance provides as follows:

“If a judge finds that a particular item is necessary or desirable for the purpose of the investigation or the trial, the judge may summon any person in whose possession or property it is presumed the item may be found, to present himself and present the item, or to produce the item at the time and place indicated in the summons.”

In general, a request for an order pursuant to s. 43 may not be submitted if there is an alternative method which would have a lesser impact on the autonomy of the party to which the order is issued. Requests pursuant to s. 43 are intended for cases in which a regular search and seizure proceeding is not sufficiently effective, such as when it can be presumed that the party holding the item will refuse to deliver it. The section is usually used at the police investigation stage of a criminal proceeding, and its main purpose is to move the investigation along (see CrimApp 9305/88 A. v. Al Mamuniya Girls School [2] , per Justice Arbel, at para. 8).

32.  The section has two threshold requirements, which must both be satisfied – the need for the item for the purpose of the investigation, and the possibility that it is in the possession of the party to whom the order is issued. The fulfillment of these two requirements are met does not mean that an order must be issued, but it does mean that the court will consider whether it should be issued (CA 1761/04 Sharon v. State of Israel [3] , at p. 14). In the context of this consideration, “the court must take into consideration the substantive connection between the material being requested and the needs of the investigation, and the degree to which this information is relevant” (LCrimA 5852/10 State of Israel v. Shemesh [4] , per President Beinisch, at para.11). And the most important requirement for the purposes of this case: there is generally no justification for using the section if the investigating authority has other means of obtaining the documents that it needs (Sharon v. State of Israel [3], at p. 15).

33.  A request pursuant to s. 43 of the Criminal Procedure Ordinance is generally made, at the first stage, in the presence of the applicant. If the party possessing the item objects to a request to deliver it before he has been allowed to present his arguments against its delivery, an additional hearing is held, and the court hears the party’s objections (compare, Y. Kedmi, On Criminal Procedure, Part 1, B, 755 (updated 2008); CC (TA) 721/95 Kazarshvili v. Bank Mercantile Discount [32]). The power to issue an order pursuant to this section includes the power to exercise judicial review for the purpose of examining the fulfillment of the section’s purpose; thus, even after the order has been issued and an argument has been made against the order – such as an argument based on the journalist’s privilege – the court has the discretion to decide whether or not to cancel it (Sharon v. State of Israel [3], at pp. 19-20). To sum up, when the court is faced with a request pursuant to s. 43, it can decide whether or not to grant the it on the basis of considerations that arise within the context of s. 43; it can also reject the request if it finds that the journalist’s privilege claim should be granted and that there are no grounds for removing that privilege.

34.  After reviewing the photographs, the district court found that the police had not carried out enough investigative work, as required in the context of a request for an order pursuant to s. 43 (at p. 6, line 26-28; and at p. 11, at para. 22). Nevertheless, the district court did not cancel the order for this reason, because the respondents agreed to produce any material that contained direct documentation of the event described in exhibit P/1. Therefore, we now face the issue of determining what is covered by the journalist’s privilege and what the grounds for its removal are. I will therefore add, for the sake of emphasis, that it is appropriate, in my view, for a court facing a claim of privilege to see the material in question and to review it, so that it will not be feeling its way in the dark. In my view, this is a self-understood test, and would be the way to respond to any claim of privilege or confidential material, etc.

35. I believe that the district court’s determination that the police had not carried out sufficient investigative work was sufficient ground for cancelling the order (at p. 6, para. 13 of the district court’s judgment). The court chose not to cancel the order, because the respondents had agreed to deliver the material that was direct documentation of what had been described in exhibit P/1. I find the reliance on this reason to be problematic, for two main reasons.

36.  First, it appears that we cannot say that the respondents’ counsel “agreed” to provide the pictures as stated; rather, he clarified that if there was direct documentation of the events described in exhibit P/1, it could be presumed that the court would remove the privilege. He noted that “as to the court’s question, I respond . . . that if the pictures show one of the demonstrators hitting the Deputy Brigade Commander, then according to the required considerations, I would have certainly have expected the court’s  decision to be that the pictures should be disclosed” (District Court transcript for 22 December 2011, at p. 6, lines 17-19), and later on “all that is needed to determine is whether the pictures document the attack. And if they do, there is reason for disclosing them because of the seriousness of the event, and the balancing that has been prescribed in the case law” (at p. 7, lines 30-32). These remarks should be seen in light of the fact that the respondents’ counsel knew at that stage that the pictures do not directly document the attack on the Deputy Brigade Commander. The counsel made this argument several times (for example, at p. 4, lines 30-32); however, the main principle within the respondents’ argument, throughout the entire trial was – and remains – that all the pictures are subject to the privilege and that they should not be disclosed.

37.  Second, and this is the main point: even if the respondents’ counsel had in fact, with these remarks, agreed to hand over the pictures that included direct documentation of what is described in exhibit P/1, to the extent that he believed that the privilege applied to such pictures – it appears that it was not in his power to give such consent. The journalist’s privilege is a qualified privilege, and only the court has the authority to remove it. The power to waive the privilege is given to the source and only to the source. (Y. Kedmi, On Evidence Part 3, (2009) (Hebrew), at p. 1147). The litigants participating in the trial cannot consent to remove the privilege from the material, which does not belong to them, other than with the consent of the source (ibid., at p. 1017). Throughout the proceedings, the respondents’ claim was and remained that the disclosure of the information will lead to the disclosure of the source; and that the source had been promised that the information would not be disclosed. All of this indicates that the cited remarks made by the respondents’ counsel cannot be relied upon as the basis for a waiver of the privilege. This is also indicated by the fact that in practice, before the court directed that the “agreed upon” pictures should be handed over, the court discussed the question of whether the Citrin tests regarding the need to remove the privilege have been satisfied.

38.  In summation – an order to produce items pursuant to s. 43 of the Criminal Procedure Ordinance and an argument based on privilege are two different matters. When, on the face of the matter, it appears that the conditions of s. 43 have not been satisfied, the court need not deal with the privilege claim. However, where a privilege claim has been raised, it will be discussed and the claim will be heard; nevertheless, for the purpose of issuing an order, the s. 43 conditions must be met as well as the conditions for removing the privilege. Once the court found that the police had not carried out sufficient investigative work, as the rules regarding s. 43 issues require, this was sufficient – as stated – to lead to the cancellation of the order on the basis of this approach.

39.  Since the court had instructed that some of the pictures should be handed over, on the basis of the tests for the removal of the privilege as established in Citrin [1] – and because it established, as a starting point for this purpose, that the privilege applies to the photographs – I will discuss these two stages.

Scope of the journalist’s privilege

40.  In Citrin [1] the court established a common law privilege that allows the journalist not to disclose the sources of his information (ibid., [1], at pp. 360-361), subject to the possibility that the privilege should be removed – as stated – in if the subject is relevant and substantive and is required for an investigation, in the absence of other evidence. In the instant case, the photographer was not asked to disclose her sources, but rather to hand over photographs that had been taken at the scene of the Ephraim District Brigade Headquarters base events. The respondents objected on the basis of a journalist’s privilege claim. The district court held that under the circumstances, the privilege applied to the photographs (i.e., the information), because the delivery of the pictures could lead to the disclosure of the identity of the source. This holding raised the question of the scope of the journalist’s privilege – which is the main point of the dispute that is to be decided here.

41.  Chapter C of the Evidence Ordinance establishes a number of privileges, among them privileges for various professionals such as attorneys, physicians and psychologists. The journalist’s privilege was not included in this list of statutory privileges; rather, it was created in the framework of case law. This was discussed at length in Citrin [1]. The legislature’s silence on this matter despite various attempts that were made to enact legislation regulating this issue was not interpreted as a negative arrangement, and it was held that the creation of an evidentiary rule that recognizes the journalist’s privilege reflects the recognition of freedom of expression and of the freedom of the press that flows from it. It was held that a privilege that allows a journalist not to disclose the sources of his information should be recognized (Citrin [1], at paras. 9-11, 15).

42.  We will first survey the attempts to enact a statutory privilege following the court’s adoption of the Citrin rule. This survey will document the dispute regarding the scope of the journalist’s privilege. Next, I will briefly discuss the status of the privilege in the laws of other countries. Following that, I will present the reasons for recognizing a privilege for information, and the difficulties that such a privilege entails. Against this background, I will present the scope of the journalist’s privilege and discuss the consequences of that scope. Finally, I will relate to the determinations made in the district court’s judgment.

Attempts to legislate and the Maoz Committee

43. After the decision in Citrin [1], a number of attempts were made to pass legislation on the issue – but none ripened into an enacted statute. In 1993, a Committee to Examine the Journalist’s Privilege (hereinafter: “the Maoz Committee”) was established; its chair was  Professor Asher Maoz, from Tel Aviv University Law School. The majority opinion presented in the Committee’s 1994 report recommended that the Evidence Ordinance be amended to include a journalist’s privilege, in the following language:

‘A person who has received items and documents due to his work as a journalist (hereinafter: “the information”) will not be required to disclose them, if the disclosure of the items or documents is likely to disclose the identity of the person who provided the information or if the information was given to such a person on the condition that it would not be disclosed, unless the court finds that it must be disclosed or if the informant has agreed to the disclosure’ (Emphases added – E.R.)     

44.  This text anchors the privilege first with respect to the identity of the source, and second, with respect to the information that was given with a promise that it would not be disclosed, subject to a court ruling requiring its disclosure.

45. The committee’s recommendations have not yet been realized over the course of the 18 years that have passed since the publication of its report. Over the course of those years, a number of draft laws, with various texts, have been proposed. Among others, a draft law was proposed in 2003 in the form of a private bill, by MK Avshalom Vilan (Pr./189), according to which “a journalist is not obligated to hand over evidence or information which can serve to identify the parties who were the sources of the information . . .” The explanatory material indicated that the purpose of this proposal was to anchor only a “privilege for sources”, which would also include information that leads to the disclosure of the source. In 2003, another private draft law was submitted by MK Zehava Galon (Pr./664), with the following language: “A journalist is not required to provide evidence concerning information or an item that he obtained through his work, if such information or item is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them, or evidence regarding the identity of the person who provided the item or the information . . .” (emphasis added – E.R.). The explanatory material accompanying that draft indicated that this referred to a “privilege for sources and information” which would apply not only to the source but also to the information that the source provided. An identically worded proposal was submitted in 2006 as well (Pr./17/220). The Knesset did not enact any of these draft laws as statutes.

46.  Additional draft laws were submitted in 2011 (Pr. 18/2840 and Pr. 18/2870), and these were similar in their essence to the earlier proposals. The language of the first of these was as follows:

‘A journalist is not required to provide evidence concerning information or an item which he obtained through his work, if such information or item is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them, or evidence regarding the identity of the person who provided the item or the information, unless the person has waived confidentiality, or a court has found that the evidence must be disclosed.’ (Emphasis added – E.R.)

The main output of the Maoz Committee

47.  We need to briefly note the products of the Maoz Committee’s work. The committee’s deliberations focused on four subjects: an examination of the situation regarding the journalist’s privilege, in practice; the need for the existence of the privilege and the dangers resulting from it; the desired scope of the privilege; and the need to anchor the privilege in a statute. (Maoz Committee Report, at p. 3). Various parties – including judges, police personnel, officials from various government authorities, and journalists – testified before the Committee regarding the implications of the privilege for their respective fields of work. The laws of other countries were also examined.

48.  Regarding the question of the scope of the journalist’s privilege, the Committee decided unanimously that it must apply to all the information that could lead to the disclosure of the identity of the source. However, a dispute arose between the majority and the minority views regarding the application of the privilege to different types of information.

49.  The majority’s opinion was that the privilege should apply both to information that was likely to lead to the identification of the source, and to information regarding which the journalist had agreed with the source that it would not be disclosed, such as “background information” the purpose of which is to boost the reliability of the source and his story – meaning that the privilege would be for sources and information. The minority group within the Committee proposed that the privilege should apply to the identity of the source and to any item that is likely to disclose the source’s identity  – meaning, the privilege should be a privilege for sources (at pp. 15, 25 and 46). To complete the picture, I note that the minority position – unlike that of the majority – understood that the privilege should be absolute – (except if the case involves a serious crime), such as the respondents are seeking to have applied, in this case, in one way or another.

50.  This survey leads to the following conclusion: first, the common denominator among all the draft laws and the Maoz Committee minority view was that the privilege should apply to the identity of the source and to information that would lead to the identification of the source. Second, both the draft laws from the years 2006-2011 and the proposal offered by the Maoz Committee majority opinion sought to anchor a privilege for both sources and information, but they were divided regarding the nature of the information to be protected by the privilege. The majority referred to a privilege for “items and documents . . . (hereinafter: “the information”) . . . if the information was given to such a person on the condition that it would not be disclosed”, while the draft laws referred to “information or an item – which is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them.” Thus, the privilege proposed by the Maoz Committee was one that was conditioned on an agreement between the parties, while the privilege in the draft laws was conditioned on the manner in which the court interpreted the nature of the information.

The case law of the district courts

51. The issue arose in the district courts in Hachsharat Hayishuv [31], mentioned above; in MP (TA) 90742/09 Channel 10 News v. Moshe Katzav [33]  and the already noted Glatt-Berkowitz [34], (para. 25). In Hachsharat Hayishuv Judge Adiel noted (in para. 25) “that the privilege must apply in principle to the information as well and not only to the source’s identity”, if the source had conditioned the provision of the information on the preservation of confidentiality. In Channel 10 News [33], (the then) Judge Mudrik wrote that “I personally believe that the existing privilege also includes protection of the content of the journalists’ information which the journalist promised to keep confidential, and not only narrow protection for the identity of the source”; see also Glatt- Berkowitz [34].

Comparative Law

52.  The two parties found support in the laws of other countries. And this is as it should be: the subject, by its nature, has been dealt with by the institutions of  every country in the free world. The respondents described a picture in which the scope of the privilege in a number of Western countries provides protection for both a journalist’s sources and for his or her information. The petitioner, on the other hand, presented a different picture, according to which in the common law countries, the status of the journalist’s privilege and its scope, are – at the very least – unclear. The purpose of this survey is not to identify the scope of the optimal privilege. As will be described below, the matter depends on, inter alia, the legal system of each country, the structure of each country’s legal system, and the interface between the privilege and the country’s other laws. In any event, there are no exact matches between the character of the privilege in different countries. However, this survey can shed light on the search for the various balances that can be reached between the need to expose the truth and to maintain a privilege for sources, and the rationale at the basis thereof.

U.S. law

53.  The United States Supreme Court dealt with the issue of the journalist’s privilege forty years ago in Branzburg v. Hayes [36]. Branzburg was a journalist who wrote an article about drug use in Kentucky. For the purpose of understanding the issue, he consulted with a number of drug users. Following the article’s publication, Branzburg was subpoenaed to testify before a grand jury (a proceeding leading up to an indictment) about his sources. Branzburg argued that he was protected by the journalist’s privilege, which he sought to derive from the American Constitution’s First Amendment – the Amendment that established, inter alia, the freedom of the press. The majority opinion in the case was written by Justice White. The question to be decided was whether a journalist who had been subpoenaed to testify before a grand jury and to respond to relevant questions regarding the crime being investigated could be protected by a journalist’s privilege rooted in the First Amendment. As Justice White wrote: “The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of a crime” (ibid. at p. 682). The Justice believed that a journalist is no different from any other person who was called to appear before a grand jury in the framework of a criminal investigation, and rejected the claim that the journalist’s privilege was anchored in the First Amendment to the American Constitution. The minority opinion was written by Justice Stewart, who supported the recognition of the privilege within the context of the Constitution (ibid. at pp. 725-726). As he wrote: “The reporter’s constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlies the Constitution’s protection of a free press” (ibid. at pp. 725-726). According to him, the free flow of information is a cornerstone of a free society; and the provision of broad and varied information to the citizen not only allows the citizen to learn about different opinions, but also allows for the monitoring of government authorities. Justice Steward found that the ability of the press to gather information depended on the protection of the sources of the information – protection that was based on the Constitution (ibid. at pp. 728-729):

‘[T]he duty to testify before the grand jury 'presupposes a very real interest to be protected.' Such an interest must surely be the First Amendment protection of a confidential relationship …. [T]his protection does not exist for the purely private interests of the newsman or his informant, nor even, at bottom, for the First Amendment interests of either partner in the newsgathering relationship. Rather, it functions to insure nothing less than democratic decision-making through the free flow of information to the public, and it serves, thereby, to honor the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' […]. In striking the proper balance between the public interest in the efficient administration of justice and the First Amendment guarantee of the fullest flow of information, we must begin with the basic proposition that, because of their 'delicate and vulnerable' nature […], and their transcendent importance for the just functioning of our society, First Amendment rights require special safeguards’ (ibid. at pp. 737-738).

54.  The majority opinion should be understood against the background of the structure of the American legal system. The Branzburg [36] decision referred to the issue of a journalist’s privilege arising in the framework of the First Amendment to the American Constitution, and – as noted – rejected the defense argument based on such a privilege, based on the argument that no such protection applied in a proceeding before a federal grand jury. However, this holding did not rule out the possibility of state-enacted statutes that recognize a journalist’s privilege. Indeed, following Branzburg [36], forty-nine states (all the states but one) and the District of Columbia (in which the country’s capitol city, Washington, is located) enacted state laws that anchored a journalist’s privilege – with different states establishing different ranges of protection. Some of these statutory privileges cover sources only; others provide protection both for sources and for information. Keith Werhan, Rethinking Freedom of the Press after 9/11, 82 Tul. L. Rev. 1561, 1589 (2008)). Thus, for example, California established a privilege for sources and for information which applies both to information obtained through the gathering of materials that are meant to be published, and to information the publication of which is not intended (Cal. Constitution art. 1 § 2). The District of Columbia established an absolute privilege regarding the identity of the source (D.C. Code § 16-4702 (2001), and a privilege for information which can be removed if various tests that are prescribed in the statute are satisfied. (D.C. Code § 16-4703 (2001). Florida established a qualified privilege for sources and for information (Fla. Stat. Ann. § 90.5015 (West 2004), as was established in Connecticut (Conn. Gen. Stat. Ann. § 52-146t (West)) and in Colorado (Colo. Rev. Stat. Ann. § 13-90-119 (West 2004)).

55.  Following the Branzburg [36] decision, various federal courts also recognized a journalist’s privilege for sources and for information. Thus, for example in Gonzales v. Nat'l Broadcasting Co., Inc. [37],(, the Second Circuit recognized a journalist’s privilege and held that it applied to both sources and information.

56.  Nevertheless, the trend toward anchoring a privilege in state statutes and in state judicial decisions came to a stop, to a certain degree, after the events of September 11, 2001 (see D. Ronen, The Law of Censure: Media, Freedom of Expression and National Security (2011) (Hebrew), at pp. 145-147). Thus, for example, in In re Grand Jury Subpoena, Judith Miller [38], a senior government official, Lewis Libby, the chief of staff of Vice President Dick Cheney, was suspected of having committed perjury. Various journalists were called to testify, including Judith Miller, who refused to testify about her sources and was sent to prison for contempt of court because of her refusal. The three judges on the panel of the DC Circuit Court of Appeals returned to the rule of Branzburg [36], according to which there is no federal constitutional protection for a journalist’s confidentiality. The Court did address the alternative argument regarding a privilege based on federal common law, and rejected that argument. Judge Tatel, in his concurring opinion, wrote that in principle, a federal common law privilege should be recognized:

‘In sum, “reason and experience,” as evidenced by the laws of forty-nine states and the District of Columbia, as well as federal courts and the federal government, support recognition of a privilege for reporters’ confidential sources. To disregard this modern consensus in favor of decades-old views, as the special counsel urges, would not only imperil vital newsgathering, but also shirk the common law function assigned by Rule 501 and “freeze the law of privilege” contrary to Congress's wishes’ (ibid. at p. 1172).

57.  This Appeals Court decision creates some doubt concerning the relevence herein of the state legislation and case law. It should be recalled that the case was heard in the federal district court for the District of Columbia, which, as has been noted, confers a wide-reaching journalist’s privilege. However, the existence of a state statute is not binding when a case arises at the federal level, although federal courts have found that such legislation should be reviewed. In one such federal decision, the Court of Appeals for the Ninth Circuit wrote as follows:

‘In determining the federal law of privilege in a federal question case, absent a controlling statute, a federal court may consider state privilege law. Heathman v. United States District Court [39], , at 1034 (9th Cir. 1974); Baker v. F & F Investment [40], ;, at 781-82. But the rule ultimately adopted, whatever its substance, is not state law but federal common law’ (Lewis v. United States [41], , at p. 237).

In addition, Rule 501 of the Federal Rules of Evidence provides as follows:

‘The common law – as interpreted by United States courts in the light of reason and experience – governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.’

58.  This survey shows that the existence of a state statutory privilege or one that has been established in the case law of the state courts – even if such privilege enjoys a broad scope – does not guarantee protection for a journalist in a federal court. The impact of the existence of state protections, even when they apply to both the source and the journalist’s information, is limited – due to the structure of the American legal system. While state privileges grant wide protection the net of relations between a journalist and his sources, and to journalists in general, the lack of a parallel provision at the federal level, as well as the holding in Branzburg [36], point in a different direction, toward a limitation of the privilege

Canada

59.  Canada has no arrangement that anchors a journalist’s privilege in a statute. Section 2 of the Canadian Charter of Rights and Freedoms lists a number of fundamental freedoms. Sub-section (b) provides as follows: “[Everyone has the] freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. In 2010, the Canadian Supreme Court heard an appeal brought by a newspaper, challenging an order instructing the newspaper to hand over a document that could have led to the identification of its source. (R. v. National Post [43]). The document was required for the purpose of exposing a forgery. The appellants argued that a journalist’s privilege had been established in s. 2(b) of the Charter of Rights and Freedoms. The Supreme Court rejected this argument and held that the value protected in the Charter is the right to freedom of the press only. The Supreme Court emphasized that:

‘The law needs to provide solid protection against the compelled disclosure of secret source identities in appropriate situations but the history of journalism in this country shows that the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source would not in general violate s. 2(b)’ (ibid. [43], at para. 38).

60.  The Court went on to reject, as well, the argument that the privilege is established in the common law, and noted that:

‘Journalistic-confidential source privilege has not previously been recognized as a class privilege by our Court (Moysa v. Alberta (Labour Relations Board) [44],), and has been rejected by courts in other common law jurisdictions with whom we have strong affinities’ (ibid. [44], at para. 41).

61.  Finally, the Court did recognize a case-by-case privilege, and held that the party claiming the privilege bears the burden of persuasion regarding the fulfillment of the conditions for the application of that privilege. The Court did not provide any clear outlines for the scope of the privilege, stating that:

‘When applied to journalistic secret sources, the case-by-case privilege, if established on the facts, will not necessarily be restricted to testimony, i.e. available only at the time that testimony is sought from a journalist in court or before an administrative tribunal. The protection offered may go beyond a mere rule of evidence. Its scope is shaped by the public interest that calls the privilege into existence in the first place. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant, as in O'Neill v. Canada (Attorney General) [45], . The scope of the case-by-case privilege will depend, as does its very existence, on a case-by-case analysis, and may be total or partial’ (ibid. [45], at para. 52) (Emphasis added – E.R.)

62.  It appears that Canadian law resembles the United States law, beyondthe degree of the protection provided by the law – meaning the scope of the protection provided through the privilege; in neither system is it entirely clear that the privilege actually exists in a particular case. The Canadian Supreme Court noted in this context that:    

‘The bottom line is that no journalist can give a source a total assurance of confidentiality. All such arrangements necessarily carry an element of risk that the source's identity will eventually be revealed. In the end, the extent of the risk will only become apparent when all the circumstances in existence at the time the claim for privilege is asserted are known and can be weighed up in the balance. What this means, amongst other things, is that a source who uses anonymity to put information into the public domain maliciously may not in the end avoid a measure of accountability. This much is illustrated by recent events in the United States involving New York Times' reporter Judith Miller and the subsequent prosecution of her secret source, vice-presidential aide Lewis "Scooter" Libby, arising out of proceedings subsequent to his "outing" of CIA agent Valerie Plame: In re Miller, 397 F.3d 964 (D.C. Cir. Ct. 2005) [42], at pp. 968 -72. The simplistic proposition that it is always in the public interest to maintain the confidentiality of secret sources is belied by such events in recent journalistic history’ (R. v. National Post [43], at para. 69).

63.  Later, in a different case (Globe and Mail v. Canada (Attorney General) [46], para. 19-25), the Canadian Supreme Court again heard the claim that the journalist’s privilege could be derived from s. 2(b) of the Charter. The Court rejected the argument unanimously, on the basis of the reasons expressed in the holding in R. v. National Post. Nevertheless, the Court repeated its earlier determination that the privilege could be found to apply on a case-by-case basis.

France

64.  Section 1 of the French Law of Freedom of Expression, enacted in 1881 (Loi sur la liberte de la press du 29 juillet 1881 (amended 4 July 2010), provides that “Le secret des sources des journalistes est protégé dans l'exercice de leur mission d'information du public.” (“The secrecy of a journalist’s sources is protected in the exercise of their mission to provide information to the public.”) The section protects the sources of the information and does not refer to the protection of a journalist’s information. This section has been amended several times, most recently in 2010. Sub-section (3) refers to the possibility of restricting the privilege with respect to the sources of information, either directly or indirectly, and conditions such a restriction on an essential public interest in the disclosure and on the use of methods for disclosure that are very necessary and proportionate to a legitimate purpose, but it does not obligate the journalist to disclose his sources. Sub-section (4) continues sub-section (3), and provides that an attempt to locate a source by asking a third party – meaning a party who is not a journalist or the source himself – will be deemed to be, in the language of sub-section (3), an “indirect restriction”.  Sub-section (5) establishes the tests to be applied in determining whether the privilege should be removed, and these include the severity of the crime, the importance of the information for the purposes of the prevention or punishment of the crime, and the degree to which this measure is needed in order to uncover the truth.

65.  In 2010, s. 5-100 was added to the Criminal Procedural Code, in the following language:

‘A peine de nullité, ne peuvent être transcrites les correspondances avec un journaliste permettant d'identifier une source en violation de l'article 2 de la loi du 29 juillet 1881 sur la liberté de la presse.’

And, translated into English:

‘On penalty of nullity, no transcription may be made of any correspondence with a journalist to identify a source in violation of Article 2 of the law of the 29th of July 1881 on the freedom of press.’

This section supplements the 1881 statute, and prohibits the copying of correspondence held by a journalist which identifies the journalist’s source. In addition, s. 109 of the French Criminal Procedure Code provides as follows (translated into English):  “Any journalist heard as a witness in respect of information collected in the course of his activities is free not to disclose its origins.” According to the section as well, the privilege applies only so as to protect the identity of the journalist’s sources.

66.  An additional method for preventing circumvention of the 1881 statute is derived from the provisions of the criminal procedure code relating to a search. The beginning of s. 56 of the Code contains provisions relating to the conduct of a search for evidence that was used in the commission of a crime or which relates to a crime that has been committed. Section 56-1 limits the ability to search an attorney. Similarly, s. 56-2, dealing with the conduct of a search of a journalist’s property, and permits such a search only after an order has been obtained from a judge or a prosecutor – an order which ensures that the search does not violate the journalist’s “freedom of exercise” and does not obstruct or delay the collection and creation of information in a manner that is not justified:

‘A search of the premises of a press or audio-visual communications business may only be made by a judge or prosecutor who ensures that such investigations do not violate the freedom of exercise of the profession of journalist and do not unjustifiably obstruct or delay the distribution of information.’

67.  Similarly, s. 77-1-1 provides that under certain circumstances, any person, institution or public or private organization can be ordered to provide documents (including computerized data). The section qualifies its application to the various professionals mentioned in sections 56-1-56-3 (a journalist is one of these), and requires that any production of documents must be with their consent. In 2011, a French High Court (Criminal and Civil) decision dealt with a request from the police to be allowed to obtain, from the phone company, a printout of a certain journalist’s mobile phone calls. The court saw this request as an attempt to bypass s. 77-1-1 and held that the privilege applied under the circumstances. The court emphasized that s. 77-1-1 should be interpreted in light of the 2010 amendment of s. 2 of the 1881 Freedom of the Press Law (Cass. Crim., Dec.  6, 2011, no. 11-83.970).

68.  The above shows that French law provides comprehensive protection for the identities of the sources of information, and this includes the protection of any information that leads to the exposure of a source’s identity; however, this protection does not extend to the entire relationship between the journalist and the source, and does not apply to information that does not lead to the exposure of the source’s identity. Such protection, referred to as professional confidentiality, is established in section 226-13 of the French Criminal Code. In English translation:  “The disclosure of secret information by a person entrusted with such a secret, either because of his position or profession, or because of a temporary function or mission, is punished by one year’s imprisonment and a fine of €15,000.” The courts have interpreted this section as applying to attorneys, doctors, and priests, but in connection with journalists – the interpretation has been that it applies only with respect to the identification of the sources of information.  (Muriel Giacopelli, “Obligation de deposer”, Repertoire de droit penal et de procedure penal, Editions Dalloz, 2012).

Other countries

In England, s. 10 of the Contempt of Court Act, 1981 (“Sources of Information”) establishes a qualified privilege regarding the identity of the sources of information:

‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.’

We see that a privilege with respect to sources is recognized, subject to the “interests of justice or national security or  . . . the prevention of disorders or crime.”

69.  In Germany, s. 53 of the German Procedure Law (captioned “Right to Refuse Testimony on Professional Grounds”) protects both the sources of the information and the journalist’s information. As translated into English:

‘The persons named in number 5 of the first sentence may refuse to testify concerning the author or contributor of comments and documents, or concerning any other informant or the information communicated to them in their professional capacity including its content, as well as concerning the content of materials which they have produced themselves and matters which have received their professional attention. This shall apply only insofar as this concerns contributions, documentation, information and materials for the editorial element of their activity, or information and communication services which have been editorially reviewed.’

70.  The non-exhaustive picture outlined above indicates that the law in other countries is not uniform with regard to the status or the scope of the journalist’s privilege. Nevertheless, where the privilege is recognized – either by statute or by local case law – the privilege is generally understood to provide protection for information that will lead to the disclosure of the identity of the source; it is less commonly understood that the protection reaches information in general. When the privilege is not recognized at all, the reason for such non-recognition is the concern that the assertion of the privilege will do unnecessary harm  to the principle of the need to uncover the truth.  We will now, taking all this into account, return to our discussion of the situation in Israel.

Interim summation

71.  In Israel, the need for a limited privilege for sources is undisputed. The difficulty arises when a journalist claims the privilege with respect to the journalists’ information itself. In Channel 10 News [33], Vice President Mudrik wrote as follows:

‘The claim of a privilege for the sources of journalists’ information presents considerable difficulty. The difficulty is caused by the fact that the privilege, which is the product of judicial decisions, is self-delineated by its purpose of protecting the identity of the sources and not of providing protection for the information provided by those sources. Look throughout the decision in Citrin [1]– which is the keystone of this privilege as it has been adopted in our legal system – or any of the considerable foreign decisions discussed therein – and you will find no mention of any protection for the content of information provided to a journalist.’

We are therefore faced with two questions: should we recognize a privilege for journalists’ information; and if the answer to that question is affirmative, what is the scope of the privilege that we should recognize? We will first present the reasons for recognizing a privilege for information, followed by the difficulties involved in such recognition. We will then propose, against this background, the desirable scope of the journalist’s privilege.

The reasons for recognizing a privilege for information

Background

72. The factors that support a privilege for information must first be examined in light of the contribution that the press makes to a democratic system. The constitutional starting point for this review is the right to freedom of expression. It is well known that this right enjoys a sublime supra-statutorystatus, and has been in this position for many years – dating back to at least this Court’s groundbreaking decision in HCJ 73/53 Kol Ha’am v. Minister of the Interior [5] (per (then) Justice Agranat) – “The principle of freedom of expression is closely bound up with the democratic process.” Today, we would certainly refer to it as a constitutional right; see also, HCJ 243/62 Israel Film Studios Ltd. v. Levy [6], at p. 2415. In his opinion in that case, (then) Justice Landau wrote as follows: “In order for the citizen to enjoy his freedom to exchange opinions, he needs the freedom to exchange information . . . only in this way can he create for himself an opinion which is as independent as possible regarding those questions that are of the greatest importance for the world, the society and the state”; HCJ 14/86 Leor v. Film and Play Review Council [7] , per (then) Justice Barak;HCJ 680/88 Schnitzer v. Military Censor [8]; and see also, regarding the complexity of the issue, LCrimA 7383/08 Ungerfeld v. State of Israel [9], my opinion. These principles have already become entrenched and they hold an honored position – there is, therefore, no need to say much more regarding this point.

73. Freedom of the press is derived from the right to freedom of expression (CA 723/74 Ha’aretz Newspaper Publisher Ltd. v. Israel Electric Corp.[10],per (then) Justice Shamgar, at p. 298). A proper democratic regime requires the existence of frameworks that can present to the public those matters that require discussion (Kol Ha’am [5], at p. 877). The press is meant to function as the long arm of the public, and is charged with gathering and publicizing information; the free exchange of opinions is a fundamental condition for a democratic society (HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture [11], per (then) Justice S. Levin, at p. 238. A democracy that wishes to enjoy ongoing public debate and discussion of national issues cannot be satisfied with freedom of expression that exists only in theory; the state authorities, including those involved in the criminal and administrative fields, must limit the exercise of their powers, in order to enable the practical exercise of the constitutional right (Ha’aretz v. Israel Electric Corp. [10], at p. 296). Freedom of the press also applies to aggressive journalism, but this does not mean that the freedom is unlimited; the restrictions are listed in Citrin [1]. The principle at the basis of freedom of the press is journalistic responsibility. A person’s reputation is not to be left unprotected, and it is guarded by, inter alia, the protections established in the Prohibition of Defamation Law, 5725-1965; see also the Protection of Privacy Law, 5741-1981; regarding the approach to this matter taken by Jewish law, see M. Vigoda “Individual Privacy and Freedom of Expression” Portion of the Week: Bamidbar 208 (A. Hachohen & M. Vigoda, eds., 5772).

74. The realization of freedom of the press is conditioned on the free and continuous flow of information to the public. The relationship between a journalist and his sources is the “nerve center” of this process; the need for an effective information-gathering system justifies the protection of the sources that provide information, subject to the restrictions established in Citrin [1]. The absence of proper protection creates a risk that the sources of such information will dry up. The scope of the journalist’s privilege can of course impact on a journalist’s ability to do his job. The privilege gives the journalist the freedom to obtain sources and to verify them, to be present at events and to  investigate them, and to work toward finding the information. The reason underlying this protection is not the newspaper’s or the journalist’s own particular interest – it is the interest of the public in such protection (ibid. [1], at para. 14?, at pp. 358-359). The protection of the sources of information is thus closely intertwined with the freedom of the press.

 The reasons supporting the protection of the information

75.  The privilege established in Citrin [1] was interpreted as applying  whenever a journalist is asked to give a direct answer regarding the identity of his sources, but it does not release the journalist from his obligations to respond to other questions, through which the privilege can be circumvented. Thus, when information that was developed in the context of the relationship between the source and the journalist is not protected, the obligation to deliver such material to the police, in the framework of an investigation, can – in certain situations – lead to the disclosure of the source’s identity. The protection provided by the privilege with respect to the identification of sources can be reduced, for example, through the seizure of items or documents that have the potential to lead to the disclosure of a source’s identity – items such as a telephone book, appointments diary, or personal computer. The same holds true with respect to a printout of a journalist’s telephone calls (see MP (Jerusalem) 2014/03 Kra v. State of Israel [35] , per President A. Cohen, at para. 9; and see M. Negbi, The Journalist’s Freedom and Freedom of the Press in Israel (2011) (Hebrew), at pp. 150-151). The argument is thus made that in order to protect a journalist’s sources, it is necessary to have the privilege apply to information that leads to the identification of those sources. As an ethical matter, I will not discuss the case of Kra [35] itself because I was the Attorney General who decided to investigate that leak of information regarding the questioning of Prime Minister Sharon, even though no particular person was suspected at the time of being responsible for the leak; the investigation was ordered because of a suspicion that sensitive details of the judicial inquiry had been leaked by a source within the investigative authorities or within the prosecution. Regarding the investigation of leaks, see also HCJ 1736/10 Lieberman v. Director of the Internal Police Investigations Department [12]  my opinion, at para. 25, and per Justice Hayut); see also HCJ 2759/12 Weiner v. State Comptroller [13], my opinion, at para. 3.

76.  There may be reasons for the privilege beyond protection of the sources of information. An example would be a demand addressed to a journalist that he hand over material that he surveyed at an event at which he was present (see, for example, HCJ 172/88 Time, Inc. v. Minister of Defense [14], at p. 141); there, this Court held (per Justice Barak), that “freedom of expression and freedom of the press do not protect journalists’ information against its use as investigative material by the competent investigative authorities, when there is a reasonable basis for the assumption that the journalists’ information contains information that could provide significant assistance in disclosing disturbing facts”). Of course, cases like this have various possible implications. First, the absence of protection for such information can limit the willingness of the sources of information to invite journalists to such events; this situation can also lead those participating in such events to use various means to prevent journalists from being present at these events and reporting on them. Thus, in the absence of a privilege, a journalist may refrain from participating in such events – either because he may be asked (as part of a police investigation) to hand over the content of his journalistic output or deliver a photograph that he took  – or because he could be required to testify in court (see Maoz Committee Report, solo opinion of Mr. Moshe Ronen, at pp. 46-50).

77.  Another possible situation in which a privilege for sources is insufficient is when the matter being investigated is the exposure of corruption.  Occasionally, the “minor partner” in a corruption scheme will be willing to provide details regarding the corruption, on condition that his identity is not disclosed, since the disclosure of his participation can very well incriminate him. The journalist, for his part, wants information on the “senior partner” in the corruption scheme. Nevertheless, the journalist must still examine the part played by the source (the minor partner) in order to understand the overall picture and to assess the reliability of that source – even though this is not the main point of the information that the source has provided. In order to obtain the information, the journalist must give assurances that these minor details which could incriminate the source will not be provided to the authorities (see also, Maoz Committee Report, sole opinion of Mr. Moshe Ronen, at pp. 46-50). The question is – what approach should be taken in such a situation?

The difficulties presented when a privilege for information is recognized

78.  Of course, the recognition of a full privilege for information involves substantial disadvantages as well. First, the rules of evidence are directed at serving the purpose of uncovering the truth, and the recognition of a privilege is an exception to that rule (LCA 6546/94 Bank Igud Le’Israel Ltd. v. Azulai [15], at p. 61; LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency [16], at p., 664; LCA 2235/04 Israel Discount Bank Ltd. v. Shiri [17]  per Justice Procaccia, at para. 10; CrimApp 4857/05 Fahima v. State of Israel [18]  per Justice Procaccia, at para. 5). The principle of uncovering the truth presumes that justice will best be accomplished through a comprehensive presentation of the evidence. Only in special and exceptional circumstances should recognition of a privilege be considered, in principle, when the privilege promotes values that are of greater weight than the harm done to the principle of disclosure. (See LCA 1412/94 Hadassah Medical Federation Ein Kerem v. Gilad [19] , 522 and the references cited there; Shoshanna Netanyahu “Developments Regarding the Issue of Professional Privileges”, Zusman Volume 297, 298 (1984); see Emily Ann Berman, “In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals”, 80 N.Y.U.L. Rev. 241, 255-256: “Most evidentiary rules are created to improve the accuracy of fact-finding. The common understanding is that justice is best served when all relevant evidence is placed before the fact-finder in any particular case. Privileges, on the other hand, have the opposite effect. They reduce the amount of relevant evidence that may be placed before the fact-finder in light of policy considerations that outweigh the interest in optimal fact-finding. Because evidentiary privileges have the effect of potentially leading to less-than-perfect results, they generally are disfavored and construed narrowly. The utilitarian theory of privilege posits that privileges should be recognized in circumstances where such recognition will advance policies that outweigh the resulting risk of injustice.”) The protection of a journalist’s sources and informations restricts the ability to carry out a thorough investigation, and the recognition of such protection is an exception to the rule that a witness is generally obligated to testify. The journalist’s privilege can therefore constitute an impairment of the processes of law and order and of judicial proceedings, in which the public has a strong interest. President Shamgar noted this point in Citrin [1], when he wrote that “the right to have a person’s testimony be heard, as stated, does not belong only to the litigant – but to the entire public; the propriety of the actions carried out by the entire social system is dependent on, inter alia, the existence of legal proceedings that carry out and achieve their purposes. And if testifying is an essential part of the proceedings without which the proceedings cannot be established or conducted properly, then such testimony should be seen as something in which the public has an interest, that goes beyond the narrow interest of the litigants” (Citrin [1], at p. 358).

79.  Second, a privilege that protects information can open the door to improper abuse of the use of information by the source or by the journalist, and the selective and tendentious flow of that information. Thus, for example, a source could invite a journalist to an event such as a demonstration, and demand a tendentious form of disclosure for pictures that were taken at the demonstration – such that reality is distorted and the reliability of the information as well as its objectivity is affected. Third, at a fundamental level, as distinguished from the relationships underlying the attorney-client privilege (s. 48 of the Evidence Ordinance), the doctor-patient privilege (s. 49), or the psychologist-patient privilege (s. 50), the main purpose of the relationship between the journalist and his sources – a relationship for which the privilege is sought – is the publication of information, and not its concealment. Fourth, as distinguished from the examples of above-mentioned professionals, the Journalism Ordinance does not define who is a journalist and what the conditions are for entry into the profession. The absence of obstacles to entry and the absence of express statutory supervision (as distinguished from the profession’s own Rules of Ethics) create a difficulty with respect to recognition of a privilege. Fifth, a privilege will be recognized, as stated, when the public interest in concealing the information is greater than the interest in its disclosure. Because the basis of the journalist’s privilege is the encouragement of freedom of expression, the exchange of views and the exposure of the truth – the greater the scope of the privilege, the greater the harm to its main objective. The core of the journalist’s privilege is the need to prevent the sources from being concerned about providing information to journalists. When the demand is for the disclosure of information that does not lead to the desired identification of the source, the public interest in its protection is lessened. The question of the identity and scope of the public interest is not easily answered, of course, but we must remember – this is a matter of balancing, and the same public that rightfully desires that the authorities take care not to sweep under the rug those matters that should be publicly known (it would appear that currently, the chance of such matters being concealed is less than it was in the past, because of increased transparency and virtual media) – is the same public that desires that criminals be prosecuted. In theory,  these two interests do not contradict each other, but as a practical matter, it is possible that they will, and the function of the court begins at that point.

The proper scope of the privilege

80. Until now, we have discussed the important reasons  protecting journalists’ information, on the one hand, and – on the other hand – for requiring its disclosure for the purpose of achieving justice when conducting investigative and legal proceedings. As stated, because the journalist’s privilege, like all privileges, is an exception to the rule concerning the need to pursue and disclose the truth, its scope will change when the area in which it is being applied justifies the withdrawal of the principle supporting disclosure. We do not examine the importance of the relationship between a journalist and his sources with respect to its absolute value, but rather as a value to be balanced against the public’s interest in the disclosure of the material. In order for a determination to be made that a certain evidentiary component, which is a product of this relationship, is worthy of protection, it is necessary that its unique value – as a product of the weighing of various public interests – supersedes the need for its disclosure.

If, as the courts have sometimes understood the Citrin rule to mean, the journalist’s privilege is limited to situations in which a journalist is asked a direct question about his source, the effect may be that the original purpose for the establishment of the privilege will be frustrated. It appears that the privilege should apply when the disclosure of the information can lead to the disclosure of a source’s identity. It is hard to find a real reason for making a distinction between information that was received directly from a source and pictures that were photographed as a consequence of the photographer having been invited by the source – photographs which can potentially identify the source. The journalist’s privilege should apply to both kinds of information. From a common sense perspective as well, the basis for the protection in which the public has an interest is the relationship between the source and the journalist; its basis is not a closed list of situations, such as those in which direct questions are asked of a journalist during an investigation; this principle would still be subject to the Citrin rules relating to the removal of the privilege.

81.  This is the situation with respect to information that may lead to the identification of the source. Nevertheless, I do not believe that the journalist’s privilege should be expanded to reach all information held by a journalist, as was suggested in the Maoz Committee’s proposal. Prior to the decision in Citrin [1] and afterward, a number of attempts were made to regulate the journalist’s privilege – none of which were enacted as law. Additional issues concerning the privilege – other than its scope – are also the subject of dispute, such as the question of whether it should be a qualified or an absolute privilege, and the definitional matter of which individuals will be considered to be journalists (Maoz Committee Report, at p. 24). The question of the scope of the privilege is one with potentially far-reaching consequences, and its expansion through judicial legislation beyond what is required under the circumstances of a particular case is not a desired result (compare Aharon Barak “Judicial Legislation”, 13 Mishpatim 25 (1983) at p. 47; State of Israel v. Shemesh [4], per Justice Danziger, at  para. 3, and the references cited there). In light of the consequences of the journalist’s privilege, its scope and its other significant aspects, should be developed one step at a time, in accordance with the concrete needs presented by the ruling (see ibid. [4], per President Beinisch, at  para. 9); CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [20] , at p. 540; CA 2967/95 Magen veKeshet Ltd. v. Tempo Beer Industries Ltd. [21] , at p. 322). I believe that for our purposes, the application of the journalist’s privilege to information that is likely to lead to the identification of a source is the proper development of the Citrin rule, but it should not be applied as an expansion that reaches all information, as appears to be suggested by the judgments in Hachsharat Hayishuv [31] and Channel 10 News [33]. The late Professor Ze’ev Segal wrote of the need for legislation “that expressly recognizes a broad or almost absolute journalist’s privilege, that protects the identification of a journalist’s sources and the disclosure of details that contain such information” (in The Public’s Right to Know: Freedom of Information (2000), at p. 196). In my view, his remarks go further than is necessary, and what should be privileged, as stated, are the details that include the information that is likely to expose the source. After I wrote this remark, I was made aware of the comprehensive doctoral dissertation written by Yisgav Nakdimon, Blocking Expression in Order to Enable Expression – A Proposal for the Design of the Outline of the Scope and Degree of the Understanding of a Journalist’s Privilege in the Constitutional Age (2012) (Hebrew), and see pp. 152-158, regarding his support for the protection of a source’s  identity, whether or not the source has asked for an assurance that his identity will not be disclosed, unless it was clarified that the source’s identity as the source might be disclosed (see also his introduction at p. 1X). The author does propose a privilege for information itself, under certain conditions (at pp. 160-165).

Consequences of a privilege for information

82. The above completes the discussion of the scope of the privilege. But we cannot ignore the issue of its consequences. A privilege for information that leads to the identification of the source is the equivalent, for better and for worse, of a privilege for information, including all the advantages and disadvantages of such a privilege. I will briefly discuss the primary consequences of such a privilege.

Burden of proof

As was explained above, there is a concern that a privilege for information will be exploited in a cynical manner. However, in any event, an assertion of a privilege requires proof, the burden of which is imposed on the party asserting the privilege (Sharon v. State of Israel [3], at p. 524; CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Corp. [22], at p. 797; HCJ 337/66 Estate of Kalman Fital v. Holon Municipality Assessment Commission [23], at p., 71; see also Kedmi, On Evidence, Part 3, at p. 1014). When there is a dispute regarding whether a document is subject to the privilege, it is clear, as noted above, that the court must review the material for the purpose of deciding whether the assertion of the privilege is warranted (LCA 2498/07 Mekorot Water Company Ltd. v. Bar [24], at para. 10). When the assertion of a privilege relates to information which could lead to the identification of a source, the party asserting the privilege bears the burden of persuasion. In this way, the concern regarding an ungrounded assertion of privilege can be mitigated.

Search warrant

83. As stated, it appears that a source can be identified even without asking the journalist any direct questions regarding the source’s identity. For example, using a warrant for the search of the home of a journalist, it would be possible to seize his date-book or address book, and thus discover the identity of the source. How should we treat an assertion of privilege by a journalist in the course of such a search? If the seizure of the information regarding which the privilege is asserted is allowed without any judicial review, the privilege may be emptied of all content. This is distinguishable from a situation involving an order pursuant to s. 43 of the Criminal Procedure Ordinance – when the police conduct a search, the privilege is asserted only after the warrant is issued, and because of the nature of the proceedings, the asserted privilege is not discussed prior to the issuance of the warrant. In this situation, the privilege claim must be examined before any use is made of the information (compare Y. Kedmi, On Evidence, at p. 1010). Similarly, s. 51b(a) of the Maoz Committee’s proposed legislation, provided that “if a person refuses [ . . .] to hand over information to the party that is authorized to investigate in accordance with the provisions of any relevant law – the court may issue an order to hand over documents [ . . . ]. And in sub-section (b): “No search of a person’s home or place of work may be searched [ . . . ] for the purpose of disclosing information except with a court order, and unless the conditions stated in s. 51a(b) are satisfied.”

The criminal proceeding stage

84.  The Citrin [1] decision dealt with a privilege asserted in order to prevent journalists from being forced to testify during a legal proceeding before the Israel Bar Association’s disciplinary court. However, this does not limit the application of a privilege only to situations in which it is asserted in proceedings before a court (or tribunal). A privilege is a concrete exemption – with respect to this matter – from the duty to deliver information, either in the framework of an investigation conducted by a competent authority, or in proceedings before a court, tribunal, or any entity or agency that is authorized to hear testimony (see supra, Kedmi, at p. 1007). Section 52 of the Evidence Ordinance provides that the provisions of Chapter C of the Ordinance (which deals with privileged testimony) will apply both to testimony in a court or tribunal and to testimony before an agency, entity or person who is authorized to gather testimony. This provision also applies with respect to the journalist’s privilege concerning the disclosure of sources (see Kedmi, at p. 1015; compare to Sharon v. State of Israel [3], at p. 14). The privilege therefore also applies to the police investigation stage, and is not limited to the trial stage, and it is of course subject to the relevant restrictions.

The nature of the blocked information.

85. Because we have determined that journalists’ information should be somewhat privileged in order to prevent the exposure of the sources, we must also determine the nature of this information that is entitled to the protection. Not all information that leads to the exposure of a source is necessarily entitled to protection. For example, there may be a situation in which a journalist is invited by a particular source to a particular event, but the occurrence of the event is known to all, and many other journalists also arrive at the event. The journalist will take various photographs of the event, including pictures of the source. Can the one journalist – the one who was apparently invited by the source – enjoy protection that is not made available to any other journalist? It would seem that this is an issue of which the drafters of the various legislative proposals from 2006 through 2011 were aware, and their proposals therefore stipulated that the protection would apply only to information provided by the source, and which “by its nature was provided in the belief that confidentiality would be maintained.” This language indicates a need for an objective review of the nature of the information. As noted, the proposal offered by the majority of the Maoz Committee was that information (“items and documents”) will enjoy protection if given to a journalist “on the condition that they would not be disclosed”. This language also suggests that the nature of the information should also be examined objectively; it reflects the Committee’s intention to provide very comprehensive protection for the relationship between the journalist and his sources. Such protection, as has been discussed above, is broader than the scope of the proposed journalist’s privilege – which is for information that leads to the identification of the source. Of course, the source’s demand for protection means that it is the source who has the right to assert the privilege; when the source has no interest in the protection, there is no reason for the protection to apply. It would appear that a determination of the nature of the protected information in accordance with an objective foundation will reduce the concern regarding the selective disclosure of the information. Furthermore, the undesirable situation in which the source controls the privilege may do a disservice to the rationale for the existence of that privilege. The privilege protects the source, because of the public interest in that protection. I therefore believe that an assertion of the privilege should be conditioned on the information regarding which the privilege is claimed being of the kind which, by its nature, was provided under the belief that it would be kept secret. For a broader view of the matter, see Nakdimon, Blocking Expression, at pp. 156-157.

Discussion of the district court’s holdings in this matter

86.  If my view – that protection should be extended to information that leads to the identification of the source, which, by its nature was provided in the belief that it will be kept secret – is accepted, an acceptance that would place Israel at least in a “good place, in the center,” in comparison with other countries – the district court’s holding, according to which a contractual relationship between a journalist and a source is itself justification for the application of the privilege (a view which is supported by the Press Council’s position), cannot stand in full. This argument regarding the scope of the privilege is based on the assumption that the existence of a promise establishes a journalist’s privilege; and this would mean, inter alia, that the privilege can also apply to information that does not lead to the identification of the source. This should not be allowed, except in situations in which the court is persuaded that a promise was given as a precautionary measure vis-à-vis the source, to ensure that he will not be exposed, but in such a situation the privilege will apply in any event. As a rule, the privilege is recognized on the assumption that the harm done to the objective of uncovering the truth is allowed for the sake of a clear interest – an interest which should be preferred to that objective. When the privilege protects the source from identification, such an interest does support the privilege, and we can clearly point to the party enjoying the protection; but when the privilege protects a relationship that is contractual in nature only because it is a contractual relationship, the ground for allowing the privilege is diminished. First, it is diminished because it is not clear to all what is the subject of the protection – this will only be clear to those who are parties to the agreement. Second, if the only reason for the protection is a promise, the result will be that the parties’ wishes are preferred over the public interest in discovering the truth. The desirability of such a preference is not obvious; it is, in my view, a position that is different than the position that I took in State of Israel v. Shemesh [4] (at para. 14), where I wrote that a promise made by a governmental entity must be honored; but this is not the situation in our case. Moreover, the emphasis given to the contractual issue can open the door to manipulation (even after the fact), which is not a desirable situation. Thus, the issue of whether or not a promise has been made will be considered as one of the relevant factors, but it will not have determinative weight.

87.  Another issue is the district court’s holding that the journalist is subject to an obligation, by virtue of the journalists’ Rules of Ethics, including Rule 22, which states that the privilege also applies to information provided to a journalist “on condition that it remains confidential”. With regard to this point, I find that the Rules of Ethics constitute criteria that can be considered in order to examine the reasonableness of a journalists’ behavior, but they themselves do not bind the court (CA 5653/98 Peles v. Halutz [25],, at pp. 896-897 and the references cited there). Furthermore, the Rules of Ethics need to be viewed in their entirety, and the question that needs to be asked is whether they are being observed in their entirety – including all that is imposed on the journalist, with respect to the matter of responsibility.

88.  Regarding the distinction that the district court made between a public event and one that is not public – I do not believe that this binary rule is essential for the purpose of determining the application of the privilege. I believe that it can be useful for the court when it examines the relationship between the journalist and the source. The more public the event, the less the reason for the privilege to apply. This is expressed in the examination of the nature of the information in this type of case – which is in any event open to the public, and as a rule, it will not have been provided in the belief that it would be kept confidential.

89.  Regarding the concern that journalists will not be invited to certain events and that they will thus be harmed – I have not found that this is a concern that can justify a change in the scope of the privilege. It appears that this is a general and theoretical concern, and it has not been proven that the problem will, in reality, actually arise.

 90.  Finally, the above discussion should be understood as establishing a set of flexible tools, to be used while examining each event in light of its own circumstances and with common sense, as a constant source of good counsel.

Conclusion

91.  The conclusions described above concerning the scope of the privilege relate, on the one hand, to the rationales for its existence, and, on the other hand, to the circumstances of each particular case. The question of the proper scope of a privilege for information arises in our case in the narrow context of information that leads to the identification of the source, and in that context, the conclusions reached are those which lean in favor of applying the privilege to any information that is likely to expose the identity of sources. Some of the parties’ arguments (and those of the Press Council as an amicus curiae) went beyond the issue presented in the current case and argued either for or against the holdings of various judicial decisions rendered in district courts – such as the decision in Hachsarat Hayishuv [31]; some of the conclusions reached by the district court in this case did so as well. The current proceeding is not an appeal of the decisions rendered in Hachsharat Hayishuv [31], Channel 10 News [33], or Glatt-Berkowitz [34]. However, I do believe that questions regarding the scope of the journalist’s privilege require an orderly, comprehensive and careful examination by the legislature. It is fitting that the process that began with the Maoz Committee and continued with the various legislative proposals that were made should eventually develop into concrete legislation, in which the legislature can state its position regarding all the consequences of this type of privilege. It goes without saying that our discussion does not relate to additional issues, which were deliberated by, inter alia, the Maoz Committee and which have not yet been resolved – such as the definition of the term “journalist” and the question of whether such a definition is needed; the relationship between the privilege and s. 117 of the Penal Code, 5737-1977 relating to the disclosure of information by a public servant – which is not a simple issue; the difficulty presented by the difference between the scope of the journalist’s privilege as defined by case law and the scope of that privilege in the Journalists’ Rules of Ethics, and various other issues. In the absence of an orderly legislative process, it may be that the courts will have no choice but to deal with issues that may arise in the future regarding the scope of the privilege – but which did not arise in full form in the instant case.

Removal of the privilege under the circumstances

92. Regarding the application of the privilege under the circumstances of the instant case: after the district court viewed the pictures and heard the parties’ arguments, it found that their delivery to the police could lead to the identification of the source. The court noted that “after the hearing on 22 December 2011, I decided to review the material in the sealed envelope. I did this because I believe that when a journalist’s privilege is asserted in court in the context of a petition pursuant to s. 43 of the Criminal Procedure Ordinance, it is the role of the court to conduct an examination for the purpose of determining whether the material is indeed such as can lead to the exposure of the sources of information. This is also the case, a fortiori, when there is a factual dispute regarding the content of the material regarding which the privilege is being asserted” (para. 7 of the decision dated 3 January 2012; emphases added – E.R.). Later on in the decision, it is noted that “the disc contains, inter alia, photographs which do not appear to be relevant to the subject of P/1, comprising a different series of photographs (photographs nos. 001-041 on the disc), which appear to document an event that may have involved a serious crime, and it appears that this event did not take place close to the army base, near it or in the presence of military personnel. It was also noted that a number of individuals appear at that event, some of whom can be identified” (para. 8; emphases added). The court did not find that the source appears in the photographs, but it did assume that the delivery of the photographs could lead to the identification of the source: “The question is, whether the short period of time that has passed between the events in which the offenses were committed and the time at which the request for the seizure of the photographs was submitted – before an exhaustive investigation, the purpose of which would have been to identify the participants at the event, could have been carried out – justified the appeal for the order to seize of the photographs, so that they could be used for the purpose of identification of the participants, on the assumption that their identities appear in the photographs”  (at para. 11; emphases added). Further – “beyond this, I do not accept the determination that the creation or the obtaining of the information with which we are dealing did not require any cooperation whatsoever with the source. The photographer repeated that her sources invited her to the events that she photographed and that the pictures can identify the sources. Furthermore, I believe that the ‘chilling effect’ relating to the harm done to the trust between the journalist and his sources will also apply in situations in which a journalist is invited to document events that occur in a public area, if the journalist would not have arrived at the event but for the invitation” (para. 16). This presumption reappears throughout the decision: “Indeed, as I noted, some of the pictures appear to document a different event that was commemorated by the photographer, which could, in part, be interpreted as being an event of a criminal nature. It may be that the investigative authorities, with the tools that are available to them, could have reached some of those who participated in the event by making use of the photographs” (para. 24). In light of this assumption, the court concluded that the attorney’s privilege did apply to this case (para. 20), and it therefore turned to the tests required by the Citrin rule in order to determine whether the privilege should be removed. The court also found that petitioner 2 was the only party to have documented the events, and thus that the information had been given to her in the belief that it would be kept confidential.

93. I believe that under these circumstances there is a journalist’s privilege that applies to the photographs, to the extent that their disclosure could lead to the exposure of the source’s identity. I am aware of the difficulty arising from the court’s assumption that the photographs could lead to the identification of the source, without establishing it as a factual finding. This is a difficulty that is inherent in the framework of a recognition of a privilege for information (even if it covers “only” information that leads to the identification of the source), in the context of which the party benefiting from the privilege – meaning the journalist – can make a false claim regarding the danger that the source will be identified, even in situations in which there is no such danger. This difficulty does not arise when a “narrow” privilege has been applied (such as the privilege that is understood to have been established in Citrin [1]) – a privilege that applies when the beneficiary is asked to disclose the identity of the source. While it is clear that in such a situation the disclosure of the source’s identifying details will necessarily lead to his identification, this is not clear in the situation presented in the instant case, and this is what creates the possibility that false claims will be raised. The district court was also aware of the difficulty, noting that “we cannot ignore the concern that a journalist who has photographed an event that took place in a public space, and which could have significance as establishing the occurrence of a criminal act – will falsely argue that he was invited to the event by a source who conditioned the invitation on the journalist’s promise to maintain confidentiality. It is therefore proper that in such cases, during its hearing about the request, the court should question the journalist who objects to being ordered to disclose information,  and receive an impression of whether he is telling the truth.” I accept these remarks in full, and I will therefore now move on to the issue of whether the privilege should be removed in this case.

94.  The state argues that the district court erred when it distinguished between the two series of photographs and held that only some of them conform to what was requested in the order. According to the state, the court should not have limited the scope of the order to the “narrow form” of matters relating to the Deputy Regional Commander’s statement, since the investigation related to all the events that occurred within the brigade’s sector on the dates specified in the request. Alternatively, the state argues that the court should have accepted the supplementary pleading, in which the scope of the investigation was clarified.

95.  As may be recalled, the state, in its request for the order, asked for the raw material, including the videos and still photographs “which document the events from 12 December 2011 to 13 December 2011, close to the Ephraim District Brigade Headquarters base”. Based on the relevancy test, which is carried out in the context of the three-part Citrin rule, the court, as stated, distinguished between the two series of photographs: those that conform to what was stated in the Deputy Regional Commander’s statement (P/1), and those that do not. Note that the photographs in the second series document an event with a seemingly criminal character, but the event does not appear to have occurred adjacent to the army base. The nature of this other event is not clarified; however it was held that these pictures were less relevant for the purpose of the investigation and the privilege relating to them should not be removed. I note that I have viewed the pictures, and I believe that an exact “reading” of them, without knowing the entirety of the circumstances, would be difficult.

The tests for removing the privilege

96.  The tests for removing the privilege were established by this Court in Citrin [1]. I will begin with an examination of the relevancy test. I believe that the fact that, as stated, the events are described in general language in the request does not indicate that there is no relevance to the investigation. Instead what is indicated is that the order was not sufficiently specific. There may be several reasons for this. One possible reason is that the investigative authority could not, with any measure of exactness, point to material that it had not yet seen. The Court wrote the following regarding this matter, in Sharon v. State of Israel [3]:

‘Occasionally, the prosecution has only general knowledge about which documents it requires for the purpose of the investigation, and cannot identify or describe each of them in advance. There may be instances in which it will be interested, for the purpose of the investigation, in a certain type of document relating to a certain matter, without knowing any additional details [ . . . ] In such circumstances, it should not be required, in a request for an order pursuant to s. 43, to indicate specific documents, as the appellant’s attorney wishes.

In summation, the degree to which the documents that are to be presented or delivered in accordance with a s. 43 order need to be identified or specified is a matter which is left to the discretion of the court that issues the order. The court must make that decision in accordance with the circumstances. Of course, the order must be clear, so that the party being required to provide the item can know what is being asked of it. Nevertheless, it is not essential that the requested documents be identified and described in detail’ (ibid. [3], at para. 14, pp. 21-22).  

97.  An additional reason that a request for an order may lack specificity – and it appears that this is the reason in this case – is that the investigation has not yet advanced far enough at the time the order is requested. The request for an order was submitted less than 24 hours after the events took place. In the two lower courts, the state argued that since the police knew of the existence of the pictures, they saw no reason to wait. This does not reduce the level of the relevancy of the photographs for the investigation. It should be recalled that once the order was issued, all the photographs were delivered to the court’s safe, and the respondents did not argue that there was a distinction to be made between the two series of photographs. To the extent that the court believed that the other incident does not fall within the matters described in the Deputy Brigade Commander’s statement, but does fall within the definition of the said events that occurred at the Ephraim District Brigade Headquarters, it is difficult to find, unequivocally, that the pictures do not satisfy the relevancy test. There was a single general set of events, during the course of which the pictures were taken – the pictures that were all sent together to the court without any claim being made that only some of them relate to the events in the Ephraim District Brigade Headquarters base. All that was claimed was that they were subject to the privilege. I therefore believe that the requested information was apparently relevant to the investigation, and the first test of the Citrin rule has thus been satisfied. Additionally, regarding the second test – the substantial nature of the material – there is no dispute that this is a substantial matter. Nevertheless, I do not find that the third test, which requires that the authorities show that there is no alternative way to obtain the evidence, has been met – as I have explained above. Thus, to the extent that the state is interested in the requested material, it must submit a s. 43 request to the court in which the investigative steps that have been taken to obtain the evidence are specified. The court will then act in accordance with what has been stated in this judgment.

Conclusion

98. If my view is accepted, we will hold that the journalist’s privilege preventing the exposure of a source’s identity, as established in Citrin [1], will also apply to information that is likely to identify the source, subject to the tests established in Citrin [1] for the removal of that privilege.

99. Under the circumstances of this case, the request for the removal of the privilege qualifies under the tests for relevancy and substantiality. The state can address the magistrate’s court regarding the issue of the effort being made to obtain the evidence in some other way, the third test established in Citrin [1]. I propose to my colleagues that they grant the appeal in part, in accordance with what I have stated.

 

 

Justice I. Amit

I concur with the judgment of my colleague, Justice Rubinstein, and I will add some brief remarks.

The acknowledgement of an evidentiary privilege signifies the recognition of an interest which is so valued by the legal system that the important and central value of the pursuit of the truth will be superseded by it. Thus, for example, we seek to protect the relationship of trust between a doctor and a patient, between a psychologist and a patient or between a social worker and a patient – in order to encourage the patient to utilize the services of these professions. Yet the interest in encouraging this is limited, and so the privilege that covers these relationships is a qualified one (ss. 49, 50 and 50a of the Evidence Ordinance [New Version] 5731-1971 (hereinafter, “the Evidence Ordinance”)). The trust relationships between a client and an attorney and between a penitent and a priest are given greater protection in the form of an absolute privilege, because of the strength of the interest in protecting the trust involved in these relationships (ss. 48 and 51 of the Evidence Ordinance).

Even before the decision in Citrin [1], jurists had expressed the view that the trust relationship between a journalist and his source should be recognized, and that this trust relationship should be encouraged and protected (Eliahu Harnon, “Protection of Trust Relationships: Should a Journalist’s Privilege be Recognized?”, 3 Iyunei Mishpat 542, 552 (1974); Shmuel Hershkowitz “A Journalist’s Privilege Regarding the Disclosure of the Sources of his Information”, 1 Mehkarei Mishpat 251 (1980); Yehoshua Rottenstreich, “Open Source or a Closed-Up Spring? The Issue of a Journalist’s Obligation to Disclose the Sources of His Information”, 8 Iyunei Mishpat 245 (1981)). In Citrin [1], this court gave a stamp of judicial approval to the journalist-source privilege, and as a judicially-created privilege, it is undisputed that it is a qualified privilege rather than an absolute one, as was expressly held in Citrin [1]. This means that the privilege may be withdrawn in the face of an important public interest such as an investigation directed at discovering the identities of those who have committed a serious crime (compare Time, Inc. v. Minister of Defense [14]).

2.    The decision in Citrin [1] applied the privilege with respect to the identity of the source. I agree with my colleague Justice Rubenstein that the time has come to expand the rule of that case, so that the privilege will also apply to the content of a journalist’s information, if the disclosure of the content is likely to lead to the identification of the source. The question presented to us by the parties is whether we should go one step further and expand the privilege so that it also covers the content of journalists’ information, regardless of whether or not it will lead to the identification of the source.

As we deliberate this question, we must keep in mind a number of rules that have developed in the case law regarding the privileges. These can be summarized in a few sentences, as follows:

(-) A privilege is an exception to the rule, and the rule is disclosure.

(-) Privileges are to be approached cautiously.

(-) The scope of a privilege should be construed narrowly.

(-) The burden of proof regarding the existence of a privilege is borne by the party asserting the privilege.

(For a discussion of these rules, see, for example, HCJ 844/06 University of Haifa v. Oz [26] ; LCA 8943/06 Yochanan v. Cellcom Israel Ltd. [27] , at paras. 18-19).

Against the background of these rules of thumb, we find that the case law has refused to create privileges that are based on a contractual undertaking given to a source of information regarding confidentiality, even though this may cause harm to the informant and despite the concern of a, possible “chilling effect”. (See, for example, the Oz decision – in that case, a voluntary investigative commission created by the university had given an undertaking of confidentiality.) This rule intensifies the question of whether a journalist is more important than other bodies, such that a private-contractual undertaking given by a journalist to an informant – either expressly or implicitly – will have the power to create a privilege that extends to the content of the information as well.

3.  It appears that a privilege for information – as distinct from a privilege for sources of information – was not the focus of the Maoz Committee’s deliberations. The majority opinion, which proposed that the privilege should apply to information given to a journalist in the belief that it would not be disclosed, put the primary emphasis on the concern that the disclosure of the information would lead to the identification of the sources of the information (see pp. 15 and 24 of the report). The concern regarding the exposure of the information itself that was given to the journalist on a not-for-publication basis is mentioned by the majority opinion only once (at p. 26). Nevertheless, I note that Committee member Moshe Ronen placed the issue of a privilege for information itself at the center of his opinion (ibid., at p. 46).

My colleague Justice Rubinstein surveyed the law of other countries and demonstrated that despite the fact that the press is perceived to be one of the most important tools for expression and for the exercise of the freedom of expression, many established democracies have chosen not to expand the application of the privilege to journalists’ information, when such information is not likely to lead to the exposure of the source.

It may be argued that the delivery of information to a journalist while asking that it not be publicized does not serve the public’s interest in the publication of information concerning a matter of public interest. Usually, information is given to journalist for the purpose of it being published, and the use of the journalist’s privilege as a tool for blocking information or for the purpose of creating a selective flow of information would appear to be in conflict with the objective of the journalist’s privilege. On the other hand, some types of information are given to a journalist on a not-for-publication basis, but are nevertheless essential to the journalist’s work – and if the journalist loses the ability to obtain information which is “not for quotation or for attribution”, the basis of his ability to gather information in general is also lost. From this perspective, despite the fact that the protected information itself is not published, it contributes to the publication of other information, and it thus furthers the purpose of freedom of expression and of the press, and the right of the public to know (see Nakdimon, Blocking Expression, at pp. 156-157).

Like my colleague Justice Rubinstein, I also believe that we do not need to make a final determination in this case with respect to the question of the scope of the journalist’s privilege, and we will leave that task for others, who will make that determination on the basis of concrete issues that may arise in the future (paras. 81 and 91 of my colleague’s opinion). I doubt that we need to recognize, in advance, a privilege for information given to a journalist in light of a trust relationship. In any event, the law recognizes the need to protect substantial interests, even if these do not benefit from the label of a “privilege”. A clear example of this is the right to privacy, which is not protected as a privilege, but which is anyway recognized as a powerful interest. It is common practice for a court to balance the right to privacy against the interest in uncovering the truth, in both civil and criminal proceedings (such as the issue of exposing the personal diary of a complainant in a sex crime case). The court balances these interests on an ad-hoc basis, in accordance with the circumstances of the case before it, and this is what should be done with respect to the privilege for journalists’ information as well.

Having mentioned the interest in privacy, I will further clarify that it may be that the journalist's information privilege is not asserted for the sake of the privilege of the information itself, but because the journalist is concerned that the source’s privacy will be harmed, and in such a case, the court will examine the question while balancing the interests as discussed above.

4.    Before I conclude, I note that we find that various considerations are presented in connection with the question of a privilege for journalists’ information obtained and received during the course of a mass public event – and these considerations pull in opposite directions.

A person who participates in a mass event such as a disturbance, a mob, a demonstration or a confrontation between police and soldiers and citizens, etc., has no reasonable expectation that information about an event that took place in the public arena will be privileged, nor is there any trust relationship with a journalist who arrives at the event to cover it. Moreover, it would appear that a party who invites a journalist to be present at a multi-participant event does so in order to have the journalist report on and publicize the event, and it can be argued that this could be understood to constitute a waiver of a privilege for information (compare CrimA 8947/07 Honchian v. State of Israel [28] , where my colleague, Justice Rubinstein, concluded that a party who has consented to a psychiatric examination has waived the psychiatrist-patient privilege). And with regard to waivers – the partial disclosure of information with the source’s consent would appear to constitute a waiver of the right to assert a privilege regarding the entirety of the information. Thus, the risk that the recognition of a privilege will lead to a selective and tendentious flow of information – often accomplished through falsification or manipulation of the information – has been reduced. Indeed, even with regard to an absolute privilege such as the attorney-client privilege, it is possible to conclude that the client has waived the privilege. Thus, for example, when a client meets his attorney in the presence of a third party, who is not obligated to maintain confidentiality, the assumption is that the attorney-client privilege does not apply to the matters discussed (E. Harnon, Law of Evidence, Part II, (1977), at pp. 101-102; CA 44/61 Rubinstein v. Nazareth Textile Industries Ltd. [29] [29] , at p. 1602). In addition, in certain cases, when a client discloses some of what has been stated in the framework of the attorney-client relationship, he will not be allowed to assert an attorney-client privilege. Thus, the client has the choice whether to maintain the privilege or waive it, but he may not waive the privilege only partially. (For example, if a client submits a complaint or a claim against his attorney, this will be viewed as the client’s waiver of the privilege – Limor Zer Gutman, “Ensuring Free Communication Between an Attorney and a Client Through the Attorney-Client Privilege and the Ethical Duty to Maintain Confidentiality – A Call for Reform”, Hapraklit – the David Weiner Volume 79 (2009), at p. 111; BAA 5160/04 Ashed v. Jerusalem Regional Committee of the Israel Bar Association [30], at pp.234-237.) The claim that there has been a waiver of the privilege in light of the public disclosure of the information, or in light of a partial disclosure of the information, done with the source’s consent – can be made even more strongly with respect to the journalist’s privilege, which is a qualified privilege.

In contrast, there are those who argue that the delivery to law enforcement authorities of documentation of an event that took place in the public arena can transform the journalist who has documented the event into a “sub-contractor” who gathers material for the authorities, which can lead to a number of negative consequences: the journalist’s credibility may be adversely affected and the boundaries between the authorities and the media will be blurred; access for journalists to various events will be blocked; and journalists may be subjected to violence and physical harm as well as their professional equipment, such as cameras, recording equipment, etc. (Nakdimon, Blocking Expression, at p. 164).

The Maoz Committee wavered between various considerations and noted, on the one hand, that a privilege should not be recognized for the coverage of a mass event. On the other hand, a journalist should not generally be required to provide information to law enforcement authorities.

‘We should not confer a privilege for the activity of a journalist who is covering an open media event, such as a demonstration, disturbance, etc. Regarding these, the journalist is to be treated, in principle, like any other person. Nevertheless, because of the sensitivity of the issue, the intensive involvement of journalists in the coverage of such events, and the need to ensure that they are not transformed, against their will, into police informants [ . . . ] The Committee believes a demand addressed to a journalist that he expose material that he collected while doing his job as a journalist will only be justified in unique circumstances.’

It appears that a distinction should be made between a journalist who was invited to the scene of an event by one of his sources and a journalist who arrived at an event without relying on one of his sources. A helpful test would be to distinguish between a situation in which only a single journalist is present, and one in which a number of members of the press are in attendance. At the same time, we do not, at this stage, need to make a final determination regarding this matter, and these questions and distinctions can be left for further review.

 

 

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.

 

15th of Kislev 5773

29 November 2012.

 

State of Israel v. Haggai Yosef

Case/docket number: 
LCA 3202/03
Date Decided: 
Thursday, March 4, 2004
Decision Type: 
Appellate
Abstract: 

Facts: In an action for damages for wrongful arrest and prosecution, the plaintiffs wished to summon as a witness the person who had been the prosecutor in the criminal proceedings. The prosecutor had, in the meanwhile, become a judge. The District Court decided that the judge should be summoned to testify. The State asked for leave to appeal this decision, and leave was granted.

 

Held: A judge may not be summoned to testify on a matter relating to his judicial role, but on a matter unrelated to his judicial role, he may be summoned, and his testimony should be given in a way that does not harm his standing and the standing of the judicial system, in accordance with the rules set out in para. 12 of the judgment. The Supreme Court returned the case to the District Court to reconsider the matter in accordance with these rules.

 

Leave to appeal granted. Appeal allowed. 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

LCA 3202/03

State of Israel

v.

1. Haggai Yosef

2. Tali Yosef

3. Dana Yosef

4. Yafit Yosef

5. Mustafa Sarsour

6. Motti Ben-Ezra

 

The Supreme Court sitting as the Court of Civil Appeal

[4 March 2004]

Before Justices J. Türkel, A. Procaccia, E. Hayut

 

Application for leave to appeal the decision of the Jerusalem District Court (Justice Y. Hecht) on 26 March 2003 in Civil Case 735/94. The application was heard as an appeal.

 

Facts: In an action for damages for wrongful arrest and prosecution, the plaintiffs wished to summon as a witness the person who had been the prosecutor in the criminal proceedings. The prosecutor had, in the meanwhile, become a judge. The District Court decided that the judge should be summoned to testify. The State asked for leave to appeal this decision, and leave was granted.

 

Held: A judge may not be summoned to testify on a matter relating to his judicial role, but on a matter unrelated to his judicial role, he may be summoned, and his testimony should be given in a way that does not harm his standing and the standing of the judicial system, in accordance with the rules set out in para. 12 of the judgment. The Supreme Court returned the case to the District Court to reconsider the matter in accordance with these rules.

 

Leave to appeal granted. Appeal allowed.

 

Legislation cited:

Civil Procedure Regulations, 5744-1984, rr. 134(c), 164, 168, 172, 240 et seq.

Criminal Law Ordinance, 1936, s. 131(1)(a).

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 174.

Evidence Ordinance [New Version], 5731-1971, ss. 15, 17, 20.

Road Accident Victims Compensation (Experts) Regulations, 5747-1986, r. 15(b).

Road Accident Victims Compensation Law, 5735-1975, s. 6A(b)(2).

 

Israeli Supreme Court cases cited:

[1]        HCJ 124/58 Attorney-General v. Justice Conducting Preliminary Examination [1959] IsrSC 13 5.

[2]        CrimA 35/72 Dayan v. State of Israel [1972] IsrSC 26(1) 662.

[3]        CrimA 406/78 Bashiri v. State of Israel 1980] IsrSC 34(3) 393.

[4]        CrimA 685/81 Aharoni v. State of Israel 1983] IsrSC 37(1) 673.

[5]        CrimA 364/73 Seidman v. State of Israel [1974] IsrSC 28(2) 620.

[6]        HCJ 732/84 Tzaban v. Minister of Religious Affairs [1986] IsrSC 40(4) 141.

[7]        HCJ 506/89 Be’eri v. Head of Claims Department, Investigations Division, Israel Police National Headquarters [1990] IsrSC 44(1) 604.

[8]        HCJ 6163/92 Eisenberg v. Minister of Building and Housing [1993] IsrSC 47(2) 229; [1992-4] IsrLR 19.

[9]        HCJ 2148/94 Gilbert v. Chairman of Commission of Inquiry for Investigating the Hebron Massacre [1994] IsrSC 48(3) 573.

[10]     LCA 2508/98 Matan Y. Communication & Detection Systems Ltd v. Miltal Communications Ltd [1999] IsrSC 53(3) 26.

[11]     CrimA 334/81 Haginzar v. State of Israel [1982] IsrSC 36(1) 827.

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

[13]     HCJ 1199/92 Lusky v. National Labour Court [1993] IsrSC 47(5) 734.

[14]     HCJ 2874/93 Kamal v. National Labour Court [1994] IsrSC 48(2) 673.

[15]     LCA 600/96 Edri v. Migdal Insurance Co. Ltd (unreported).

[16]     LCA 7265/95 Gladstein v. Barel [1996] IsrSC 50(3) 214.

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

[18]     CrimA 4133/93 State of Israel v. Hir [1996] IsrSC 50(4) 274.

 

Israeli District Court cases cited:

[19]     Mot (Jer) 5915/97 Yitzhak v. Weisglass (unreported).

[20]     CA (Naz) 335/98 Ilboni v. Ilboni (unreported).

 

American cases cited:

[21]     State v. Simpson, 334 S.E. 2d 53 (1985).

[22]     State ex rel. Kaufman v. Zakaib, 535 S.E. 2d 727 (2000).

[23]     Sansone v. Garvey, Schubert & Barer, 71 P. 3d 124 (2003).

[24]     Guardianship of Hortense Clapp Pollard, 764 N.E. 2d 935 (2002).

 

English cases cited:

[25]     Warren v. Warren [1996] 4 All ER 664 (C.A.).

[26]     Buccleuch (Duke) v. Metropolitan Board Of Works (1872) [1861-1873] All ER 654 (H.L.).

 

Jewish law sources cited:

[27]     Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 8, 4; 28, 5.

[28]     Maimonides, Mishneh Torah, Hilechot Sanhedrin (Laws of Courts), 25, 1 and 4.

[29]     Rabbi Yehiel Michel Epstein, Aruch HaShulhan, Hoshen Mishpat, 28, 13.

[30]     Maimonides, Mishneh Torah, Hilechot Edut (Laws of Testimony) 1, 2.

[31]     E. Shochetman, Legal Procedure – In Light of Jewish Law Sources — Procedure, Regulations and Rulings of the Rabbinical Courts in Israel (1988).

 

For the appellant — T. Tzaban, Senior Assistant to Jerusalem District Attorney.

For respondents 1-5 — A. Feldman, M. Sefarad.

For the sixth respondent — A. Rom, A. Hernik.

 

 

JUDGMENT

 

 

Justice J. Türkel

Background and proceedings

1. On 14 July 1991, Mr Israel Djelusitzky, a money changer, was robbed and murdered. An indictment was filed against the first, fifth and sixth respondents (hereafter — the three respondents) in the Tel-Aviv District Court, charging them with an offence of murder. Eventually, because of the conviction of another person in this affair, the three respondents were acquitted. Following the acquittal, the three respondents and respondents 2-4, who are the daughters of the first respondent, filed a claim in torts against the State of Israel in the Jerusalem District Court, on the grounds that the State had been negligent with respect to the three respondents in that it had brought about their arrest and trial on the indictment that was filed against them. During the hearing of the claim in torts, counsel for respondents 1-5 applied to summon as a witness the honourable Justice Y. Amsterdam, who had at the time been an attorney in the Central District Attorney’s Office and had conducted the criminal proceedings against the three respondents. The applicant opposed the application. The District Court (the honourable Justice Y. Hecht) denied the application in its decision on 9 March 2003, because ‘Ms Amsterdam does not have anything to add in oral testimony or in oral examination about what is in the file… and there is no reason to trouble an additional witness in order to quote… from the multitude of documents that were written ten years ago.’ Counsel for respondents 1–5 applied again to the District Court to reconsider the aforesaid decision, and on the same day — 9 March 2003 — the District Court granted the application because it was of the opinion ‘that fairness requires that she [Justice Amsterdam] is summoned to testify.’

On 20 March 2003, the applicant filed an application in the District Court to reconsider its last decision and to order that the testimony of Justice Amsterdam should be given by means of giving written answers in reply to written questions that would be presented to her by the parties, after the District Court approved them. The respondents opposed the application. The District Court dismissed the application in its decision of 26 March 2003 (hereafter — the decision).

The applicant applied for leave to appeal the decision. The respondents replied to the application. In our decision of 3 September 2003 we granted the applicant’s application to allow it to appeal the decision, and we ordered that the application should be heard as an appeal.

Deliberation

The values under consideration

2.     When we wish to decide the question whether it is appropriate to have a judge testify as a witness on the witness stand in a judicial proceeding, we place important values that are all interrelated on the scales, and each of these values tips the scales in its direction: discovering the truth, holding a just trial and the fairness of the judicial process are placed on one scale, and safeguarding the standing of the courts, the independence of the courts and maintaining public confidence in the courts are placed on the other. I said ‘interrelated’ because discovering the truth, the holding of a just trial and the fairness of the judicial process all in themselves, and by their very nature, safeguard the standing of the courts, the independence of the courts and public confidence in the courts. It need not be said that the discovery of the truth, the holding of a just trial and the fairness of the judicial process require the witness to testify and to be cross-examined openly and publicly before the court, mainly for the reason that in this way his credibility and the reliability of his story can be examined. This is well established (see, inter alia, HCJ 124/58 Attorney-General v. Justice Conducting Preliminary Examination [1]; CrimA 35/72 Dayan v. State of Israel [2], at p. 664; CrimA 406/78 Bashiri v. State of Israel [3], at pp. 442-443; CrimA 685/81 Aharoni v. State of Israel [4], at p. 689; A. Harnon, The Laws of Evidence (vol. 1), at pp. 106-109). Notwithstanding, the testimony of a judge and his cross-examination as a witness on the witness stand may lead to contempt for the judge (see the remarks of Justice Berinson in CrimA 364/73 Seidman v. State of Israel [5]), at p. 627, and the remarks of Justice M. Ravid in Mot (Jer) 5915/97 Yitzhak v. Weisglass [19]), which are cited below) and will certainly compromise the standing and independence of the courts and the confidence of the public therein (see, inter alia, HCJ 732/84 Tzaban v. Minister of Religious Affairs [6], at pp. 148-149; HCJ 506/89 Be’eri v. Head of Claims Department, Investigations Division, Israel Police National Headquarters [7], at pp. 610-611; HCJ 6163/92 Eisenberg v. Minister of Building and Housing [8], at pp. 265-266 {69}; HCJ 2148/94 Gilbert v. Chairman of Commission of Inquiry for Investigating the Hebron Massacre [9], at pp. 581-582).

3.     To the best of my knowledge, the question of whether it is appropriate for a judge to testify as a witness on the witness stand has not yet been decided in the case law of the courts in Israel. Below we will consider several cases in the case law of the courts in Israel, England and the United States, in which the question has been raised. We shall also consider Jewish law sources in this regard. On the basis of all these, we will be able to choose the best path to follow.

Israeli experience

4. It is well known that the adversarial method, as practised in common law countries, was adopted in Israel; according to this, the right of a party to cross-examine the witnesses of the other party in the courtroom, before the judge who is trying the case, is an essential element of the judicial proceeding (S. Levin, The Theory of Civil Procedure – Introduction and Basic Principles, at p. 68; Y. Kedmi, On Criminal Procedure (vol. 3), at p. 1111). The legal basis for cross-examination is s. 17 of the Evidence Ordinance [New Version], 5731-1971 (see also s. 174 of the Criminal Procedure Law [Consolidated Version], 5742-1982; rr. 164 and 168 of the Civil Procedure Regulations, 5744-1984). In addition to oral testimony — in examination-in-chief and cross-examination — the law also recognizes written testimony. Thus, it is possible to file the examination-in-chief in an affidavit (s. 15 of the Evidence Ordinance; r. 168 of the Civil Procedure Regulations). This is also the case for expert opinions and medical opinions; if the court ‘sees no danger of a miscarriage of justice, it may accept as evidence, in writing, an expert opinion on a question of science, research, art or professional knowledge… and a physician’s certificate with respect to a person’s state of health…’ (s. 20 of the Evidence Ordinance). Interim petitions are also usually filed in writing and not by way of a motion, which is an oral petition (rr. 240 et seq. of the Civil Procedure Regulations). Similarly, by virtue of case law and practice, the right of cross-examination has been restricted in certain matters, such as in the High Court of Justice and the Labour Court (Levin, The Theory of Civil Procedure – Introduction and Basic Principles, at p. 132). Of the special nature of the Israeli system, it has been said, inter alia:

‘The laws of evidence in Israel largely remain laws in which findings are made on the basis of oral evidence, while the litigant has the right to put the evidence of his opponent to the test in cross-examination. As the late Justice Agranat said in Attorney-General v. Justice Conducting Preliminary Examination [1], at p. 23:

“Cross-examination is regarded as the most effective instrument that has been invented to date for the purpose of enabling a litigant to discover the truth in a trial.”

We have come a long way in the years since the British Mandate ended, and it can no longer be stated that the system of evidence in Israel is entirely an oral system. We accept expert opinions in writing, and we may rely upon affidavits that are filed as evidence, in lieu of examination-in-chief; in other matters, too, we are prepared to rely on written evidence. Notwithstanding, the right in principle to conduct a cross-examination remains unchanged. This is how our legal system differs from the continental legal systems, in which the fate of the whole proceeding is likely to be determined on the basis of written evidence, without there being a right to conduct a cross-examination. From this perspective, we still belong to the family of common law countries, and it appears to me that this is, when viewed as a whole, the correct law…’ (per Vice-President S. Levin in LCA 2508/98 Matan Y. Communication & Detection Systems Ltd v. Miltal Communications Ltd [10], at pp. 32-36. See also the remarks of Justice D. Levin in CrimA 334/81 Haginzar v. State of Israel [11], at p. 832; the remarks of Justice Procaccia in CrimA 5329/98 Dejani v. State of Israel [12], at pp. 280-282; Harnon, The Laws of Evidence, supra, at pp. 106-109; A. Barak, ‘The Legal System in Israel — Tradition and Culture,’ 40 HaPraklit (1991-1993) 197, at pp. 202-208).

Special arrangement

5. An illuminating example of the restriction of the right of cross-examination and the use of the practice of presenting clarification questions in writing instead of oral cross-examination is the arrangement that has been formulated in the Labour Court with regard to an ‘expert medical consultant’ whose medical opinion has been filed as evidence in the court. In this regard it has been said:

‘The practice that developed in the Labour Courts many years ago is to appoint, when necessary, an “expert medical consultant” in order to obtain a medical opinion in the field of his expertise…

In the decision appointing him, the court specifies the documents that will be submitted to the expert for his inspection and the questions that will be put to him. The parties are given an opportunity to address the questions that the court is about to present to the expert, before they are referred to him. A party may object to a question or its phrasing, or even suggest questions of his own that may be put to the expert.

An additional aspect of the practice in the Labour Courts with respect to a medical expert appointed by the court, as developed and enhanced in those courts, is the presentation of “clarification questions” with regard to the expert’s medical opinion.

In the practice that has developed in the Labour Courts, the parties’ clarification questions are submitted to the court, and the court decides whether to allow them to be put to the expert. Such permission is granted whenever the question is relevant and intended to clarify or complete the opinion, and is not a question that is intended to test the degree of the physician’s expertise or the scientific sources for his conclusion’ (per Justice D. Levin in HCJ 1199/92 Lusky v. National Labour Court [13], at pp. 743-744). With regard to the procedure of “clarification questions” for an expert who is appointed by the court under the Civil Procedure Regulations, see r. 134(c) of the Civil Procedure Regulations. With regard to this procedure in claims for compensation for road accident victims, see s. 6A(b)(2) of the Road Accident Victims Compensation Law, 5735-1975, and r. 15(b) of the Road Accident Victims Compensation (Experts) Regulations, 5747-1986).

Also discussed there is the restriction of the right to cross-examine an ‘expert medical consultant’ who is appointed by the Labour Court:

‘Section 11 of the guidelines [that were issued by the President of the National Labour Court]… provide as follows:

“An expert medical consultant shall not be summoned to the court to answer questions relating to his opinion, unless the court so decides for special reasons that shall be recorded.”

Even according to the previous guidelines… the parties did not have an inherent right to cross-examine the medical expert. Admittedly, it was possible to ask the court to have the expert clarify his opinion orally, but the party making the application was required to set out in writing the questions that it wished to put, and the court decided if the expert would answer them in writing or orally.

The logic common to these guidelines, both in their original version and in their most recent version, is that the opinion of the expert who was appointed by the court is not testimony “for” one of the parties, and the expert is not a witness of either party. Naturally we must add to this that s. 26 of the Evidence Ordinance [New Version], which enshrines the right of cross-examination as dictated by the legislature, does not apply to the Labour Courts…

The practice with regard to a medical expert who is appointed by the Labour Court, as described above, contains many safeguards that are intended to protect the rights of the parties, contributes to maintaining the credibility, expertise and objectivity of the expert opinion and, to a large extent, reduces the need to cross-examine him.

We see from the aforesaid that neither of the parties has an “inherent right” to cross-examine the expert, neither according to law nor according to the rules of natural justice…’ (per Justice D. Levin in Lusky v. National Labour Court [13], at pp. 746-747. See also E. Rivlin, Road Accidents — Procedure and Calculation of Compensation (third edition, 2000), at p. 595, footnote 155).

Elsewhere, the following was said on this subject:

‘Expert medical consultants are appointed in the Labour Courts pursuant to the guidelines that are issued by the President of the National Labour Court, which constitute “judicial regulations”… in accordance with the procedural guidelines practiced in the Labour Courts… An expert consultant who is appointed has a special status. It is important to make the following points: an expert consultant is not a witnesses, and his opinion does not constitute testimony “for” one of the parties. The parties do not have an inherent right to cross-examine him thoroughly, and the court does not accede to a request to summon him for such an examination, unless there are special reasons that shall be recorded. Even putting clarification questions in writing to an expert is done through the court and is subject to its scrutiny. In theory and in practice, an expert medical consultant is the trustee of the court, which when ruling on a medical question attributes very great importance to his opinion. It follows that an appointment of an expert medical consultant gives the physician who is appointed a public role of a quasi-judicial nature…’ (emphases not in the original) (per Justice Mazza in HCJ 2874/93 Kamal v. National Labour Court [14], at p. 680. Cf. my remarks concerning a medical expert who is appointed in compensation claims of road accident victims, who is a ‘kind of long arm of the court… once the court has delegated its power to him’ in LCA 600/96 Edri v. Migdal Insurance Co. Ltd [15], at para. 3, and in LCA 7265/95 Gladstein v. Barel [16], at p. 218).

6.     The question whether it is appropriate to have a judge testify as a witness on the witness stand has arisen only in a few cases, in most of which the judge was summoned to testify about something related to his judicial position. In one case, an appellant was convicted in the Tel-Aviv-Jaffa Magistrates Court of an offence of defamation of a judge when carrying out his duties, under s. 131(1)(a) of the Criminal Law Ordinance, 1936. The appellant appealed against the judgment of the Magistrates Court to the Tel-Aviv-Jaffa District Court, and after the judgment of the District Court was given, he applied for leave to appeal the judgment, and this court granted his application. In his appeal, counsel for the Appellant challenged the decision of the Magistrates Court, which dismissed his application to summon for testimony the judge whom he was convicted of defaming. He argued that ‘he recognizes the fact that, according to case law, a District Court judge cannot be compelled to come and testify about events that occurred in another trial. But, in his opinion, he should at least have been allowed to summon the judge, and it would have been her choice whether to accept or refuse the summons.’ This argument was rejected by this court, while emphasizing the considerations of wasting the time of the judge who is summoned to testify, and the lack of respect for the court resulting from the cross-examination of a judge:

‘This argument has no basis. It is an immutable rule that a judge cannot be compelled… to testify about a matter that he handled in his capacity as a judge, nor should he be summoned to testify about this… the reason for this is that the judge’s time should not be wasted… on such peripheral matters, nor should he be faced with the choice of accepting or not accepting such a summons. For if he chooses to testify and is cross-examined, this is likely to lead to a lack of respect for the court — something that cannot be permitted’ (per Justice Berinson in Seidman v. State of Israel [5], at p. 627; emphasis not in the original).

This rule was also adopted in another case where an applicant wished to have the vice-president of the Jerusalem District Court testify about events that took place during a hearing before him, which, according to the applicant, were not included in the court record of the hearing. The Jerusalem District Court (the honourable Justice M. Ravid) dismissed the application, in a detailed and well-reasoned decision, saying that it was ‘irrelevant testimony, since nothing in this testimony of the judge… assuming it would be given, could make a contribution from which any conclusion could be reached…’ (Yitzhak v. Weisglass [19], at para. 32). The court added remarks concerning the various, even conflicting, considerations that are considered in this matter:

‘Even if I am mistaken in my conclusion… it still appears to me that there are no grounds for summoning the judge… to testify. Society has an interest that trials are conducted properly and that the truth is revealed… on the other hand, there are also cases where the law prefers a conflicting interest, whether absolutely or relatively, and this prevents the revelation of the truth…

The accepted approach in Israel is that a judge does not testify on matters relating to his role as a judge…

… when a judge is required to testify, not only is doubt cast upon the court record that he made, but it also has implications as to his credibility as a judge. A cross-examination of a judge is likely to harm his standing, on the one hand, and, on the other hand, there is a real concern that precisely because of the respect given to the judge, there will be attorneys who will be afraid to cross-examine the judge, in order not to harm his standing, and so they will refrain from making use of this essential instrument for discovering the truth… while the first consideration is general and systemic, and may harm the judiciary as a whole, the second consideration mainly concerns the individual, insofar as it is likely to harm a party in whose trial the judge testifies, but here too the judiciary is likely to be harmed.

Great care should be taken when summoning judges to testify, so that the judiciary as a whole is not harmed by this, and so that judges are not harmed as individuals. We must prevent the collapse of the existing safety measures and allow only very few exceptions, so that a judge will give testimony only in rare and extraordinary cases… there may be exceptional cases where there is no alternative to summoning the judge to testify, and that is where an interest of a party in a trial is likely to be seriously harmed if the judge does not come to give testimony in his trial’ (per Justice Ravid in Yitzhak v. Weisglass [19], at paras. 34, 36, 37, 42).

The question whether it is appropriate for a judge to testify on the witness stand in a matter that is not related to his judicial role was considered, to the best of our knowledge, in one case only, where the parties agreed that the testimony of a judge should be given in an affidavit, without him testifying orally. The Nazareth District Court described the arrangement as follows: ‘Here the involvement of the judge… in the case comes into the picture. The judge… is a friend of the respondent’s family and was asked by her to help her in evicting the appellant from the apartment. The judge submitted… an affidavit… and answered questions… about his role in the negotiations with the appellant’s brother-in-law… with the consent of the parties he did not testify at the trial’ (per Justice N. Maman in CA (Naz) 335/98 Ilboni v. Ilboni [20], at para. 17).

A brief summary of the rules that have apparently been formulated in this matter — including the distinction between events related to the judge’s judicial role and events that are not related thereto — is set out in Justice Kedmi’s book:

‘The case law is that a judge is not summoned to testify… — and the prevailing approach today refers to every judge — on a matter that he handled within the framework of his activity as a judge. Apart from this restriction, a judge is no different from any other person, although it is desirable — and even extremely desirable — to refrain from calling a judge to the witness stand, if only because of the anticipated damage to his standing and image as a result thereof’ (Y. Kedmi, On Evidence (vol. 1, 2004), at p. 476. See also Harnon, Laws of Evidence, at p. 88; in his opinion, ‘it is not desirable for a judge to be called as a witness.’ As to the possibility of a judge testifying in writing on matters concerning his judicial role, see: CrimA 2286/91 State of Israel v. Eiloz [17], at pp. 307-308; CrimA 4133/93 State of Israel v. Hir [18], at p. 278).

7.     It can be seen from the aforesaid that in Israeli experience, a judge should not be summoned to testify as a witness on the witness stand with regard to a matter that is related to his judicial role. The question whether he may be summoned to testify on a matter that is not related to his judicial role — whether it took place before he became a judge or whether it took place thereafter — has apparently not been the subject of a judicial determination in the 55 years of the State’s history. Is this because there were no cases of this kind, in which there was a need for the testimony of a judge? Or perhaps it is because the need was satisfied in a different way — by an affidavit or a letter — as occurred in the aforementioned Ilboni v. Ilboni [20]? Or perhaps it is because it was clear and obvious to the interested party that this is one of those things ‘that simply aren’t done’? I should point out in this regard that during the 36 years in which I have served as a judge in Israel, at all levels of the legal system, and in all the positions that I have held, I have never been asked to summon a judge to testify on the witness stand, nor have I ever heard that such an application was made in any other court. It need not be said that these remarks of mine are not, of course, ‘judicial knowledge’ or testimony…

English and American experience

8.     The accepted approach in England is that a judge should not be called to testify as a witness on the witness stand with regard to a matter related to his judicial role, because of a fear of harm to the standing of the judge who is undergoing cross-examination, and because of a desire to protect the independence of the judicial system (Warren v. Warren [25]; Buccleuch (Duke) v. Metropolitan Board of Works [26]). Therefore it has been held that it is possible to call upon a judge to testify as a witness on the witness stand only with respect to events for which there is no other course that could replace the testimony of the judge as evidence within the framework of the judicial proceeding (J.H. Buzzard, R. May, M.N. Howard, Phipson On Evidence (thirteenth edition, 1992), at p. 279; R. Cross, C. Tapper, On Evidence (ninth edition, 1999), at pp. 492-493).

9.     The accepted approach in the United States is that it is possible to call upon a judge to testify as a witness on the witness stand on a subject that is related to his judicial role, as long as he is not being asked to testify at a trial over which he is presiding (‘Report of the Special Committee on the Propriety of Judges Appearing as Witnesses,’ 36 A.B.A.J. (1950) 630). Notwithstanding, even in cases where the courts have allowed a judge to testify as a witness on the witness stand with regard to something related to his judicial role, they first examined the question whether there was a different means that could replace the testimony of the judge as evidence within the framework of the judicial proceeding (State v. Simpson [21]; State ex rel. Kaufman v. Zakaib [22]). It should be noted that in those cases where the courts in the United States have considered the question whether a judge may be summoned to testify as a witness on the witness stand, considerations of public procedure and the standing of the judge were also considered (Sansone v. Garvey, Schubert & Barer [23]). In one case, the Court of Appeals of the State of Massachusetts considered whether to allow the cross-examination of a judge on a report that she had written within the framework of her capacity as a guardian, before her appointment to the bench (Guardianship of Hortense Clapp Pollard (2002) [24]). In that case, the court allowed the judge to be examined, saying that: ‘We find no authority to support the assertion that a Probate Court judge who served as GAL [Guardian ad litem] prior to her nomination to the bench is automatically disqualified from being cross-examined upon her report in a guardianship proceeding prepared prior to her appointment’ (ibid. [24], at p. 939; but it is possible that this position was influenced by the special nature of the proceeding and the special circumstances of the case).

The experience of Jewish law

10. Jewish law sources also discuss safeguarding the dignity of the judge and a ‘community leader’ — i.e., a person whose public standing is important — and safeguarding the dignity of the public, and from this we can find an answer also to the case before us. It was said on this subject:

‘A judge shall not behave towards the public with arrogance and vulgarity, but with humility and fear. And any community leader who inflicts excessive fear upon the public that is not for the sake of Heaven will never have a scholarly son. It is also forbidden to treat them disrespectfully, even though they are ignorant … and he must endure the trouble and burden of the public. The community is obliged to treat the judge with respect, and they shall fear him, and he should also not degrade himself or act disrespectfully in their presence, for once a person has been appointed as a community leader, he may not perform labour before three people, so that he is not degraded before them, and he certainly may not eat and drink in public’ (Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 8, 4 [27]). See also: Maimonides, Mishneh Torah, Hilechot Sanhedrin (Laws of Courts), 25, 1; 25, 4 [28]).

It follows that any act of the judge that injures his dignity or that may diminish his dignity is considered inappropriate. This concept can also be seen from the exceptions to the rule that witnesses must testify orally (Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 28, 11 [27]) at the place where the trial is taking place, i.e., in the court (Rabbi Yehiel Michel Epstein, Aruch HaShulhan, Hoshen Mishpat, 28, 13 [29]). The first exception is that the testimony of a scholar should be heard out of court, and the second exception is that the testimony of a scholar should not be oral, but in writing. According to the first exception, a scholar is exempt from appearing before the court, and his testimony may be given at his home, because of his dignity. In this respect, Jewish law sources contain an illuminating distinction between the subjects of the hearing:

‘If a witness is very learned and the court is less learned than him, since it is dishonourable for him to go before them, the positive duty to honour the Torah takes precedence, and he should not do so. When is this so? In financial testimony; but for testimony concerning religious prohibitions and for testimony in capital cases or cases involving corporal punishment, he should go and testify, for it is stated: “There is no wisdom or understanding… before the Lord” (Proverbs 21, 30). Wherever there is a desecration of God’s name, one does not show respect to a rabbi’ (Maimonides, Mishneh Torah, Hilechot Edut (Laws of Testimony) 1, 2 [30]).

The testimony of a scholar at his home shall be taken by three people, who shall be appointed for this purpose by the court (Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 28, 5 [27]. Cf. r. 172 of the Civil Procedure Regulations (‘Testimony by the Head of a Religious Community’)). Similarly, it is possible for a woman to testify at her home, out of respect for her (A. Carlin, ‘Studies in the Laws of Evidence in Light of Jewish Law,’ 11 HaPraklit (1955) 49, at p. 159. Cf. E. Shochetman, Legal Procedure – In Light of Jewish Law Sources — Procedure, Regulations and Rulings of the Rabbinical Courts in Israel (1988), at p. 282, footnote 86). According to the second exception, testimony by a scholar may be given in writing. ‘The reason for this is that we rely on the opinion of Rabbeinu Tam (Rabbi Yaakov ben Meir), who allows witnesses to send their testimony in writing and therefore — in a special case where testimony is required of a scholar — we rely on his opinion in order to refrain from troubling him’ (Shochetman, ibid., at p. 291, footnote 137; Rabbi Yosef Karo, Shulhan Aruch, Hoshen Mishpat, 28, 5 [27]). We can apply this, by analogy, also to the case of religious and civil judges.

Summary and conclusions

11. As we have seen, Israeli experience shows that it is not appropriate to summon a judge to testify as a witness on the witness stand on a matter related to his judicial role. Nevertheless, the question whether to summon a judge to testify on the witness stand on a matter that is not related to his judicial role — whether it took place before he became a judge or thereafter — has not yet been the subject of a judicial ruling. We have further seen that the accepted approach in England is that a judge should not be summoned to testify as a witness on the witness stand on a matter related to his judicial role, because of a fear of compromising the standing of a judge who undergoes cross-examination, and out of a desire to preserve the independence of the judicial system. On the other hand, it can be said that the accepted approach in the United States is that a judge may be summoned to testify as a witness on the witness stand on a matter related to his judicial role, as long as he is not being asked to testify in a trial at which he is himself presiding. In Jewish law also we have found that any action on the part of a religious court judge that injures his dignity, or that is likely to detract from his dignity, is considered inappropriate. We also learned of this idea from the exceptions regarding the testimony of a scholar, according to which testimony may be given at his home and it may even be given in writing.

12. The values of discovering the truth, conducting a just trial and the fairness of the judicial proceeding, on the one hand, and the values of the protecting the standing of the courts, their independence and public confidence therein are fundamental to the existence of the State of Israel as a Jewish and democratic state. Finding the proper balance in a situation like the one before us is neither simple nor easy; we must create a possibility of obtaining the required information, but we must take great care that harm does not ensue. Therefore it was not without hesitation that I have reached the conclusion that the solution to the question brought before us ought best be in the form of making rules, similar to the aforementioned rules that were made in the Labour Courts for ‘expert medical consultants.’ These rules should be as follows:

(a) A judge shall not be cross-examined as a witness on the witness stand with respect to a matter related to his judicial role.

(b) The court that is hearing a proceeding in which the testimony of a judge is required on a matter unrelated to his judicial role shall decide, on the basis of the material before it and in accordance with the arguments of the parties, whether to summon the judge to testify.

(c) When it has been decided to summon the judge to testify, the party who wishes him to testify shall submit to the court and to the other party the questions that he wishes to put to the judge, and the court shall decide which questions shall be put.

(d) The judge shall reply to the questions in writing.

(e) After the replies have been given, the parties shall be allowed to put clarification questions to the judge in writing. The questions shall be submitted to the court and to the other party, and the court shall decide which questions shall be put to the judge.

(f) If, after receiving the replies, the court finds, upon an application of a party, that it is necessary to cross-examine the judge, the court shall summon him for examination. The court shall decide how the examination should take place: in the courtroom in a closed hearing, in the judge’s chambers or in another manner.

(g) Before the court decides on the question of cross-examination, it shall give notice to the Attorney-General, who shall give notice to the Court of his position in this matter.

Outcome

13. I therefore propose that the decision of the District Court is overturned, and that the District Court shall act in accordance with the rules set out in para. 12 above. In the circumstances of the case, there is no order for costs.

 

 

Justice A. Procaccia

I agree.

 

 

            Justice E. Hayut

I agree.

 

Appeal allowed.

11 Adar 5764.

4 March 2004.

 

Milstein v. Chief Military Prosecutor

Case/docket number: 
LCrimA 4142/04
Date Decided: 
Thursday, December 14, 2006
Decision Type: 
Appellate
Abstract: 

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

 

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial held that the appellant’s refusal to testify in his trial constituted ‘something extra,’ thus allowing them to convict him. The appellant applied for and was granted leave to appeal to the Supreme Court on the question whether the refusal of a defendant to testify, in accordance with his right to remain silent, could constitute ‘something extra,’ thereby allowing the court to convict him on the basis of his confession.

 

Held: (Minority opinion — Justice Levy) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for a confession that he made during his interrogation, but where a video recording was made of the interrogation, so that the court is given the possibility of watching the interrogation and the defendant’s confession, the silence of the defendant in his trial may constitute ‘something extra.’

 

(Majority opinion — Justice Arbel and President Emeritus Barak) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for the confession that he made during his interrogation. There are, however, exceptions to the rule. These should not be limited solely to cases where a video recording of the confession was made. The court has discretion to regard the silence of a defendant in his trial as ‘something extra’ for his confession during his interrogation. This discretion should be exercised sparingly. It should only be used when three conditions are satisfied: first, the confession is logical, consistent, clear and detailed. Second, the court can rule out the possibility that the defendant, because of some internal pressure, confessed to something that he did not do. Third, the court should be satisfied that the defendant’s silence in the trial is not the result of some internal or external pressure, nor is it the result of some innocent motive.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
dissent
Full text of the opinion: 

LCrimA 4142/04

Sergeant (res.) Itai Milstein

v.

1.     Chief Military Prosecutor

2.     Attorney-General

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[14 December 2006]

Before President (Emeritus) A. Barak and Justices E.E. Levy, E. Arbel

 

Appeal by leave of the judgment of the Appeals Court Martial of 4 April 2004 in Appeals case no. 230/02.

 

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial held that the appellant’s refusal to testify in his trial constituted ‘something extra,’ thus allowing them to convict him. The appellant applied for and was granted leave to appeal to the Supreme Court on the question whether the refusal of a defendant to testify, in accordance with his right to remain silent, could constitute ‘something extra,’ thereby allowing the court to convict him on the basis of his confession.

 

Held: (Minority opinion — Justice Levy) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for a confession that he made during his interrogation, but where a video recording was made of the interrogation, so that the court is given the possibility of watching the interrogation and the defendant’s confession, the silence of the defendant in his trial may constitute ‘something extra.’

(Majority opinion — Justice Arbel and President Emeritus Barak) As a rule, the silence of a defendant in his trial should not constitute ‘something extra’ for the confession that he made during his interrogation. There are, however, exceptions to the rule. These should not be limited solely to cases where a video recording of the confession was made. The court has discretion to regard the silence of a defendant in his trial as ‘something extra’ for his confession during his interrogation. This discretion should be exercised sparingly. It should only be used when three conditions are satisfied: first, the confession is logical, consistent, clear and detailed. Second, the court can rule out the possibility that the defendant, because of some internal pressure, confessed to something that he did not do. Third, the court should be satisfied that the defendant’s silence in the trial is not the result of some internal or external pressure, nor is it the result of some innocent motive.

 

Appeal allowed.

 

Legislation cited:

Basic Law: Human Dignity and Liberty.

Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, s. 7.

Criminal Procedure Law [Consolidated Version], 5742-1982, ss. 154, 161, 162.

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

Evidence Ordinance [New Version], 5731-1971, ss. 10A, 10A(d), 12, 12(a), 53, 54A(a).

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

Penal Law, 5737-1977, s. 34V(a).

 

Israeli Supreme Court cases cited:

[1]        CrimA 4675/97 Rozov v. State of Israel [1999] IsrSC 53(4) 337.

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

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

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

[5]        CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006] (2) TakSC 1093; [2006] (1) IsrLR 320.

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

[7]        HCJ 11339/05 State of Israel v. Beer-Sheba District Court [2006] (4) TakSC 138; [2006] (2) IsrLR 112.

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

[9]        CrimApp 2169/92 Suissa v. State of Israel [1992] IsrSC 46(3) 338.

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

[11]     CrimA 1497/92 State of Israel v. Tzubari [1993] IsrSC 47(4) 177.

[12]     CrimA 196/85 Silberberg v. State of Israel [1990] IsrSC 44(4) 485.

[13]     CrimA 139/52 Attorney-General v. Keinan [1953] IsrSC 7(1) 619.

[14]     CrimA 112/52 Gabuv v. Attorney-General [1953] IsrSC 7(1) 251.

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

[16]     CrimA 7293/97 Jafar v. State of Israel [1998] IsrSC 52(5) 460.

[17]     CrimA 1888/02 State of Israel v. McDaid [2002] IsrSC 56(5) 221.

[18]     CrimA 556/80 Ali v. State of Israel [1983] IsrSC 37(3) 169.

[19]     RT 1966/98 Harari v. State of Israel (unreported decision of 5 April 1998).

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

[21]     CrimA 48/54 Irshid v. Attorney-General [1954] IsrSC 8(2) 690.

[22]     CrimA 6289/94 Janshvili v. State of Israel [1998] IsrSC 52(2) 157.

[23]     CrimA 715/78 Levy v. State of Israel [1979] IsrSC 33(3) 228.

[24]     CrimA 124/87 Nafso v. Chief Military Prosecutor [1987] IsrSC 41(2) 631; IsrSJ 7 263.

[25]     CrimA 3967/91 Mazon v. State of Israel [1992] IsrSC 46(3) 168.

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

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

[28]     CrimA 4855/02 State of Israel v. Borovitz [2005] IsrSC 59(6) 776.

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

[30]     CrimA 6679/04 Steckler v. State of Israel [2006] (2) TakSC 1655.

[31]     CrimA 3/49 Andelersky v. Attorney-General [1949] IsrSC 2 589.

[32]     CrimA 290/59 A v. Attorney-General [1960] IsrSC 14(2) 1489.

[33]     CrimA 543/79 Nagar v. State of Israel [1981] IsrSC 35(1) 113.

[34]     CrimFH 3391/95 Ben-Ari v. State of Israel [1997] IsrSC 51(2) 377.

[35]     CrimA 178/65 Usha v. Attorney-General [1965] IsrSC 19(3) 154.

[36]     CrimA 428/72 Ben-Lulu v. State of Israel [1974] IsrSC 28(1) 267.

[37]     CrimA 4769/92 Nijam v. State of Israel [1994] (3) TakSC 2183.

[38]     CrimA 7595/03 A v. State of Israel [2005] IsrSC 59(1) 1.

[39]     CrimA 5225/03 Habbas v. State of Israel [2004] IsrSC 58(2) 25.

[40]     CrimA 3338/99 Pakovitz v. State of Israel (unreported).

[41]     CrimA 387/83 State of Israel v. Yehudai [1985] IsrSC 39(4) 197.

[42]     CrimA 2949/99 Cohen v. State of Israel [2002] IsrSC 56(1) 636.

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

[44]     HCJFH 4601/95 Serrousi v. National Labour Court [1998] IsrSC 52(4) 817.

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

[46]     CrimA 721/80 Turgeman v. State of Israel [1981] IsrSC 35(2) 466.

[47]     CrimA 10596/03 Bashirov v. State of Israel (not yet reported decision of 4 June 2006).

[48]     CrimA 5386/05 Alhorti v. State of Israel (not yet reported decision of 18 May 2006).

[49]     CrimA 323/84 Shriki v. State of Israel [1985] IsrSC 39(3) 505.

[50]     CrimA 735/80 Cohen v. State of Israel [1981] IsrSC 35(3) 94.

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

[52]     CrimA 190/82 Marcus v. State of Israel [1983] IsrSC 37(1) 225.

[53]     CrimA 1242/97 Greenberg v. State of Israel [1998] (1) TakSC 81.

[54]     CrimA 238/89 Askapur v. State of Israel [1989] IsrSC 43(4) 404.

[55]     CrimA 378/74 Messer v. State of Israel [1976] IsrSC 30(1) 687.

[56]     CrimA 85/80 Katashvili v. State of Israel [1980] IsrSC 34(4) 57.

[57]     CrimA 389/73 Ben-Lulu v. State of Israel [1974] IsrSC 28(1) 489.

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

[59]     CrimA 5544/91 Moyal v. State of Israel [1995] (1) TakSC 1343.

[60]     CrimA 241/87 Cohen v. State of Israel [1988] IsrSC 42(1) 743.

[61]     CrimA 6936/94 Awad v. State of Israel [1996] IsrSC 50(4) 842.

[62]     CrimA 312/73 Matzrawa v. State of Israel [1974] IsrSC 28(2) 805.

[63]     CrimA 399/72 Menahem v. State of Israel (unreported).

[64]     CrimA 450/82 Tripi v. State of Israel [1983] IsrSC 37(2) 589.

[65]     CrimA 282/75 Karki v. State of Israel (unreported).

[66]     CrimA 34/78 Algul v. State of Israel (unreported).

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

[68]     CrimA 146/81 Al-Sena v. State of Israel [1982] IsrSC 36(2) 500.

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

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

[71]     CrimA 788/77 Bader v. State of Israel [1980] IsrSC 34(2) 818.

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

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

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

 

Appeals Court Martial cases cited:

[75]     A 41/01 Chief Military Prosecutor v. Levy (unreported decision of 6 November 2001).

[76]     A 85/80 Cohen v. Chief Military Prosecutor (unreported).

[77]     A 190/01 Lahav v. Chief Military Prosecutor (unreported decision of 1 December 2002).

[78]     A 238/02 Britchock v. Chief Military Prosecutor (unreported decision of 13 January 2003).

[79]     A 59/03 Chief Military Prosecutor v. Schulman (unreported decision of 9 December 2003).

[80]     AA 28/03 Chief Military Prosecutor v. Al-Dema (unreported decision of 15 July 2003).

 

American cases cited:

[81]     Griffin v. California, 380 U.S. 609 (1965).

[82]     Opper v. United States, 348 U.S. 84 (1954).

 

Canadian cases cited:

[83]     R. v. Noble [1997] 1. S.C.R. 874.

 

English cases cited:

[84]     R. v. Cowan [1996] QB 373; [1995] 4 All ER 939.

 

For the applicant — O. Bassok.

For the first respondent — Y. Kostelits, L. Liberman.

For the attorney-general — M. Karshen.

 

 

JUDGMENT

 

 

Justice E.E. Levy

Introduction

1.    Can the silence of a defendant who is called to testify in his trial satisfy the requirement of ‘something extra’ for confessions that he made during his interrogation, in the course of which he took responsibility for the offences that were attributed to him? That is the question before us in this appeal.

On 24 Adar II 5765 (4 April 2005) leave was granted to appeal on this issue. Later, because of the importance of the issue, the attorney-general was joined as an additional respondent in the appeal. The time has come to make a decision.

The main facts

2.    In an indictment that was filed against the appellant, Corporal Itai Milstein, in the Central District Court Martial, it was alleged that during his military service he made use of a dangerous drug of the cannabis type (‘grass’), an offence under s. 7(a) and 7(c) of the Dangerous Drugs Ordinance [New Version], 5733-1973.

During the trial the appellant denied the offences attributed to him, but when he was asked to testify, he exercised his right to remain silent. Consequently the military prosecutor applied to submit as evidence two confessions that he made during his interrogation (prosecution exhibits 2 and 3), in which he confessed to several incidents in which he used cannabis-type drugs.

 In his confession (prosecution exhibit 2), the appellant said that from the age of 16 he has been in the habit of using drugs. The appellant also admitted that after he was conscripted into regular military service he once made use of a drug (‘grass’) together with a friend. The appellant even described his feelings after smoking the drug (‘I felt “high,” I was thirsty’) and also his feeling of regret that he felt as a result of this act (‘after that use, I said to myself: Why did I do that? I am in the army, in a combat unit. I hope to become a tank commander’). Moreover the appellant said that he used the drug after he had not left the base on leave for 21 days, and he went on to give various details about the method of smoking and the appearance and smell of the drug.

After it examined this confession, the District Court Martial came to the conclusion that it should be given considerable weight, in view of the many indications of truth that it revealed. In its words:

‘A reading of the defendant’s confession (prosecution exhibit 2) shows that we are dealing with a well-ordered confession from a chronological point of view, and one that is intelligible, complete and logical. The defendant includes his descriptions of events from the time when he was 16 years old until the time of the interrogation… Moreover, his confession is very detailed; it gives a detailed description of the manner in which he used drugs, including an explanation of the various methods of using cannabis. The defendant gives details of his feelings after he used the drug, the reasons that led him to use the drug during his military service, and finally he expressed regret at the deed… The concern that the confession may be false is also reduced because the defendant chose in his confession not to mention the names of the persons who supplied him the drugs or the name of the person with whom he made use of the drug during his military service. The defendant also knew how to say, in his defence, that he never bought drugs himself or had possession of drugs at home… From this we can see that the defendant’s replies in his interrogation were well thought out and it is clear that they were not given lightly or because of a hidden ulterior motive or pressure’ (p. 4 of the verdict).

The court martial discussed how the concern that a confession may be false is also not significant in this case because of an additional reason, and that is a memorandum (prosecution exhibit 5) that was made by the interrogator, in which it says that ‘the interrogation took place in a good atmosphere with full cooperation on the part of the suspect.’ The court martial also emphasized that the appellant did not make any claim or complaint in his interrogation and that ‘he did not act in an unusual manner during his interrogation, even though during the interrogation he shed a tear or two’ (p. 4 of the verdict).

Later the court martial turned to consider whether there was ‘something extra’ that might provide the support required for this confession. It was held that the appellant’s silence in the trial could satisfy this requirement, since he did not take the trouble to give any reason for his refusal to testify, and not even the smallest piece of evidence was brought before the court martial to indicate that the confessions were made under any pressure that he experienced. Therefore it was held that ‘It was to be expected that a defendant who wishes to deny his confession will take proper steps to persuade the court martial of the truth of his later story’ (ibid.), something that the appellant did not do. Later, in view of his conviction, the court martial sentenced the appellant to 20 days actual imprisonment and a two month suspended sentence.

3.    The appellant, who was not reconciled to his conviction, brought his case before the Appeals Court Martial, and he claimed that the support required for his confessions in the interrogation should not be inferred from his silence. With regard to this, counsel for the appellant raised a broader argument. According to him, the very possibility of reaching incriminating inferences from the silence of a defendant is likely to undermine the presumption of innocence and the right of defendants to remain silent, and it may also impose on them the burden of proving their innocence.

The Appeals Court Martial rejected these arguments. It held that according to what was stated in s. 162 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereafter: ‘the Criminal Procedure Law’), if a defendant refrains from testifying in his defence, this may serve as support for the prosecution’s evidence and even serve as corroboration for it. Therefore, a fortiori it was held that there was nothing to prevent the silence of the defendant also constituting ‘something extra’ for his confession in the interrogation. Moreover, the Appeals Court Martial held that a defendant who chooses to remain silent during his trial expresses consent to the charges brought against him by his conduct, and therefore there is nothing wrong in the possibility of attributing to this choice an incriminating probative significance. Finally it was held that drawing incriminating inferences from the silence of a defendant in a criminal trial does not derogate from the right of silence that the law gives him, nor does it impose upon him the burden of proving his innocence, since this burden remains the duty of the prosecution authorities, who are required to prove the guilt of the defendant beyond all reasonable doubt.

The Appeals Court Martial relied in its judgment on a series of rulings it had made in the past, in which it was held that the silence of a defendant may serve, in appropriate circumstances, as ‘something extra’ for a confession that was made out of court. In one of those rulings (A 41/01 Chief Military Prosecutor v. Levy [75], which was cited at length in the judgment of the Appeals Court Martial, the following was said:

‘The concern that there may be an “internal pressure” that leads a defendant to refrain from testifying in the court is not consistent with his pleading not guilty to the charges, since the significance of pleading not guilty is, in practice, that the defendant retracts his confession that he made out of court.

It may be imagined that someone who “commits suicide by his confession” will continue with his “suicidal” approach and also plead guilty to an offence that he did not commit. And if the defendant decides to change his policy and defend himself against the charge brought against him, there is, as a rule, no reason why he should not take his place on the witness stand and tell his story…

If it really was a case of “internal pressure” arising from the inner world of the defendant or from other external causes, it is hard to believe that the defendant would have been able to retract his confession in the interrogation and deny the charges in court’ (ibid. [75], at p. 21 of the judgment).

For other decisions in the same vein, which testify to the strong hold that this ruling has in the courts martial, see also A 85/80 Cohen v. Chief Military Prosecutor [76]; A 190/01 Lahav v. Chief Military Prosecutor [77]; A 238/02 Britchock v. Chief Military Prosecutor [78]; A 59/03 Chief Military Prosecutor v. Schulman [79]; AA 28/03 Chief Military Prosecutor v. Al-Dema [80].

For the sake of completeness I will add that the appellant’s appeal against his sentence was allowed, and it was held that he would serve the sentence that was handed down to him in the form of military labour and not behind bars.

The arguments of the parties

4.    The parties set out at length their positions on the question under discussion. They attached to their pleadings many appendices and references to Israeli case law and foreign case law, learned articles and provisions of statute. The following, in a nutshell, is a summary of the arguments.

Learned counsel for the appellant, Adv. Or Bassok, is of the opinion that the additional probative requirement of ‘something extra’ for a defendant’s confession — as opposed to the additional requirement of ‘support’ — should be external and separate from the confession, and therefore the silence of a defendant in his trial cannot satisfy this requirement. He argued that the defendant’s silence at the trial, which took place after he confessed during the interrogation that he committed the offences attributed to him, does not necessarily indicate that he was involved in those offences, but it may derive from a series of other reasons, which do not indicate his guilt. For all these reasons learned counsel for the defence expressed his opinion that the assumption that a person who is innocent will defend himself in a positive manner against the charges levelled at him by giving testimony in court is a speculative and unfounded assumption. Moreover he argued that the rulings made by the courts martial are based on an erroneous assumption that only defendants who are actually guilty exercise their right to remain silent, whereas innocent defendants will not hesitate to make a positive statement of their innocence during the trial.

He also emphasized that the provisions of s. 162 of the Criminal Procedure Law, which state that if a defendant refrains from giving testimony, this may serve as ‘support’ or ‘corroboration’ for the prosecution evidence, do not address the additional requirement of ‘something extra’ at all. Consequently, according to the outlook of learned counsel for the defence, it is not possible to extend s. 162 by means of interpretation, since had the legislature intended to include ‘something extra,’ it would have said so expressly. He also argues that the outlook that regards ‘support’ as a stricter probative requirement than ‘something extra’ is erroneous, since the difference between ‘support’ and ‘something extra’ is a qualitative difference and not a quantitative one. On the basis of all this, counsel for the appellant is of the opinion that the conclusion reached by the Appeals Court Martial, according to which the refusal of a defendant to testify may serve as ‘something extra’ for his confession, is an erroneous conclusion, both because it negates the difference between ‘support’ and ‘something extra’ and makes them into one, and also because it undermines the purpose for which the courts require a confession of a defendant to be supplemented by ‘something extra.’ Such an interpretation, so counsel for the defence believes, is also required by the Basic Laws and by the desire to protect the basic rights of defendants in a criminal trial.

An additional line of argument presented by counsel for the appellant concerns the alleged undermining of the presumption of innocence and the right to silence of defendants in criminal proceedings caused by the ruling which is the subject of this appeal. He argues that a finding that a refusal of a defendant to testify may serve as evidence against him undermines the presumption of innocence and the rule that the burden of proof rests with the prosecution authorities, since they are no longer required to discharge the burden of proving guilt independently, and from now they can also rely on the defendant for this. Such a situation, in the opinion of counsel for the defence, is also likely to make the right to remain silent meaningless, since the very threat of the possibility of making use of silence as incriminating evidence will compel the defendant to waive this right and to testify even when he does not wish to do so.

5.    In the opinion of the attorney-general — which was submitted in consultation with the chief military prosecutor — the following position was presented: the provisions of s. 162 of the Criminal Procedure Law, which make it possible to infer from the defendant’s silence ‘support’ or ‘corroboration’ for the weight of the prosecution’s evidence, can serve as a legal source for regarding this silence also as ‘something extra’ for a confession that the defendant made during his interrogation. The respondents also think that the possibility of regarding the defendant’s silence as ‘something extra’ for his confessions does not undermine either the presumption of innocence or the right to remain silent, since it does not compel the defendant to abandon the right to remain silent and testify in his trial.

Notwithstanding, the respondents did not hide their opinion that the possibility of regarding silence as ‘something extra’ for a confession may give rise to a difficulty because of the concern of false confessions, and in their arguments they even expressly admitted that ‘there may be cases in which a defendant, who took responsibility in a police interrogation for carrying out an offence that he did not commit, will deny the charges but choose not to testify in his own defence’ (para. 44 of the attorney-general’s arguments). In view of this recognition, the attorney-general also issued a guideline to the prosecution authorities to act with caution before filing indictments that are based solely on the confession of a suspect in an interrogation. This guideline, which was attached to the respondent’s arguments, says the following:

‘a.           As a rule, indictments should not be filed on the basis of out of court confessions if the evidence collected during the investigation does not contain “something extra” to strengthen those confessions. In exceptional cases it will be possible to file an indictment in such circumstances, but only with the approval of the state attorney or the chief military attorney as applicable.

b.            In so far as the question will arise in the trial, because the ‘something extra’ that was contained in the investigation material was undermined during the trial, as a rule the prosecution should not request the court to regard the refusal of the defendant to testify as “something extra,” except in special cases, in which the confession itself is complete, detailed and convincing, and all the circumstances surrounding it remove all reasonable doubt that it was not made freely and willingly or that it was made as a result of some kind of “internal pressure,” and even then it requires the approval of the district attorney or the attorney of the relevant command as applicable’ (para. 4 of the attorney-general’s arguments).

Notwithstanding the aforesaid, the respondents are of the opinion that there is no basis for introducing a rule that will create a sweeping prohibition against treating a defendant’s silence as ‘something extra’ for his confession, and in their opinion the courts should be given discretion to determine on a case by case basis — in view of the nature of the confession — whether the silence of the defendant can be regarded as ‘something extra’ or not.

Deliberations

6.    The question before us in this appeal requires us to consider the importance of defendants’ confessions as a means of discovering the truth and doing justice, the concerns that accompany such confessions and the nature of the probative requirement of ‘something extra’ that is needed where the conviction of a defendant is based solely on a confession that was made by him during his interrogation.

The probative significance of the right to remain silent

7.    It will be recalled that a considerable part of the appeal was devoted to the argument that the possibility of giving the silence of defendants an incriminating probative significance undermines the right to remain silent, the presumption of innocence and the rule that provides that in criminal law the burden of proof rests with the prosecution and not with the defendant.

There is no need to elaborate on the importance of the presumption of innocence and the right to remain silent in a criminal trial. According to the presumption of innocence, which is one of the basic principles of criminal law, we assume that ‘a person — every person — has a presumption of innocence from felonies and misdemeanours as long as the contrary has not been proved’ (CrimA 4675/97 Rozov v. State of Israel [1], at p. 369; see also CrimApp 8087/95 Zada v. State of Israel [2], at p. 145). The practical significance of this presumption is that the burden of rebutting it rests with the prosecution authorities, and it will succeed in doing this only when it proves the defendant’s guilt beyond reasonable doubt (s. 34V(a) of the Penal Law). Nothing less will suffice. In this sense it is possible to see the right to remain silent also as one of the aspects of the presumption of innocence. According to this right, which is enshrined in s. 161 of the Criminal Procedure Law, a defendant cannot be compelled to defend himself in a positive manner against the charges brought against him, and therefore he is not obliged to testify during his trial or answer questions that are asked in the course of an investigation that is being conducted against him, when the answers to these questions may incriminate him (see LCrimA 8600/03 State of Israel v. Sharon [3], at pp. 756-757; LCA 5381/91 Hogla v. Ariel [4], at p. 381). This shows another aspect of the strong status of the presumption of innocence, because legal systems that give defendants a right to remain silent do not compel them to disclose incriminating information that is in their possession, and the burden of proving guilt remains with the prosecution authorities alone.

8.    Thus we see that the presumption of innocence and the right to remain silent are two of the foundations on which our criminal law is based. They also constitute an integral part of the right of a defendant to a fair trial (see CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [5], at para. 66; CrimA 4596/05 Rosenstein v. State of Israel [6], at para. 53; HCJ 11339/05 State of Israel v. Beer-Sheba District Court [7], at para. 24). They are directly connected with the principles of fairness, justice and liberty (HCJ 6972/96 Association for Civil Rights in Israel v. Attorney-General [8], at p. 783). They reflect a recognition of the huge disparity of forces between the state, in its capacity as prosecutor, and the defendant standing trial. They impose on the state the burden of justifying the violation of human rights that is caused as a result of the conviction and sentencing of defendants. They reduce the risk of mistakenly convicting an innocent person. Therefore some authorities regard them as constitutional rights that are derived from the Basic Law: Human Dignity and Liberty (CrimApp 2169/92 Suissa v. State of Israel [9], at p. 342; HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 755; A. Barak, ‘The Constitutionalism of the Legal System following the Basic Laws and its Ramifications on (Substantive and Procedural) Criminal Law,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 5 (1996), at p. 23; D. Bein, ‘The Constitutional Protection of the Presumption of Innocence, 22 Tel-Aviv University Law Review (Iyyunei Mishpat) 11 (1999); M. Lindenstrauss, ‘The Presumption of Innocence’ in Israeli Law and American Law — Selected Topics (1999), at pp. 5-7, 112-113; R. Kitai, ‘The Importance of a Positive Presumption of Innocence, its Role and Nature in the Proceedings Prior to the Verdict in Criminal Trials,’ 3 Alei Mishpat 405 (2004), at p. 444; R. Kitai, ‘Protecting the Guilty,’ 6 Buff. Crim. L. Rev. 1163 (2004).

Prof. Dennis discussed the relationship between the presumption of innocence and the right to remain silent, on the one hand, and the values of human liberty and dignity and the relationship between the individual and the state, on the other:

‘It is for the prosecution to prove the accused’s guilt and not for the accused to prove innocence. According to the theory the fundamental rule concerning the burden and standard of proof in criminal cases expresses more than a bare rule of decision for the court in situations of uncertainty, and more than a rule about the allocation of the risks of misdecision. In addition it makes a political statement about the relationship between the state and the citizen’ (I.H. Dennis, ‘Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege against Self-Incrimination,’ 54 Cambridge L.J. 342 (1995), at p. 353).

The appellant is of the opinion that the possibility of attributing probative significance to the silence of a defendant undermines the status of the right to remain silent and the presumption of innocence, in that it allows the prosecution authorities to use the defendant as a means of obtaining incriminating evidence. Thereby, in the appellant’s opinion, the burden of proof is moved from the prosecution to the defendant.

9.    This question, which has proved fertile ground for legal literature, is broader that the scope of the dispute addressed by this appeal and it is not limited merely to the question of the status of a defendant’s confession in an interrogation and the nature of the additional probative requirement that it needs. There is no doubt that the possibility of drawing incriminating inferences from the silence of a defendant may induce defendants to waive this right and encourage them to testify with regard to the charges against them, but there are important considerations, both for and against, with regard to the question whether this policy should be adopted and the defendant should pay a price for his silence which will happen if we allow the courts to draw incriminating inferences from the use of this right.

Those who oppose the drawing of such inferences hold that the mere threat that hovers over the defendant that his silence may strengthen the prosecution’s evidence will place him under pressure and thereby compel him to waive the right to remain silent. Those who hold this position claim that such a situation moves the burden of proof to the defendant and even turns him into a source of incriminating evidence. This was what G.W. O’Reilly meant when he claimed that drawing inferences from the defendant’s silence also limits his freedom of choice when he comes to decide how to conduct his defence:

‘It also diminishes the accusatorial system’s protection of individual autonomy and free choice because, when suspected of a crime, individuals are no longer free to choose whether or not to provide the government with evidence to aid in securing their own conviction; they are bound to do so or face an inference of their guilt’ (G.W. O’Reilly, ‘England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice,’ 85 J. Crim. L. & Criminology 402 (1994), at p. 451).

(See also the position of Dr S. Easton in her book The Case for the Right to Silence (second edition, 1998), at pp. 180-181; C.A. Chase, ‘Hearing the “Sounds of Silence” in Criminal Trials: A Look at Recent British Law Reforms With an Eye Toward Reforming the American Criminal Justice System,’ 44 Kan. L. Rev. 929 (1996), at pp. 942-946). Another opinion holds that the right to silence is a means of doing justice and not a value in itself. According to this approach, the possibility of drawing incriminating inferences from the defendant’s silence will make it difficult to achieve the main goal of arriving at the truth, because it will provide an incentive for defendants to give de an incentive for defendants to ll ilence is a means of doing justice and not a value in itself. According to this approafalse testimony instead of availing themselves of the right to silence, which will require the courts to distinguish between true testimony and false testimony, despite the risk of error to which this gives rise. An absolute right to remain silent, without any possibility of drawing inferences that are unfavourable to the defendant from his use of this right, is therefore, according to this approach, a tool that will make it possible to distinguish between innocent defendants and guilty defendants (D.J. Seidmann & A. Stein, ‘The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege,’ 114 Harv. L. Rev. 430 (2000)).

On the basis of these outlooks, which have been adopted in American law, the United States Supreme Court has held in the well-known case of Griffin v. California [81], at p. 615, and in a host of later cases that no probative inferences of any kind should be drawn from the silence of a defendant in a trial. The court there also emphasized the lofty status of the privilege against self-incrimination as a constitutional right that is enshrined in the Fifth Amendment to the Constitution, and it held that drawing inferences from the silence of the defendant is tantamount to imposing a sanction on his exercising this constitutional right. The Supreme Court of Canada has also held, on the basis of the same outlook, that no adverse inference should be drawn from the silence of the defendant, because this would violate the right to remain silent that is enshrined in section 11 of the Canadian Charter of Rights and Freedoms (R. v. Noble [83]).

10. But this outlook has not been accepted in the Israeli legal system. According to the outlook prevailing in Israel, the right to remain silent is not violated even if the court is permitted to draw inferences from the defendant’s decision to realize this right. Admittedly the defendant is free to decide whether to testify or to remain silent. We do not compel the defendant to testify. ‘The defendant who remains silent — as opposed to the witness who remains silent — acts within the framework of the law; but the court has the power to interpret his conduct in accordance with its impression and understanding’ (CrimA 1497/92 State of Israel v. Tzubari [11], at p. 203). This outlook is also consistent with the general provision of s. 53 of the Evidence Ordinance [New Version], 5731-1971, that ‘The reliability of witnesses is a matter for the court to decide in accordance with the witnesses’ conduct, the circumstances of the case and the indications of truth that are revealed during the trial,’ since the silence of the defendant, like all other conduct, may also be a source for the court forming an impression of the defendant. My colleague, President Barak, has also expressed his outlook that the possibility of drawing inferences that are unfavourable to a defendant who remains silent does not violate his constitutional right:

‘The right to remain silent is a part of human dignity, in the sense that a person should not be compelled to testify, but it would appear that human dignity is not violated if we draw an unfavourable inference from his remaining silent’ (A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit 271 (1994), at p. 285).

With regard to the English legal system, which also allows adverse inferences to be drawn from the defendant’s silence, Prof. Ingraham has expressed the opinion that the possibility of drawing inferences from the defendant’s silence is consistent with the presumption of innocence and does not transfer the burden of proof to the defendant:

‘The jury is not compelled to draw the inference of guilt; the law does not create a presumption of guilt, which becomes conclusive on the failure of the defendant to offer rebuttal evidence’ (B.L Ingraham, ‘The Right of Silence, the Presumption of Proof, and a Modest Proposal: A Reply to O’Reilly,’ 86 J. Crim. L. & Criminology 559 (1996), at p. 591).

Prof. Dennis expressed a similar opinion in his article cited above. According to his outlook, the possibility that the silence of the defendant will give rise to probative inferences is also dictated by logic, since where there is incriminating evidence against the defendant and he refuses to offer an innocent explanation for that evidence, it may be assumed that such an explanation simply does not exist. Dennis is also of the opinion that such an outcome is also consistent with the burden of proof required in criminal cases:

‘The legal burden of proof is not reversed by the restriction of the right to silence; if the tribunal of fact is left with a reasonable doubt after consideration of all the evidence the accused must be given the benefit of it. It is not for the accused to “prove” innocence’ (Dennis, ‘Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege against Self-Incrimination,’ supra, at p. 355).

See also in this context the position of E. Gross, ‘The Right Not to Incriminate Oneself — Is It Really a Landmark in the Struggle of Enlightened Man for Progress?’ 7 Bar-Ilan Law Studies (Mehkarei Mishpat) 167 (1989), at pp. 188-190. This outlook has also been expressly recognized in statute, and in 1976 the Criminal Procedure Law was amended by adding the provision now found in s. 162, which provides the following:

‘Silence of the defendant

162. (a) A refusal of the defendant to testify may serve as support for the weight of the prosecution’s evidence and as corroboration for the prosecution’s evidence where it requires corroboration, but it shall not serve as corroboration for the purpose of section 11 of the Rules of Evidence Amendment (Protection of Children) Law, 5715-1955, or for the purpose of section 20(d) of the Interrogation Procedures and Testimony of Persons with Disabilities Law.

(b) …’

This court has held in a host of cases that this provision is consistent with experience, since ‘an innocent man is not only willing to testify, but he is happy for the opportunity to enter the witness box and refute the incriminating evidence, which he claims is false’ (CrimA 196/85 Silberberg v. State of Israel [12], at p. 525). The source of this approach can be found in the time of one of the greatest legal thinkers, Jeremy Bentham, and his famous statement —

‘Innocence claims the right of speaking, as guilt invokes the privilege of silence’ (J. Bentham, A Treatise on Judicial Evidence (London, 1825), at p. 241).

This gives rise to the outlook that the defendant’s decision to remain silent rather than to try and make a positive declaration of his innocence ‘may imply that his conscience recognizes that he is guilty’ (CrimA 139/52 Attorney-General v. Keinan [13], at p. 644).

11. It is not superfluous to point out that the provisions of s. 162 do not make it possible to regard silence as evidence with an independent weight of its own. It is clear that a conviction of a defendant cannot be based solely on the silence of the defendant: silence is not the same as a confession. The provision was also not designed to allow the prosecution to extract from the defendant new incriminating evidence ex nihilo. All that the provision was intended to do is to allow the court to regard silence, in the appropriate cases, as additional support for the existing evidence that was assembled by the investigation authorities (see the remarks of Justice Sussman in CrimA 112/52 Gabuv v. Attorney-General [14], at p. 254). Moreover, the provisions of s. 162 do not require the trial court to regard the silence of the defendant as support or corroboration for the prosecution evidence. All that the provision says is that in appropriate circumstances the silence of the defendant may corroborate or support the prosecution’s evidence, and there may certainly be cases — as has happened on more than one occasion — where it was found that it would not be right for the defendant’s silence to strengthen the incriminating evidence assembled in his case, since we recognize that there may be cases in which the defendant’s silence is the result of innocent motives and does not indicate his guilt. Thus, for example, in several cases it was held that where the defendant’s silence is intended to shield a person close to him that was also involved in the criminal enterprise, it is possible that his silence has no probative value (see, for example, CrimA 115/82 Muadi v. State of Israel [15], at p. 234; CrimA 7293/97 Jafar v. State of Israel [16], at pp. 474-475; CrimA 1888/02 State of Israel v. McDaid [17], at p. 231). There may of course be additional cases, with their own special circumstances.

This outlook, which makes it possible to regard silence as support for the evidence presented by the prosecution, was also adopted by English law more than a decade ago in the Criminal Justice and Public Order Act 1994. Section 35 of that law, which introduced a major normative change in the attitude of the courts to the silence of a defendant, also provided that the silence of a defendant may have probative value in determining his guilt:

‘(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.’

Immediately thereafter, in the same section, it was clarified that this provision does not oblige defendants to testify during the trial, and that a defendant who chooses to remain silent does not commit any offence by doing so:

‘(4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.’

Lord Taylor also held in R. v. Cowan [84], at p. 378, which was cited at length by the Appeals Court Martial, that the possibility of drawing incriminating inferences from the defendant’s silence does not violate the right to remain silent:

‘It should be made clear that the right of silence remains. It is not abolished by the section; on the contrary, subsection (4) expressly preserves it.’

The argument that this arrangement undermines the presumption of innocence was also rejected in that case, at p. 379:

‘Thus the court or jury is prohibited from convicting solely because of an inference drawn from the defendant’s silence… the burden of proving guilt to the required standard remains on the prosecution throughout. The effect of section 35 is that the court or jury may regard the inference from failure to testify as, in effect, a further evidential factor in support of the prosecution case. It cannot be the only factor to justify a conviction and the totality of the evidence must prove guilt beyond reasonable doubt.’

12. If I have discussed these matters at some length, it was because of the elevated status of the right to remain silent in our legal system. But from reading the aforesaid, there cannot be any doubt that the question whether it is possible to draw adverse inferences from the silence of a defendant has been decided in Israeli law, in s. 162 of the Criminal Procedure Law. This provision is unambiguous. It makes it possible to regard silence as corroboration or support for the prosecution’s evidence, and therefore it also constitutes the premise for our deliberations. Within the framework of this appeal we were not even asked to examine the legality or constitutional of this provision. Therefore I also see no reason to make a decision regarding the various approaches that exist on this issue. The question that we need to examine is therefore a narrow one. We need to examine whether it is right to interpret the provisions of s. 162 so that it allows us to regard the silence of a defendant not only as ‘corroboration’ and ‘support,’ but also as ‘something extra’ for a defendant’s confession, even though the provision does not expressly address this type of probative requirement.

As we shall clarify below, there are in my opinion good reasons for holding that the defendant’s silence should not be capable of constituting ‘something extra’ for his confession, unless the conditions that I shall discuss below are satisfied.

On defendants’ confessions

13. A defendant’s confession that he committed the offence attributed to him plays a central role in our laws of evidence. The reason for this is clear, since, as a rule, the defendant is the person who knows better than anyone else whether the charges levelled at him are true. Moreover, the assumption is that in the ordinary course of events a person does not portray himself as a criminal, in the sense that a person does not confess to an offence that he did not commit, and therefore there is a nucleus of truth in what he says. This is why the legal system attributes prima facie credibility to defendants’ confessions. This approach has led to a situation in which the interrogations of defendants have often focused on attempts to extract confessions that implicate them in criminal acts, and these were subsequently, during the trial, submitted as incriminating evidence against them. This has also led to the fact that in our legal system it is possible to base a conviction of a defendant on a confession that he made during his trial alone (see s. 154 of the Criminal Procedure Law).

Moreover, the legal system practised in Israel makes it possible to submit in evidence confessions that were made by the defendant even during his interrogation, as an exception to the rule prohibiting hearsay. The assumption is that such a confession goes against the interests of the person making it, and it may be assumed that he would not accept responsibility for an act that he did not commit (see also P. Murphy, Murphy on Evidence (Oxford, ninth edition, 2005), at p. 258). Notwithstanding, the status of these confessions is different from that of confessions made by the defendant during his trial, and they must be supported by ‘something extra’ in order to bring about the conviction of a defendant. The idea underlying this requirement is that confessions that come before the trial court in written form were not made before the watchful eyes of the courts and in such circumstances it is not possible to form an impression of the circumstances in which they were made, nor is it possible to examine the person who made the confession, which makes it difficult to evaluate the weight that should be given to such evidence (CrimA 556/80 Ali v. State of Israel [18], at pp. 185-186). This difficulty is further increased in view of the experience that has been accumulated in our legal system, as well as in foreign legal systems, which has shown that in reality there are indeed cases in which persons under interrogation have admitted committing offences that they never committed at all. The outlook that may have been accepted in the past — that a person never accepts responsibility for acts that he did not commit — is no longer accepted as absolutely correct. Regrettably, even in Israel there have been several cases in which convictions that were based on confessions made by suspects during their interrogations have been found to be erroneous (RT 1966/98 Harari v. State of Israel [19]; RT 3032/99 Baranes v. State of Israel [20]). In order to deal with these phenomena, a commission was appointed, with Justice E. Goldberg as chairman, and this commission published its conclusions in 1994 (see the report of the Commission concerning Convictions Based Solely on a Confession and concerning the Grounds for a Retrial (1994) (hereafter — ‘the Goldberg Commission report’)). On this subject we have also been blessed with thought-provoking literature (see M. Kremnitzer, ‘Conviction on the Basis of a Confession — Is There a Danger in Israel of Convicting Innocents?’ 1 HaMishpat 205 (1993); U. Struzman, ‘Protecting the Suspect against False Confessions,’ 1 HaMishpat 217 (1993); A. Bendor, ‘Taking a Defendant’s Confessions and its Admissibility — Purposes, Methods and What Lies In-Between,’ 6 Israel Journal of Criminal Justice (Plilim) 245 (1996); D. Dorner, ‘The Queen of Evidence v. Tarak Nujeidat — On the Danger of False Confessions and How to Deal with It,’ 95 HaSanegor 5 (2005); B. Sangero, ‘The Confession as a Basis for a Conviction — “Queen of Evidence” or Empress of False Convictions,’ 4 Alei Mishpat 245 (2005)).

14. There are many factors that lead to false confessions, but they may be classified into two categories. The main concern relates to false confessions made by suspects who were subjected to improper interrogation practices, such as violence, physical coercion or unfair psychological pressure, and who were induced by these to confess to something they had not done. As is well known, the arrangement that is designed to deal with circumstances such as these is found in s. 12 of the Evidence Ordinance, which provides that a confession made out of court will 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 free and voluntary.’ This section 12, which has been considered extensively in the case law of this court, is not relevant in the present case, in which it has not been claimed that the appellant’s confessions were not made of his own free will.

But that is not all. There is an additional concern that the defendant will make a false confession during his interrogation of his own free will, even in cases where the interrogation was conducted in a proper manner and without any of those external coercions that are addressed by the rule of admissibility in s. 12 of the Evidence Ordinance being used against him. This court has recognized in a whole host of cases the possibility that even subjective pressure and internal tension may result in the person under interrogation breaking down and ‘committing suicide’ in his confession (CrimA 48/54 Irshid v. Attorney-General [21], at p. 691). ‘It is the law that a confession is always accompanied by a concern that perhaps the person making the confession had a reason for taking responsibility for an act that he did not commit, even when the concern is unclear and not apparent’ (CrimA 6289/94 Janshvili v. State of Israel [22], at p. 176; see also CrimA 715/78 Levy v. State of Israel [23], at p. 234; CrimA 124/87 Nafso v. Chief Military Prosecutor [24], at p. 635 {266}; CrimA 3967/91 Mazon v. State of Israel [25], at p. 171; FH 3081/91 Kozali v. State of Israel [26], at p. 448).

The Goldberg Commission report listed three categories of factors that cause persons who are under internal pressure to make false confessions:

‘The first category contains those false confessions that are made because of the personality type of the person under interrogation. The person under interrogation does not distinguish between fantasy and reality, he thinks that by confessing he will “atone” for improper conduct in the past (whether true or imaginary), or he has a tendency towards self-destruction because of general and unfocused feelings of guilt, and he is one of those “troubled depressed persons that look forward to death, who stick knives in themselves and throw themselves from the rooftops’ (Maimonides, Hilechot Sanhedrin, 18, 6)…

The second category contains those false confessions that are made because of the influence of the interrogation or the arrest on the person under interrogation. This group includes persons under interrogation who, because of their inability to withstand the pressure of the interrogation from an emotional viewpoint, wish to put an end to it, sometimes in the belief that in the trial they will prove their innocence. There are cases where a person under interrogation is prepared for these reasons to confess to a less serious offence than the one of which he is suspected, out of considerations of short-term relief…

The third category contains those false confessions that are made because of social considerations and pressures: the desire to shield the true offender, family reasons (‘family honour’), solidarity with the true offender, belonging to the criminal classes and sometimes pressure from the real offender; the desire to become famous or notorious, or to be admitted into a criminal organization; taking the whole blame in order not to be labelled as an informer’ (ibid., at pp. 9-10).

The commission recognized that every person who is interrogated has his own personality type. Therefore persons who are interrogated respond and conduct themselves differently during the interrogation; ‘every person under interrogation has a personal “breaking point,” according to his personality and his ability to call upon emotional strengths in order to withstand conditions of pressure’ (ibid., at p. 8). The commission also warned that the danger that a defendant would accept responsibility for an offence that he did not commit was greater precisely for someone who was being interrogated for the first time, did not belong to the criminal classes and had no experience of arrest (ibid.). Legal and psychological literature has suggested a whole host of other possible reasons for false confessions that are unrelated to the use of improper interrogation practices, including the defendant’s distorted perception of reality; attempts to please the interrogators and win their sympathy; emotional or mental disabilities, etc. (R. Kitai-Sangero, ‘Silence as Admission: On the Erroneous Approach to Silence in the Court as Something Extra for a Confession in an Interrogation,’ 18 Law and Army 31 (2005), at pp. 38-39).

15. Admittedly, a false confession appears prima facie to be an irrational form of conduct. But we must reiterate that persons under interrogation are not homogeneous. Not all persons under interrogation act in the manner that we would expect a reasonable and thinking person to act. An interrogation places the person under interrogation in a threatening situation with which he is usually unfamiliar. This is inherently a coercive situation, which subjects the person under interrogation to many pressures, particularly because of the threat hovering over him that he may be found guilty and punished. It is not without justification that it was held that an interrogation, ‘even if it does not involve the use of physical measures, violates the liberty of the person under interrogation. It sometimes violates his dignity and his privacy’ (HCJ 5100/94 Public Committee Against Torture v. Government of Israel [27], at p. 831 {584}); ‘granting the authority to conduct a criminal investigation gives power, and it therefore involves a danger of a violation of the privacy, dignity, liberty and property of persons under interrogation’ (CrimA 4855/02 State of Israel v. Borovitz [28], at para. 48); elsewhere it was said that ‘any investigation, even if it is the most reasonable and fairest investigation of all, places the person under interrogation in embarrassing situations, burdens him, pries into his private concerns, invades his innermost recesses and places him under serious emotional pressure’ (Y. Kedmi, On Evidence (part 1, 1999), at p. 38). In view of all this, some authorities have gone so far as to claim that a false confession is in certain circumstances a normal reaction to an abnormal situation in which persons under interrogation are placed:

‘The false confession is not the product of a diseased mind, different in kind from a normal mind, but is simply an extreme manifestation of quite “normal” and understandable behavior’ (C.J. Ayling, ‘Corroborating Confessions: An Empirical Analysis of Legal Safeguards against False Confessions, 1984 Wis. L. Rev. 1121, at p. 1157).

For further discussion of the factors that cause false confessions, see G.H. Gudjonsson, The Psychology of Interrogations, Confessions and Testimony (Chichester, 1992); W.S. White, ‘False Confessions and the Constitution: Safeguards against Untrustworthy Confessions,’ 32 Harv. C.R.-C.L. L. Rev. 105 (1997), at p. 108. A similar position was expressed by Justice D. Dorner, in a minority opinion. According to her, a confession that was made in an interrogation is suspect evidence that should be regarded with great caution:

‘A defendant’s confession is suspect evidence, even if it was made without any external pressure being exerted on the defendant. The reason for this is that in the absence of other solid evidence that would prove the guilt of the defendant even without a confession, making a confession is in many cases an irrational act, and taking the irrational step of making a confession gives rise to a suspicion as to whether the confession is true. This suspicion is not merely theoretical, but it has been proved on more than once occasion by experience’ (CrimFH 4342/97 El Abeid v. State of Israel [29], at p. 836).

But as I have said, this position of Justice Dorner remained a minority opinion on that point, and confessions have always been and remain a very important tool for discovering the truth. A confession is ‘primus inter pares in the realm of evidence’ (per Justice M. Cheshin in El Abeid v. State of Israel [29], at p. 833). ‘Take confessions and testimonies from the law and you have removed the heart and soul of justice’ (per Justice T. Strasberg-Cohen, ibid. [29], at p. 855). ‘… the confession has a place of honour in the hierarchy of evidence in criminal law, and it is an important and accepted tool in those cases where the court is persuaded that the confession is a true one’ (per Justice E. Arbel in CrimA 6679/04 Steckler v. State of Israel [30], at para. 23). But it is important to clarify that we do not ignore the possibility that defendants will make false confession during their interrogations. On the contrary, we are aware of this danger and therefore we are enjoined to examine with great care the content of the confession before we base the defendant’s conviction on it. The outlook that ‘a person does not incriminate himself if he is innocent cannot be accepted as a legal axiom’ (in the words of the Goldberg Commission report, at p. 6). For this purpose case law has also developed two mechanisms that seek to prevent miscarriages of justices that may be caused as a result of relying on false confessions. We will now turn to consider these mechanisms.

Not relying on false confessions — the internal and external tests

16. There are two tests — an internal test and an external test — that are designed to contend with the fear that the defendant made false confessions in his interrogation. The first test is internal to the confession; according to this we evaluate the weight of the confession itself in view of the indications of truth that it reveals. The nature of this test was discussed by my colleague President Barak in one case, and among the ‘indications of truth’ he listed the logic or lack of logic in the version of events recounted by the defendant in his confession, ‘the clarity or confusion of the details contained in it and other similar indications of common sense that lead a rational person to trust what someone says,’ and also whether the story is ‘coherent, contains an internal logic of its own and is complete, or whether the story is confused, fragmented and has no logical consistency’ (Levy v. State of Israel [23], at pp. 234-235; see also Kozali v. State of Israel [26], at p. 458). In cases where the trial court finds, in reliance on these criteria, that the confession does not contain indications of truth, and that it should be given negligible weight, then it has been held that the defendant should not be convicted on the basis of the confession, and in the absence of other incriminating evidence this is sufficient to bring about the defendant’s acquittal. This situation did not exist in the appellant’s case. The District Court Martial found, and I do not think this conclusion should be changed, that the appellant’s confession should be given considerable weight:

‘We are dealing with a consistent confession from a chronological viewpoint; it is comprehensible, complete and logical. The defendant incorporates his descriptions of events that happened from the time he was 16 until the time of the interrogation… Moreover, his confession is very detailed; it gives a detailed description of the manner in which he used the drugs, including an explanation about the various methods of using cannabis. The defendant explained his feelings after using the drugs, the reasons that led him to use them during his military service, and finally he even expressed regret for what he did… The fear of a false confession is also lessened because the defendant chose in his confession not to mention the names of the persons who supplied him the drugs as well as the name of the person who used them with him… From this we learn that the defendant’s replies during his interrogation were well thought out and there is nothing in them to indicate that they were made casually or as a result of any hidden internal motive or as a result of pressure’ (p. 4 of the verdict).

17. But this determination is insufficient, since, as I have said, there is another mechanism for examining the confession. This other mechanism is external to the confession, and according to it we are required to strengthen the defendant’s confession with an additional probative requirement of ‘something extra.’ This requirement was introduced in our legal system in its earliest days (CrimA 3/49 Andelersky v. Attorney-General [31]), and over the years this court has reiterated its importance as a means of contending with the fear of false confessions. In addressing the nature of this requirement of ‘something extra,’ Justice S.Z. Cheshin held that it imposes upon the prosecution authorities ‘a duty to show why we should rely on the confession, i.e., what are the circumstances that require the conclusion that the confession is correct’ and also that it is designed to show ‘that the defendant is a person who had an opportunity to do the felonious act to which he confessed before he was brought to trial’ (ibid. [31], at p. 593). It was also held that the requirement of ‘something extra’ did not need to prove the fact that the offence itself was committed or to identify the defendant as its perpetrator, and any evidence, whether direct or circumstantial, would suffice to authenticate the confession (CrimA 290/59 A v. Attorney-General [32], at p. 1499; CrimA 543/79 Nagar v. State of Israel [33], at pp. 141-142). In this way our legal system differs from the American legal system. Admittedly, there too the courts require confessions made out of court to be supported by additional authenticating evidence, but the requirement there is that this support should be independent and substantial evidence that also relates to the corpus delicti of the offence and nothing less than this (see Opper v. United States [82]; see also Ayling, ‘Corroborating Confessions: An Empirical Analysis of Legal Safeguards against False Confessions, supra, at pp. 1126, 1145-1152).

18. The requirement of ‘something extra’ is therefore intended to authenticate the version of events that the defendant told in his interrogation. It is intended to remove the doubt that ‘perhaps for hidden reasons known only to the person making the confession, he chose to admit to an act that he did not do’ (CrimFH 3391/95 Ben-Ari v. State of Israel [34], at pp. 450-451). For this reason we do not satisfy ourselves with an examination of the weight of the confession. We therefore require an ‘external’ addition to the confession, since the ‘something extra’ is ‘the only objective criterion available to the court for examining the truth of the “subjective” confession of the defendant’ (ibid. [34], at p. 451). This objective criterion also emphasizes the great importance of the ‘something extra’ as a means of protecting the defendant against false confessions. After all, examining the weight of the confession (‘the internal test’) is hardly unique to the fear of false confessions, since the courts are required to determine the proper weight of every piece of evidence that comes before them, which they do on a regular basis (s. 53 of the Evidence Ordinance). From this we see the great importance of the requirement of ‘something extra’ (‘the external test’) as a mechanism that is unique to examining the credibility of confessions not made under the watchful eye of the courts. The Goldberg Commission report also recognized the great importance of the requirement of ‘something extra,’ and this was reflected in the commission’s recommendation to enshrine this requirement in statute, in the following language:

‘(a) A statement of a person outside the court may be admitted as evidence against him in a criminal trial.

(e) A defendant shall not be convicted on the basis of a statement admitted under subsection (a) unless the evidence before the court contains additional external evidence that constitutes corroboration, support or something extra which in the circumstances of the case is capable, in the opinion of the court, of removing any doubt as to the credibility of the statement in so far as the commission of the offence is concerned’ (Goldberg Commission report, at pp. 21-22; emphasis supplied).

Prof. Mordechai Kremnitzer, who was one of the members of that commission, was of the minority opinion that ‘something extra’ should not be sufficient for a defendant’s confession, and this requirement should be replace by the stricter requirement of ‘corroboration’ for the confession (see p. 64 of the Goldberg Commission report). Later a private bill was tabled with the aim of adopting the position that requires the defendant’s confession to be supported by corroborating evidence, but this did not become law (see the draft Evidence Ordinance Amendment (Requirement of Corroboration for a Conviction on the Basic of a Confession) Law, 5764-2004).

19. By contrast, there were some authorities who questioned whether the requirement that the confessions of persons under interrogation are supported by ‘something extra’ is justified, since in their opinion it is possible to base the conviction on this confession only, without any need for authenticating evidence (see the article of E. Harnon, ‘The Need for “Something Extra” to Convict a Person in accordance with a Confession Made out of Court,’ 28 HaPraklit (5732) 360, and his position in his book The Law of Evidence (vol. 2, 1977), at pp. 282-286; a similar position was expressed also by Justice Ben-Porat in Ali v. State of Israel [18], at p. 182). I will also add that even according to the legal system practised in England it is possible to base a conviction of the defendant solely on a confession that he made during interrogation, and there is no express requirement for any additional authenticating evidence for this purpose (D.B. Griffiths, Confessions (Edinburgh, 1994), at p. 116; see also J.H. Wigmore, Evidence in Trials at Common Law (Boston and Toronto, vol. 7, rev. by J.H. Chadbourn, 1978), at pp. 508-510). Learned counsel for the appellant believes that this credibility that the English legal system gives to confessions made in interrogations, and its willingness to rely on them alone, is also related to the fact that the legal system practised in England has recognized the right of the defendant to receive legal advice at every stage of the investigation and has introduced requirements to make audio recordings of interrogations and other such rules that are intended to protect persons under interrogation and are enshrined in the Police and Criminal Evidence Act of 1984 and regulations enacted thereunder (for a comprehensive survey of the rights and arrangements enshrined in that law, see M. Zander, The Police and Criminal Evidence Act 1984 (London, fifth edition, 2005)). This argument is logical. It is possible that these rules, which introduced close supervision of the manner in which interrogations are conducted, allow the courts to form a better impression during trials of the confessions made by persons under interrogation, which reduced the fear of false confessions (see, in this regard, Easton, The Case for the Right to Silence, at pp. 105-127). Whatever the case, the approach that regards a confession on its own as sufficient has not been adopted in our legal system, and the requirement of ‘something extra’ for a confession that the defendant made in his interrogation remains intact.

20. The requirement of ‘something extra’ is flexible and open-ended. What will satisfy it varies from case to case and depends also on the credibility of the confession itself. The greater the weight of the confession, the smaller the weight of the ‘something extra’ that is required to authenticate the confession, and vice versa, the smaller the weight of the confession, the greater the weight required for the ‘something extra.’ It has also been held, therefore, that it is possible that there may be cases in which the ‘something extra’ will only need to be ‘as light as a feather’ (CrimA 178/65 Usha v. Attorney-General [35], at p. 156; CrimA 428/72 Ben-Lulu v. State of Israel [36], at p. 270; El Abeid v. State of Israel [29], at p. 834). On the other hand, it has been held that there may be cases in which the weight required for the ‘something extra’ will be so great that it will turn into a requirement of ‘corroborative evidence’ (Ben-Ari v. State of Israel [34], at p. 449). For this reason my colleague President Barak has said that ‘evidence that is fit to be used as “something extra” in one case may not be considered fit to be used as “something extra” in another case, since it all depends upon the circumstances of the case’ (Levy v. State of Israel [23], at p. 234).

The evidence that has been found, in the specific circumstances of individual cases, to be capable of satisfying the requirement of ‘something extra’ include the following: the lies of the defendant on a major matter; implicating conduct of the defendant after the criminal act; the failure of an alibi argument (Janshvili v. State of Israel [22], at pp. 175-176); the knowledge of secret details — details of which the person making the confession could not have had any knowledge unless he was involved in the criminal act; in this regard it was held that:

‘The greater the number of secret details that the defendant incorporated in his confession, the smaller the fear that his knowledge of these does not derive from the commission of the offence but from hints suggested to him unconsciously by his interrogators when he was interrogated and that were picked up by him’ (CrimA 4769/92 Nijam v. State of Israel [37], at para. 12).

The requirement of ‘something extra’ may also be satisfied by one of the following: expressions that indicate a feeling of guilt on the part of the defendant (CrimA 7595/03 A v. State of Israel [38], at pp. 11-12); proof that shows he was present at the scene of the crime when it was committed, when there is no satisfactory explanation for this (CrimA 5225/03 Habbas v. State of Israel [39], at p. 32); a reconstruction of the crime by the defendant, when he describes in detail the sequence of events in a manner that is consistent with the findings from the scene of the crime (CrimA 3338/99 Pakovitz v. State of Israel [40], at para. 19). It need not be said that when there is additional and independent incriminating evidence against the defendant, the requirement of ‘something extra’ is also satisfied.

We therefore need to consider the question whether the silence of the defendant during the trial may be added to this list and may also constitute ‘something extra’ for his confession in his interrogation. In my opinion, as I have already implied above, the answer to this question is no, unless conditions that I will set out below are satisfied. I will now explain my reasons for this.

The silence of the defendant in a trial as ‘something extra’ for his confession during interrogation

21. The question whether it is right to regard the silence of the defendant as ‘something extra’ for his confession during interrogation has not yet been decided by this court. But the question arose more than twenty years ago in Ali v. State of Israel [18]. In that case the justices hearing the case expressed their opinion on this issue briefly, but their remarks were made in obiter dicta since in the circumstances of that case there was additional evidence against the defendant that was capable of satisfying the requirement of ‘something extra’ for the confession. Justice Ben-Porat expressed the opinion that the silence of the defendant in his trial constitutes ‘something extra’ for his confession, since ‘when the legislature determined [in s. 162 of the Criminal Procedure Law] that the silence of the defendant amounts to “corroboration,” it thereby made silence an independent and separate piece of evidence in support of the prosecution’s case’ (ibid. [18], at p. 182). The other justices hearing the case, Justices Elon and Shiloh, disagreed with this position. This is how Justice Elon expressed the matter:

‘It is right and proper that the court should not regard the silence of the defendant in court as support for his confession that he made out of court. Admittedly a confession made by the defendant in court is sufficient on its own in order to convict him, but an express and clear confession made in court before the judge cannot be compared to the silence of the defendant and his refusal to testify. In the former case the judge can be presumed to understand and hear from the defendant’s statements that his confession is a real one and that it is not being made by him in order to take responsibility for something he did not do; but it is otherwise in the latter case, where the defendant remains silent, since the judge does not as a rule have any indication or basis from which he may infer the reason and background for the silence’ (ibid. [18], at p. 185).

In later cases that came before the court the issue under discussion in this appeal did not arise again, and it remained undecided (see Muadi v. State of Israel [15], at p. 234).

22. When we seek for a solution to the question that arises in this case, we cannot merely refer to the provisions of s. 162 of the Criminal Procedure Law. We have seen that this section, which allows the silence of the defendant to be regarded as support or corroboration for incriminating evidence, does not expressly mention ‘something extra.’ One possible interpretation of this, which was adopted by the courts martial, is to extend the scope of the provision and to allow it to regard silence also as ‘something extra.’ I will admit that this interpretation is logical: the law is that the requirement of corroboration is satisfied only when three cumulative conditions are fulfilled — that it is independent and separate from the evidence requiring corroboration; that the corroborating evidence implicates the defendant in the commission of the offences with which he is charged; and, finally, the corroboration relates to a significant point that is in dispute (CrimA 387/83 State of Israel v. Yehudai [41], at p. 203; CrimA 2949/99 Cohen v. State of Israel [42], at p. 645; CrimA 1538/02 A v. State of Israel [43], at p. 598). As I have shown, the requirement of ‘something extra’ may be satisfied even when these conditions are not fulfilled. In case where the confession has consideration weight and it contains many indications of truth, the trial court may be satisfied with authenticating evidence that has very little weight. This gives rise to the claim that the stricter requirement includes the more lenient requirement, and what may satisfy the requirement of corroboration can also constitute ‘something extra’ for the defendant’s confession. But this interpretation is not free of doubt, since if you say that the legislature wanted to regard the silence of the defendant also as ‘something extra,’ you are compelled to wonder why it did not state this expressly within the framework of s. 162 of the Criminal Procedure Law? Indeed, the possibility that the silence of the legislature in this matter did not arise from an omission and was not caused by inadvertence is a very reasonable possibility in view of the fact that at the time when the law was amended and this provision was added to it in 1976, the requirement of ‘something extra’ already existed. This also leads to the conclusion that the question whether the silence of the defendant should be regarded as ‘something extra’ for his confession cannot be determined solely on the basis of s. 162. It is an ethical question, which also requires us to consider the weight of confessions in our legal system and the reason why they need to be supported by additional authenticating evidence. Moreover, the legal answer to the question that arises in the case before us cannot be derived only from the technical definitions that were given to the terms ‘support’ and ‘corroboration’ in the aforesaid s. 162, and before we reach the correct result we should take into account the purpose underlying the arrangements and the practical ramifications of the possible legal outcomes. This is what my colleague President Barak meant when he said that ‘the law is a social tool. Legal concepts are intended to realize social goals. They are an instrument for achieving social objectives. They are an expression of the proper balances between conflicting values and interests’ (HCJFH 4601/95 Serrousi v. National Labour Court [44], at para. 7). Elsewhere my colleague the president added that —

‘We should distance ourselves from a jurisprudence of concepts, according to which the theoretical concept forces itself upon interests and values that require a normative arrangement. We should aspire to a jurisprudence of values, according to which the theoretical balance is the result of balancing and arranging the interests and values that require a normative arrangement’ (CrimFH 4603/97 Meshulam v. State of Israel [45], at para. 18).

23. I have discussed how the requirement of ‘something extra’ is intended to help the court identify false confessions. The main concern that the requirement is intended to address is the concern of false confessions that are made because the defendant was under internal pressure or had a hidden motive during his interrogation. Admittedly, external pressure or some other improper conduct that was directed at the defendant in his interrogation may also lead to false confessions, but in order to deal with these concerns there are other special arrangements, some that have been provided in statute — s. 12 of the Evidence Ordinance — and others that have been developed in case law, such as the rule that was determined in Yissacharov v. Chief Military Prosecutor [5].

We have seen that the motives and factors that lead to the creation of internal pressure may be hidden and to a bystander the course of action of making a confession may seem unreasonable. It is precisely because of this that I am of the opinion that it would not be right to rely on the silence of the defendant — the meaning of which is uncertain — in order to dispel the concerns that arise. The court martial was of the opinion that the defendant’s plea of not guilty in his trial shows that he is no longer subject to the internal pressure that led him to confess during his interrogation to an act that he did not commit. In such circumstances the court martial held that the defendant can be expected to explain what led him to confess to the acts and to defend himself in a positive manner against the charges levelled at him. I cannot accept this outlook. Just as we cannot accept the argument that a person does not confess to offences that he did not commit as a legal axiom, so too we cannot rely on the argument that a defendant who denies the charges is not subject to any hidden pressures. On the contrary, it is possible that precisely because such internal pressures also exist during the trial, the defendant remains silent and does not enter the witness box. Who can guarantee that the same hidden motive that caused the defendant to take responsibility during his interrogation for an act that he did not commit will not return and determine the line of defence that he will adopt during the trial, when he chooses the right to remain silent? It will be remembered that even the respondents in their reply recognized this possibility that ‘a defendant who took responsibility during a police interrogation for committing an offence that he did not commit will deny the charges but choose not to testify in his own defence’ (para. 44 of the attorney-general’s reply). Admittedly it is possible that such a situation will occur only in exceptional circumstances. It is also possible that a reasonable defendant, who acts rationally, will try to prove his innocence by giving positive testimony. But in criminal law we are not dealing with the reasonableness or unreasonableness of the defendant’s conduct, but with the question whether he committed the offences attributed to him or not. There is no need to reiterate that in criminal cases we are dealing with matters of life and death, and that the danger of convicting an innocent person is great. This also leads to the fundamental idea that it is better to acquit ten guilty persons than to convict one innocent one. The requirement that the defendant’s confessions should be supported by ‘something extra’ is intended to prevent such consequences. Relying on the silence of the defendant as ‘something extra’ for his confession — when the motive for the confession and the motive for the silence are unclear — may undermine the purpose of that requirement, namely the desire to authenticate the defendant’s confession. Prof. E. Kamar expressed these concerns well when he said:

‘In practice, even that depressed defendant, who wishes to “commit suicide” in his confession, may be subject to an internal pressure that will prevent him from explaining to the court why he confessed. We cannot of course expect someone, who has just now regretted his intention to “commit suicide” in his confession, to stand before the court and announce the exact reasons why he made a false confession. The claim that the defendant’s plea of not guilty to the charges in court rules out the possibility that he is still under the influence of the factor that induced him to confess in the interrogation is logical in ordinary cases; but the requirement of something extra is intended to contend precisely with the exceptional cases, when the conduct of the defendant differs from the norm and is difficult to explain. In such cases it is hard to rely on the logical assumption that someone who denies the charges in the court is entirely free of the pressures that were sufficiently strong to induce him earlier to confess to something that he did not do’ (E. Kamar, ‘Corroborating Confessions by the Defendant’s Own Statements,’ 5 Israel Journal of Criminal Justice (Plilim) 277 (1996), at pp. 292-293).

It also cannot be denied that in those cases where the legislature allowed the defendant’s silence to be regarded as support and corroboration for the prosecution’s evidence, the silence serves as an addition to other testimonies that do not originate with the defendant. This is the case when the silence is an addition to the testimony of a state’s witness, an accomplice, a minor who testified before a child interrogator or a witness whose statement was submitted by the prosecution under s. 10A of the Evidence Ordinance. The situation is different when we are speaking of the defendant’s confession, since them his silence is an addition to his own testimony that he gave during the interrogation, and in such circumstances I am of the opinion that the silence cannot authenticate the confession to the required degree.

24. I have also reached this conclusion for another reason. In my opinion it is not desirable, as a matter of policy, to allow the prosecution authorities to file indictments when all they have in their files is the confession of the defendant, in the hope that when the defence case is presented, the defendant will choose to remain silent, thereby providing them with the ‘something extra’ that is required for supporting the confession. Allowing this might result in greater efforts being made to obtain a confession from the defendant where the investigation should also focus on other evidence that is external to the confession, whether material evidence or testimony, which also has an important role in revealing the truth. This court has emphasized in a whole host of cases the great importance of carrying out a thorough investigation, which exhausts the possible lines of investigation thoroughly, and in which all the relevant evidence is assembled, so that the truth will come to light (see CrimA 721/80 Turgeman v. State of Israel [46], at pp. 471-472; CrimA 10596/03 Bashirov v. State of Israel [47], at paras. 19-20; CrimA 5386/05 Alhorti v. State of Israel [48]). Prof. Kremnitzer has described these concerns well, even though his remarks were directly mainly at interrogations in which coercive measures and prohibited pressure are directed at the person under interrogation:

‘A legal system that allows a conviction on the basis of a confession, is tolerant of interrogation methods that involve pressure and usually allows defendants’ confessions encourages the investigative authorities to resort to and rely on investigation methods that revolve around the person under interrogation, instead of directing the investigative effort at assembling other evidence. This phenomenon has serious repercussions upon the general level of the police investigation, the image and character of the interrogators, their education and training and the interrogation ethos’ (M. Kremnitzer, ‘Conviction on the Basis of a Confession — Is there a Danger in Israel of Convicting Innocents?’ supra, at p. 215).

It may also be assumed that the greater the willingness of the legal system to rely on defendants’ confessions as the sole evidence for a conviction, the greater the efforts to obtain a confession during interrogations, despite the negative repercussions that may result from such a situation (see also in this context G.H. Van Kessel, ‘The Suspect as a Source of Testimonial Evidence: A Comparison with the English Approach,’ 38 Hastings L.J. 1 (1986), at pp. 111, 122; Kamar, ‘Corroborating Confessions by the Defendant’s Own Statements,’ supra, at p. 294; Sangero, ‘The Confession as a Basis for a Conviction — “Queen of Evidence” or Empress of False Convictions,’ supra, at pp. 265-274; O. Bassok, ‘ “Hard Cases Make Bad Law and Bad Law Makes Hard Cases” — On the Ramifications of the Yosef Ruling,’ 18 Mishpat uTzava (Law and Army) 77 (2005), at pp. 126-136).

25. At the same time, it is possible to conceive of cases in which the defendant’s confession is a true one, but additional external evidence supporting this confession does not exist or cannot be found. In these cases, when it becomes clear to the trial court that the confession was not made as a result of any internal pressure, there is a concern that it is the defendant’s acquittal — for the reason that his silence does not constitute ‘something extra’ for his confession — that will lead to a failure to arrive at the truth, and this will be also undermine the need to fight the increasing rate of crime and to protect the public from the danger of lawbreakers. This danger, it need not be said, increases when we are speaking of serious offences. In view of this, we should consider whether there are circumstances in which the trial courts have a means of effectively supervising the way the interrogation is conducted, so that it will be possible to obtain a proper impression of the defendant’s conduct and the actions of his interrogators. Here we should emphasize that the more transparent the interrogation, the easier it will be to form an impression of the circumstances in which the confession was made, and the less justification there will be for making a distinction between a confession made during the investigation and a confession made in court, which, it will be remembered, is sufficient on its own for convicting the defendant. Because of this argument there have been calls for the need to make video or audio recordings of the interrogations of suspects, and not merely to make a verbal record of them, in order to create a way in which the courts can see what is happening in the interrogation rooms, despite the (mainly budgetary) difficulties that this creates. The Goldberg Commission also recommended introducing a requirement that video recordings of interrogations should be made and it emphasized that such recordings would also result in defendants no longer being able to raise unfounded complaints about the manner in which the interrogation was conducted (see pp. 30-35 of the report). Others have emphasized that a video recording of the interrogation will not only allow the courts to supervise the interrogation practices being used, but it will also allow them to receive an impression of the interaction between the interrogator and the person under interrogation and other factors that are not contained in a verbal record (see White, ‘False Confessions and the Constitution: Safeguards against Untrustworthy Confessions,’ supra, at pp. 153-156). The importance of the video recording was discussed by Justice Goldberg more than twenty years ago:

‘The recording does not merely preserve accurately the verbal part of the statement but also the factors that accompany it (the tone in which the statement was made, hesitation, anger, etc.) and also what was said by the person speaking to the person making the statements, and in this way it “speaks for itself.” The court is thereby given additional tools to see for itself the credibility of the witness and the correct meaning and truth of what he says’ (CrimA 323/84 Shriki v. State of Israel [49], at p. 517).

In 2002 these calls were answered by the legislature, which introduced, in s. 7 of the Criminal Procedure (Interrogation of Suspects) Law, 5762-2002, a requirement that video recordings of interrogations should be made when there was a suspicion that serious offences carrying a sentence of ten years imprisonment or more had been committed. This provision, which because of various delays has not yet come into effect, should in the future significantly improve the ability of the courts to assess the nature of the confessions brought before them. It will allow the courts to form the closest possible impressions of the true circumstances in which the confession was made, and it will provide better protection for defendants. The great importance of this provision can also be seen from what is stated in the explanatory notes to the draft law:

‘The proposed amendment will also allow the court to discover what part of the confession was said by the defendant of his own free will and of his own initiative, and what was said to the interrogators in response to their questions, how it was said and how the suspect appeared when making the confession. The court will also be able to decide whether the defendant was “led” by the interrogator’s questions to answer as he did or whether he was only asked clarifying questions, and it will also be possible to obtain an impression from the defendant’s conduct and the way in which he speaks of his state of mind and his understanding of his interrogators’ questions. The video recording will prevent a situation in which the interrogator records an erroneous reply because of a misunderstanding and the suspect signs his confession without understanding it or without it having been read to him.

The proposed amendment constitutes an improvement in the protection of the rights of the defendant, and it prevents or reduces the possibility of mistakes, misunderstandings or deliberate errors, and thereby improves the ability of the court to arrive at the truth on a question that is so central to the criminal trial’ (Explanatory Notes to the draft Evidence Ordinance Amendment Law (no. 15) (Confession of a Defendant on Serious Offences), 5761-2000 (Draft Laws 2928, 30 October 2000, at p. 54).

It need not be said that the fear of a miscarriage of justice caused as a result of a conviction based on a false confession is smaller when a video recording of the interrogation is made and the recording is brought before the trial court, so that it can obtain an almost direct impression of the manner in which the interrogation was held and of the conduct of the defendant and his interrogators.

26. In view of this, I am of the opinion that whereas it would be right to determine that as a rule the silence of a defendant should not constitute ‘something extra’ for a confession that he made during his interrogation, it would not be right to determine such a sweeping rule with regard to interrogations where a video recording was made, so that the court is given the possibility of watching the interrogation and the defendant’s confession. This conclusion is also capable of striking a proper balance between the desire to protect the rights of the defendant and the desire to arrive at the truth, bring lawbreakers to justice and protect the public from them.

Here we should emphasize that this result does not lead to the conclusion that in every case where a video recording of the defendant’s interrogation is made, his silence should be regarded as ‘something extra’ for the confession that made during his interrogation. The question of the significance that should be attributed to the silence of the defendant is a matter for the trial court to decide in accordance with the special circumstances of the case before it and in accordance with its discretion. The video recording of the interrogation is therefore an essential but not a sufficient condition for regarding the silence of a defendant in a trial as ‘something extra’ for his confession in the interrogation. Thus, for example, where an examination of the confession itself shows that the indications of truth in it are not many, or where the silence of the defendant is given a satisfactory explanation that is consistent with his innocence, then the silence of the defendant ought not to be regarded as ‘something extra’ for his confession. In addition, where there is a disparity between facts stated by the defendant in his confession and objective findings from the scene of the crime and where, despite the video recording of the interrogation, the trial court for various reasons has difficulty in forming an impression of the circumstances in which the confession was made, it would be right to require for such a confession some external authenticating evidence and not merely the silence of the defendant in order to dispel the concerns that arise. This list is not exhaustive. There may be other examples. The important thing is that the court should exercise great caution before it reaches the conclusion that the silence of the defendant may be regarded as the additional evidence that is required for the confession he made during his interrogation.

Conclusion

27. The silence of the defendant may — but does not necessarily — constitute ‘something extra’ for the confession he made during his interrogation, provided that a video recording of the interrogation was made and the court that saw the recording of the interrogation received the impression that it has before it a true confession. When one of these two conditions is not satisfied, the silence of the defendant cannot constitute ‘something extra’ for his confession.

In my opinion this outcome sets out the ideal approach in this matter. Notwithstanding, I should emphasize that the practical ramifications of this decision will not lead to a far-reaching change in the criminal law or to any difficulty in convicting guilty persons in so far as the civil courts are concerned, since, as the respondents admit, in the prosecution of civilians the practice is not to file indictments against someone where the only incriminating evidence against him is his confession in the interrogation. The source for this practice is the attorney-general’s guideline no. 53.000 of 1970. It is not clear to me why the military prosecution failed to comply with this and I see no reason why the military courts should be allowed discretion to regard the defendant’s silence as ‘something extra’ for his confession where the attorney-general himself saw fit to rule out such a possibility.

In view of the aforesaid, and in view of the fact that no video recording of the appellant’s interrogation was made, I would recommend to my colleagues that we order his acquittal on the offence of the use of a dangerous drug.

 

 

Justice E. Arbel

A confession that was made by a defendant out of court is admissible evidence, if it satisfies the conditions set out in s. 12(a) of the Evidence Ordinance [New Version], 5731-1971 (hereafter: ‘the Evidence Ordinance’), namely that it was made ‘freely and willingly.’ Once the confession has overcome the admissibility ‘barrier,’ it may be used to convict someone as the sole evidence against him, if it satisfies two tests: the confession’s internal indications of truth test (‘the internal test’) and the ‘something extra’ test, which is capable of authenticating the content of the confession (‘the external test’).

1.    At the heart of the appeal lies the question whether a defendant’s silence in his trial may constitute ‘something extra’ for the confession that he made during his interrogation, namely the extra evidence that is required in order to support the truth of the confession.

Deciding this question requires a delicate balance between several values. First and foremost we have before us the value of discovering the truth in a criminal trial, which realizes the main goals of the criminal law, namely fighting crime, safeguarding the public and protecting the rights of actual and potential victims of crime. The need to further these goals becomes more urgent as the rate and sophistication of crime increase. Of no less importance than the value of discovering the truth is the right of the defendant to a fair and proper trial, which guarantees that justice is done and false convictions are avoided. A proper balance between these serves to further the supreme purpose of criminal law — the punishing of the guilty and the acquittal of the innocent — and thereby ensures public confidence in the ability of the judiciary to do justice to the individual and to society as a whole (see the remarks of Justice Beinisch in CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [5], at para. 43 {383} and the remarks of Justice Procaccia in HCJ 11339/05 State of Israel v. Beer-Sheba District Court [7], at para. 11. In this balance the interest of exhausting probative methods of discovering the truth competes with the right of the defendant to a fair trial and the desire to avoid a miscarriage of justice by convicting the innocent or acquitting the guilty. We do not have a ‘magic solution.’ In each case we need to consider the competing values and find a proper and fair solution according to its concrete circumstances.

2.    The various rules that require additional evidence in certain circumstances for a criminal conviction — in our case the ‘something extra’ for a defendant’s confession — further the purposes of discovering the factual truth and protecting the right of the defendant to dignity and liberty. In this respect both of these purposes complement one another — they ‘both serve the supreme purpose of the law that concerns the doing of justice and preventing miscarriages of justice in their broadest sense’ (Yissacharov v. Chief Military Prosecutor [5], at para. 45 {385}). But in certain circumstances these purposes may tip the scales in opposite directions, and there is therefore a need to strike a balance between them.

3.    My colleague Justice Levy examined the fundamental question before us thoroughly and comprehensively, and he reached the conclusion that the answer that should be given to this question is no, unless the conditions set out in his opinion are satisfied. Justice Levy concludes his opinion with the following words:

‘The silence of the defendant may — but does not necessarily — constitute “something extra” for the confession he made during his interrogation, provided that a video recording of the interrogation was made and the court that saw the recording of the interrogation received the impression that it has before it a true confession. When one of these two conditions is not satisfied, the silence of the defendant cannot constitute “something extra” for his confession’ (para. 27 of Justice Levy’s opinion).

I agree with my colleague’s position that the silence of a defendant may — but does not necessarily — constitute ‘something extra’ for a confession that he made in his interrogation, and like him I too am of the opinion that as a rule we should refrain from regarding the defendant’s silence in his trial as ‘something extra.’ But my position differs from my colleague’s position on two main issues: one is the statutory premise for examining the question, and the other concerns the exceptions to the aforesaid rule which should be recognized within the scope of judicial discretion and on the basis of proper judicial policy.

4.    My position in essence is that s. 162 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereafter: ‘the Criminal Procedure Law’ or ‘the law’) makes it possible to hold that the silence of a defendant in his trial may serve as ‘something extra’ for a confession that he made during his interrogation. At the same time, by virtue of proper judicial policy that is derived from a whole range of considerations and interests that are relevant to the issue, I agree with my colleague’s position that in general the silence of a defendant in his trial should only constitute ‘something extra’ for a confession that he made in his interrogation in exceptional cases. But whereas my colleague is of the opinion that the exception should only apply to interrogations where a video recording was made, my position is that the trial court should be allowed a broader margin of discretion, by determining criteria for the restrained and careful manner in which it should be exercised.

My colleague set out in his opinion a comprehensive examination of fact and law, and therefore I will restrict myself to explaining my position by clarifying how my position differs from his.

Background — on defendants’ confessions in general and on the fear of false confessions in particular

5.    The weight that should be given to defendants’ confessions, among the other evidence that is recognized for the purpose of convicting someone in a criminal trial, has arisen repeatedly over the years in legal deliberations and academic and social debate. This important debate, like the experience and the knowledge that have been accumulated over the years with regard to the various factors that cause defendants to make false confessions, have gradually led to changes and fluctuations in accepted outlooks concerning the status of the confession in our legal system (report of the Commission concerning Convictions Based Solely on a Confession and concerning the Grounds for a Retrial (1994), which was chaired by Justice E. Goldberg (hereafter — ‘the Goldberg Commission report’); see also the various opinions that were expressed on this issue in CrimFH 4342/97 El Abeid v. State of Israel [29]; M. Kremnitzer, ‘Conviction on the Basis of a Confession — Is there a Danger in Israel of Convicting Innocents?’ 1 HaMishpat 205 (1993); B. Sangero, ‘The Confession as a Basis for a Conviction — “Queen of Evidence” or Empress of False Convictions,’ 4 Alei Mishpat 245 (2005)). I am aware of the various concerns that accompany the making of confessions. They cannot be ignored. But I am also of the opinion that they should not be exaggerated. Confessions were and remain a main tool of the legal system in arriving at the truth and in bringing criminals to justice, if only for the simple reason that, as President Barak said: ‘Sometimes only the defendant who confesses can provide a coherent and detailed version of the sequence of events’ (El Abeid v. State of Israel [29], at p. 865). The probative importance of the confession has been recognized in case law that has described its centrality in the process of discovering the truth: ‘Take confessions and testimonies from the law and you have removed the heart and soul of justice’ (ibid. [29], at p. 855). In this regard I shall mention once again what I said in a previous case:

‘… Since the Goldberg Report the splendour of the confession as the “queen of evidence” has indeed lost its sheen, and a spotlight has been directed at the concern that innocent people may be convicted. It remains my opinion that the confession has a place of honour in the hierarchy of evidence in criminal law, and it is an important and accepted tool in those cases where the court is persuaded that the confession is a true one. I also reject the approach that, as a premise, every confession contains an inherent “defect” (as Justice Strasberg-Cohen describes the approach of Justice Dorner in El Abeid v. State of Israel [29], at p. 854, an approach that she did not accept) of being a false confession and inherently suspect evidence, since it is prima facie tainted with irrationality’ (CrimA 6679/04 Steckler v. State of Israel [30], at p. 1664).

6.    This position is mainly based on experience that teaches us that a voluntary confession made by a defendant during his interrogation with regard to an offence that he did not commit is the exception and not the rule, and that although it cannot be said that there are no cases in which people confess to deeds that they have not committed, when confessions are not the result of improper means that were used to obtain them, usually people confess to deeds that they have committed rather than deeds that they have not committed (see El Abeid v. State of Israel [29], per Justice Or at p. 819, per Justice Strasberg-Cohen at p. 856, per Justice Mazza at p. 857 and per President Barak at p. 865). The remarks of Justice Cheshin in this regard are apt:

‘The confession of a defendant in a police interrogation has sometimes been called the “queen of evidence.” Even if it not a reigning sovereign, it is a “princess of evidence,’ one of the most important types of evidence in the kingdom. Who know this better than we, who sit in judgment on a daily basis? And we have long known also that experience and practical knowledge guide us on our path. Oliver Wendell Holmes, one of the wisest of our community — the community of legal scholars — taught us that “The life of the law has not been logic; it has been experience” (O.W. Holmes, The Common Law (Boston, 1881), at p. 1). Usually a person does not portray himself as a criminal, i.e., a person does not confess to committing a certain offence unless he has committed that offence. Wisdom teaches us that a person does not portray himself as a criminal when he is a saint. This is particularly true when we are speaking of the most serious offences, those offences that send a person to prison for many years. This is not a legal assumption. Nor is it an absolute presumption. It is a supposition of common sense, an assumption that is based on human nature’ (El Abeid v. State of Israel [29], at pp. 833-834).

7.    Moreover, experience also teaches us that there are weighty reasons for making a confession that is not a false confession. These reasons were described, albeit not in full, by Justice Or in that case:

‘A weighty reason is the basic emotional need of someone who committed an offence to divest himself of the burdensome feeling of guilt that he can no longer carry inside him. Another possible reason is the rational recognition of someone suspected of an offence — for example, when there is other evidence such as testimony against him or physical evidence — that his failure to cooperate may not help prevent him from being brought to trial, whereas cooperation with the authorities may result in a certain credit being given to him at a later date, such as at the sentencing stage. And I have not mentioned all of the reasons’ (ibid. [29], at p. 819).

8.    Although false confessions are an exception to the rule, the legal system has long recognized that various pressures will lead a defendant to confess to an offence that he did not commit, ‘in the sense of “committing suicide” in his confession’ (CrimA 48/54 Irshid v. Attorney-General [21], at p. 691):

‘There are two concerns that relate to a confession that a defendant made out of court: one is the concern that “external” pressure was exerted on the defendant and this led him to confess to committing an act that he did not do. This pressure is addressed by the statutory barrier of admissibility, which is provided in s. 12 of the Evidence Ordinance [New Version] and which renders inadmissible any evidence that was not given “freely and willingly.” The other concern is that the defendant acted as a result of “internal” pressure that led him to take responsibility for committing an act that he did not do at all, thus causing him to “commit suicide in the confession” (Irshid v. Attorney-General [21], at p. 691). There is no admissibility barrier that guards against this internal pressure, but the court will examine this possibility when considering the weight that it will give the confession’ (CrimA 715/78 Levy v. State of Israel [23], at p. 234).

With regard to the concern that ‘internal’ pressure may lead the defendant to make a false confession, I will cite the remarks of Justice Goldberg, who said that even if improper pressures were not exerted on the defendant during his interrogation, thereby rendering the confession inadmissible, there is still a concern that his confession is false:

‘The court should still be concerned that other factors may have led the person making the confession to “commit suicide in the confession.” This “committing suicide” may be conscious (such as the desire to protect someone else, or the desire to bring about the end of the interrogation because of internal psychological pressure) or unconscious (because the person under interrogation believes his confession is true because of emotional defects and a distorted perception of reality). With regard to “committing suicide in a confession” the rabbis said (against the background of the principle of Jewish law that a person cannot incriminate himself) that:

“… the Sanhedrin does not pass a capital or corporal sentence on someone who confesses to an offence, in case he is mentally disturbed in this matter. Perhaps he is one of those troubled depressed persons that look forward to death, who stick knives in themselves and throw themselves from the rooftops. Perhaps in this way he will come and say something that he did not do, so that he will be killed…” (Maimonides, Hilechot Sanhedrin, 18, 6)’ (CrimA 4769/92 Nijam v. State of Israel [37], at p. 2186).

9.    This fear of false confessions has led to the creation of ‘barriers and brakes’ for examining the admissibility and weight of confessions (in the words of President Barak in El Abeid v. State of Israel [29], at p. 865). These ‘barriers and brakes’ include the rule that a person may not be convicted solely on the basis of a confession that he made out of court, even when it was made lawfully without any external pressure (see for example CrimA 290/59 A v. Attorney-General [32], at p. 1495; CrimA 556/80 Ali v. State of Israel [18], at p. 184). It would seem that the aspiration to create a ‘barrier’ against the danger of a false confession for motives that are hidden in the soul of the person making the confession (to use the expression of Justice Landau in A v. Attorney-General [32]) is what led to the development of the requirement of ‘something extra’ in the case law of this court, which also constitutes a main and important ‘brake’ against false convictions. This requirement is intended to protect the defendant from being convicted on the basis of a false confession that he made during his interrogation, but no less importantly it aims to help the court arrive at the truth, and therefore it constitutes a means of protecting society as a whole from the conviction of innocent persons and the acquittal of guilty ones.

10. These remarks form the background for deciding the question that arises in the current appeal. As we have said, deciding this question is a result of a balance between values. Our journey begins with the provisions of s. 162 of the law, which constitutes the normative framework for examining the question, and it is on this basis that we must formulate the proper legal policy on this issue. Let us therefore turn to consider the questions that require a decision.

The normative framework — s. 162 of the law as a legal source for regarding silence as ‘something extra’

11. As I have said, the legal framework for examining the issue is s. 162 of the Criminal Procedure Law. For the sake of completeness, I will cite the section as it was amended in 2006:

‘Silence of the defendant

162. (a) A refusal of the defendant to testify may serve as support for the weight of the prosecution’s evidence and as corroboration for the prosecution’s evidence where it requires corroboration, but it shall not serve as corroboration for the purpose of section 11 of the Rules of Evidence Amendment (Protection of Children) Law, 5715-1955, or for the purpose of section 20(d) of the Interrogation Procedures and Testimony of Persons with Disabilities Law.

 

(b) A refusal of the defendant to testify shall not serve as evidence against him if an expert opinion is received to the effect that the defendant is a person with a mental disability or a person with an emotional disability as defined in the Interrogation Procedures and Testimony of Persons with Disabilities Law, and because of his aforesaid disability he is refusing to testify.’

It can be seen that subject to the exceptions listed expressly in it, the section clearly provides that the silence of a defendant in his trial has probative significance, i.e., it may constitute ‘support’ for the weight of evidence brought by the prosecution and ‘corroboration’ for this evidence. Is it right and proper to interpret the section as allowing the silence of a defendant to be regarded not only as ‘corroboration’ and ‘support,’ as the section states, but also as ‘something extra’ for the purpose of convicting him on the basis of his confession during interrogation, even though the provision does not expressly relate to this probative requirement? This is the first question that we should address.

12. My colleague Justice Levy is of the opinion that the interpretation adopted by the courts martial according to which, since a defendant’s silence can satisfy the requirement of corroboration, it can certainly also constitute ‘something extra’ for the confession of a defendant, is not free from doubt. According to him, if this was indeed the position of the legislature, it is surprising that it chose not to state this expressly in the section, especially in view of the fact that when this provision was added to the law, the requirement of ‘something extra’ already existed. From this my colleague infers that the answer to the question before us cannot be derived from the provisions of s. 162 of the law alone or from the technical definitions that were given to the terms ‘support’ and ‘corroboration’ in this section (para. 22 of his opinion).

13. My opinion is that even if the decision in this matter cannot be derived solely from the narrow interpretation of s. 162 of the law, the position that the silence of a defendant can also be regarded as ‘something extra,’ and thereby act against the defendant, should be based on some statutory source, and therefore this interpretive question cannot be left without an express decision. On its merits, a reading of the provisions of s. 162 and the interpretation of the provision from literal and purposive viewpoints show that it is possible to apply the section also to the probative requirement of ‘something extra,’ and therefore the section may be a statutory source for regarding the silence of the defendant in his trial as ‘something extra’ for a confession that he made out of court, as argued by the respondents. As I shall show later, my position is based on reasons arising from the literal interpretation of the section, as well as reasons concerning its legislative purposes and legislative history and reasons arising from the nature of the probative requirement of ‘something extra’ in comparison to the probative requirements of ‘corroboration’ and ‘support.’

On the purpose of s. 162 of the law

14. The enactment of s. 162 in 1976 was the result of a recommendation of the Public Commission for Criminal Procedure chaired by Justice M. Landau. The background to the legislation was the rise in scope and level of crime in Israeli society and the outlook that the legal system should be given stronger and more effective tools than in the past in order to deal with the rise in crime (Knesset Proceedings 71, 2115 (1974); 73, 2888 (1975)). The legislation process was accompanied by fierce debates among members of the Knesset, particularly because of the concern of a violation of the right to remain silent and the presumption of defendants’ innocence, but ultimately the section was passed despite the objections. It should be noted that whereas in the original wording of the section, as presented in the draft law by the government, it was proposed to regard the refusal of a defendant to testify solely as ‘corroboration,’ in the final wording, as it remains until today, it was stated that this refusal could also constitute ‘support for the weight of the prosecution’s evidence,’ for the purpose of ‘strengthening the section’ and not limiting it solely to cases where statute, from a technical perspective, requires a probative addition of ‘corroboration’ (see the remarks of Knesset Member A. Ankorin, Knesset Proceedings 77, 3506 (1976)).

The explanatory notes to the government draft law contain the following:

‘According to the consistent rulings of the courts, the silence of the defendant is not in itself evidence against him, nor can it serve as a substitute for prosecution evidence nor can it serve as grounds for his conviction…

This leads to the conclusion that the defendant’s silence cannot serve as a substitute for evidence that is required in certain circumstances (for example as support for the testimony of someone involved in an offence… or as support for a confession made to the police, and it certainly cannot serve as a substitute for proving corroboration when it is needed, such as in sex offences or to support the testimony of an accomplice in crime…).

The proposed section is intended to introduce a law that allows the refusal of a defendant to testify to be regarded as actual corroboration where it is needed; in other words, it allows the silence to be given a positive value. This is in fact a means of encouraging defendants to speak in the court, in order to prevent miscarriages of justice that may arise from the acquittal of defendants (sic!) no less than from the conviction of the innocent. It should be remembered that we are speaking about the stage after the prosecution evidence, i.e., when the facts already indicate that the defendant is involved in the criminal act, where common sense and experience tip the scales against the defendant who insists on the right to remain silent. However, it is not proposed that silence should constitute automatic corroboration, and the matter is left to the discretion of the court’ (Explanatory notes to the draft Criminal Procedure Law (Amendment no. 5), 5734-1974, Draft Laws 1103, 84, at p. 87).

It can thus be seen that the section under discussion was intended to reduce the likelihood of acquitting guilty defendants, by giving a positive value to silence and encouraging defendants to tell their version of events to the court.

In my opinion, even if the probative requirement of ‘something extra’ was not considered by the legislature when it enacted the section, a reading of the minutes of the debates in the Knesset at the various stages of the legislation shows that it can also not be inferred that there was an intention to distinguish between the probative requirements of ‘support’ and ‘corroboration,’ which are enshrined in the section, and the probative requirement of ‘something extra’ that was not included in it but was recognized by case law at that time. In my opinion, the purpose of the section, as it arises from the explanatory notes, is valid even when the probative addition required for a conviction is ‘something extra,’ since even when the only evidence against the defendant is his own confession, after which he denied the charges, there is a clear need to encourage him to testify before the court, so that the evidence on which the court bases its verdict as to his innocence or guilt is as complete as possible.

15. From the remarks of my colleague Justice Levy it may be inferred that the fact that the legislature did not expressly address the probative requirement of ‘something extra’ implies a ‘negative arrangement,’ since had the legislature wanted to regard the silence of a defendant also as ‘something extra,’ it may be assumed that it would have said this expressly in s. 162 of the law (para. 22 of his opinion). It is possible to disagree with this argument: first, the requirement of ‘something extra’ is, it will be remembered, the product of case law, and it is not enshrined in statute (see CrimA 3/49 Andelersky v. Attorney-General [31], at pp. 592-593, in which the requirement was introduced, and which this court has affirmed on countless occasions). For this reason it is doubtful whether it is right to attribute far-reaching significance to the fact that the legislature did not address this probative requirement expressly. Second, originally it was accepted that the meaning of the concept of ‘support’ was identical to the meaning of the concept ‘something extra,’ in view of the clear recognition that it was not a requirement of ‘corroboration’ but a lesser requirement, in a desire to refrain from creating an additional term that would necessitate making fine distinctions between it and the term similar to it (Y. Kedmi, On Evidence (first part, 2003), at p. 297; cf. also CrimA 735/80 Cohen v. State of Israel [50], at p. 99).

16. In this context, it is interesting to refer to remarks that were uttered during the debates in the Knesset before the enactment of the Evidence Ordinance Amendment Law (no. 6), 5742-1982, in which the requirement for ‘support’ was introduced for the conviction of a person on the basis of the testimony of an accomplice (s. 54A(a) of the Evidence Ordinance). When presenting the proposed amendment to the law, the Minister of Justice at the time, M. Nissim, said the following:

‘The guideline for the degree of caution required will from now on be given in the requirement of “something to support the testimony.” This is a requirement that corresponds to the requirement of ‘something extra’ as formulated in case law [emphasis supplied]. The purpose of the requirement of “something extra” is to direct the attention of the judge to the danger of a conviction on the basis of the sole testimony before him, and to caution him to ascertain, with the aid of a probative addition that is small from the viewpoint of its nature, quantity and quality, that the testimony under consideration is true. The addition to the testimony may arise either from the testimony itself or from other evidence, provided that it persuades the judge of the credibility of the testimony being supported’ (Knesset Proceedings 90, 309 (1981)).

It should be noted that, like s. 162 of the Criminal Procedure Law, the aforesaid s. 54A(a) of the Evidence Ordinance was enacted as a result of a recommendation of the Public Commission for Criminal Procedure, and it is interesting to note that its proposal in this regard was to cancel the requirement of ‘corroboration’ for the testimony of an accomplice, and to replace it with the requirement of ‘something extra.’ As is well known, ultimately the section was amended so that the requirement of ‘corroboration’ was replaced by the requirement of ‘support’ (see the explanatory notes to the draft Evidence Ordinance Amendment Law (no. 6), 5740-1980 (Draft Laws 1477, 397; CrimA 6147/92 State of Israel v. Cohen [51], at p. 69). It would appear that these events can indicate a relative conceptual kinship between the two terms (‘something extra’ and ‘support’), and in practice, despite the distinctions that exist between the two aforesaid probative requirements, sometimes that have been mentioned by case law ‘in one breath,’ as if they were an identical requirement (Kedmi, On Evidence, supra, at p. 360; cf. CrimA 190/82 Marcus v. State of Israel [52], at p. 294; CrimA 1242/97 Greenberg v. State of Israel [53], at p. 91). It follows that although s. 162 was added to the Criminal Procedure Law when the rule concerning the requirement of ‘something extra’ already existed, in my opinion we should not infer from the fact that there is no express mention of this probative requirement that the legislature intended s. 162 not to apply to it.

The nature of the various probative requirements — ‘corroboration,’ ‘support’ and ‘something extra’

17. The aforesaid interpretation of s. 162 of the law is also required, in my opinion, by an analysis of the substance of the section, of the nature of the probative requirement of ‘something extra’ and the relationship between it and the other probative requirements. In my opinion, the fact that the legislature determined in this provision of statute that a failure of a defendant to testify may act as ‘support’ or ‘corroboration’ implies necessarily that it may also serve as ‘something extra.’ This position of mine derives from the qualitative and quantitative ‘hierarchy’ that exists between these probative requirements, as they have been shaped and formulated in legislation and case law, where the probative requirement of ‘something extra’ stands at the bottom of the hierarchy, so that it is included and incorporated in the other probative requirements.

Before I begin to discuss this matter thoroughly, we should restate, in a nutshell, the basic principles concerning the various probative requirements.

18. The requirement that additional evidence should be produced for certain incriminating evidence, as a condition for convicting a defendant of a criminal offence, is found in the Israeli legal system in the form of three different concepts: ‘corroboration,’ ‘support’ and ‘something extra.’

In cases where additional evidence is required in the form of ‘corroboration,’ the intention is that we require evidence that ‘implicates’ (or tends to implicate) the defendant in the commission of the offence that is attributed to him. Inter alia, ‘corroboration’ is required for the testimony of a state’s witness who incriminates the defendant and the testimony of a minor who is the complainant in an indictment involving a sex offence and whose testimony is brought before the court through a child interrogator. In these cases, the corroboration evidence should be ‘independent evidence that points to the involvement of the defendant in the offence’ (CrimA 238/89 Askapur v. State of Israel [54], at p. 411; CrimA 378/74 Messer v. State of Israel [55], at pp. 695-698; CrimA 85/80 Katashvili v. State of Israel [56], at pp. 68-71). In view of this, it has been held that for a certain piece of evidence to constitute ‘corroboration,’ it should satisfy three cumulative requirements: it should have a separate and independent origin to the testimony that requires corroboration; it should ‘implicate’ the defendant in the commission of the act that is the subject of the indictment; and it should relate to a significant point that is the subject of dispute between the parties (see, for example, CrimA 387/83 State of Israel v. Yehudai [41], at p. 203). The reason for these strict requirements is the need to ensure the truth of the statements made by a witness against the defendant and to dispel the concern that perhaps he is making up an untrue story about the defendant, where experience shows that the testimony may lack credibility and therefore it cannot serve on its own as a basis for convicting a defendant (CrimA 290/59 A v. Attorney-General [32]; CrimA 389/73 Ben-Lulu v. State of Israel [57], at p. 492; CrimA 169/74 Kadouri v. State of Israel [58], at p. 403; CrimA 5544/91 Moyal v. State of Israel [59], at p. 1357; CrimA 6147/92 State of Israel v. Cohen [51], at p. 72; Kedmi, On Evidence, supra, at p. 126).

19. Unlike ‘corroboration,’ the requirement of additional evidence of the type known as ‘support’ is a requirement of ‘authenticating’ evidence: ‘the requirement of support is satisfied if the support adds a degree of truth to the witness’s statement, and it does not need to “implicate” the defendant in the criminal act’ (CrimA 241/87 Cohen v. State of Israel [60], at p. 746; Kedmi, On Evidence, supra, at p. 298). Inter alia, ‘support’ is required for the testimony of an accomplice (s. 54A(a) of the Evidence Ordinance), and for a statement made to the police by a witness who later gives contradictory testimony in court, when the statement is admitted as evidence (s. 10A(d) of the Evidence Ordinance). ‘Support’ is ‘intended to indicate that the witness’s testimony, when taken on its own, is credible. Therefore there is no requirement that the support should relate to the offence or the criminal conspiracy between the defendant and the witness-accomplice’ (Askapur v. State of Israel [54], at p. 411). Like the requirement of ‘corroboration,’ ‘support’ is needed because of the concern that the witness gave false testimony that implicates the defendant, and therefore evidence is required to strengthen the credibility and reliability of this testimony (CrimA 6147/92 State of Israel v. Cohen [51], at p. 80).

20. Last, the requirement of ‘something extra’ is, like ‘support’ and unlike ‘corroboration,’ a requirement of additional ‘authenticating’ evidence. Therefore, unlike ‘corroboration,’ the ‘something extra’ does not need to indicate the guilt of the defendant; any direct or circumstantial evidence that is external to the defendant’s confession and that can confirm to some degree the content of the confession and indicate its truthfulness is sufficient (CrimA 290/59 A v. Attorney-General [32], at p. 1499; CrimA 6936/94 Awad v. State of Israel [61], at p. 848). The requirement of ‘something extra’ is intended to remove the concern that the defendant is taking responsibility for an act that was done by someone else or that was not done at all, and therefore, in principle, very little evidence is required to satisfy it (CrimA 6147/92 State of Israel v. Cohen [51], at p. 72). Consequently case law has pointed out on more than one occasion that this evidence ‘can be very small indeed’ (CrimA 178/65 Usha v. Attorney-General [35], at p. 156), and even ‘as light as a feather’ (El Abeid v. State of Israel [29], at p. 834). It is sufficient that the court is satisfied that the confession is not ‘merely a fabrication,’ and that it is persuaded that the version of events told by the defendant in his confession is indeed a possible one (CrimA 312/73 Matzrawa v. State of Israel [62], at p. 809).

21. These differences, both in terminology and in substance, between the three probative requirements have led to the creation of a kind of ‘hierarchy’ between them. This hierarchy is based on the assumption that, as a rule, ‘a person does not portray himself as a criminal’ (El Abeid v. State of Israel [29], at p. 833). It follows that most confessions are true confessions, whereas it is a more reasonable possibility that someone else who testifies against the defendant will present false testimony, for various reasons such as anger, jealousy, a desire to prevent himself from being found responsible or to protect a third party, a desire to obtain some benefit, etc.. In other words, the need for additional evidence for a defendant’s confession to dispel the fear that his confession may be false is smaller than the need for additional evidence that is required for the testimony of someone else against the defendant, and therefore ‘corroboration’ and ‘support’ should satisfy stricter criteria than ‘something extra.’ In this vein, it was said in one case with regard to evidence that satisfied the requirement of ‘something extra’ that ‘it is therefore accepted that this kind of evidence should be regarded as “lower” on the ladder of “secondary” evidence (“corroboration” and “support”)’ (Nijam v. State of Israel [37], at p. 2186). The aforesaid hierarchy has been clearly expressed in the case law of this court, which has repeatedly held over the years that various kinds of evidence that may serve as ‘corroboration’ automatically satisfy the requirements of ‘support’ and ‘something extra.’ Thus, for example, Justice H. Cohn said that:

‘The aforesaid statements of the deceased could have served as corroboration for the appellants’ confessions, had there been a need for any real corroborating evidence. The argument is an a fortiori one: if these statements could have constituted actual corroboration for the appellants’ confessions, they certainly constitute “something extra” for the confessions’ (CrimA 399/72 Menahem v. State of Israel [63]).

In another case Justice Or said that ‘If such corroboration is found, this corroboration will also automatically satisfy the requirement of support for a witness’s statement, on which the court relies by virtue of the provisions of s. 10A of the Ordinance, since what satisfies the greater requirement also satisfies the lesser requirement’ (CrimA 450/82 Tripi v. State of Israel [64], at p. 597, and similar remarks were made by President Shamgar: ‘If the testimony of the accomplice could have served as corroboration, whose weight and scope are broader than evidence that constitutes “support”… and “something extra,” it is obvious that such testimony could also serve as support’ (Askapur v. State of Israel [54]; see also CrimA 282/75 Karki v. State of Israel [65]; CrimA 34/78 Algul v. State of Israel [66]; CrimA 949/80 Shuhami v. State of Israel [67], at p. 72; CrimA 146/81 Al-Sena v. State of Israel [68], at p. 503; CrimA 777/80 Beinashvili v. State of Israel [69], at p. 472; CrimA 533/82 Zakkai v. State of Israel [70], at p. 73).

To summarize the law in this matter, Kedmi says that:

‘Evidence that is capable of serving as “corroboration,” where such additional evidence is required (i.e., additional “implicating” evidence), can also serve as “something extra,” since the greater requirement includes the lesser one: if it is capable of “implicating” the person making the confession, it can certainly “authenticate” his confession.’

And with regard to the relationship between ‘corroboration’ and ‘support,’ Kedmi says that:

‘Evidence that can serve as corroboration will satisfy the requirement of “support”.’

(Kedmi, On Evidence, supra, at pp. 141, 303).

This is also true in my opinion with regard to the relationship between ‘support’ and ‘something extra.’ Just as the support that is required does not need to amount to actual corroboration in its character and weight (Shuhami v. State of Israel [67], at p. 72), so too ‘something extra’ does not need to amount to actual support in its character and weight (in this matter, see the different position of Kedmi, On Evidence, supra, at pp. 184, 203, 297-298).

22. In our case, with regard to the probative significance that can be attributed to the silence of the defendant in his trial, I do not think that it would be right to determine that the aforesaid hierarchy does not apply. Given that the defendant’s silence can provide support for the testimonies of others against him and can constitute corroboration when it is required, I do not think that we should hold that it cannot support his confession or corroborate it, or at the very least, serve as ‘something extra,’ when it is needed. The reason for this is that, as a rule, it is easier for a person to refute or explain his own confession than to refute an accusation levelled at him by someone else (see and cf. E. Kamar, ‘Corroborating Confessions by the Defendant’s Own Statements,’ 5 Israel Journal of Criminal Justice (Plilim) 277 (1996), at p. 292, who agrees with this solely on a prima facie basis).

23. My colleague Justice Levy pointed to the fact that in cases where the legislature allowed the defendant’s silence to be regarded as ‘support’ and ‘corroboration’ for the prosecution evidence, the silence is an addition to testimonies that do not originate with the defendant (the testimony of a state’s witness, the testimony of an accomplice, etc.), whereas when we are speaking of a confession of the defendant, the silence is an addition to testimony that he himself gave in the interrogation. In such circumstances, Justice Levy believes that the silence cannot authenticate the confession to the required degree (para. 23 of his opinion). I am not persuaded that this conclusion is necessary. I discussed above the distinctions that exist between the various probative requirements. These distinctions are valid. But I do not think that they, together with the aforesaid argument that was raised by my colleague, lead to the conclusion that a defendant’s silence in his trial cannot serve as ‘something extra.’ According to the rule that has been formulated in the case law of this court, there is nothing to prevent the source of the ‘something extra’ being the defendant himself. Thus, various evidence that originates with the defendant, such as the defendant’s incriminating conduct, his lies on major issues, a confession of the defendant to major issues during his testimony in court and statements that he made before a judge during arrest proceedings have all been recognized as satisfying the requirement of ‘something extra’ (see, for example, Matzrawa v. State of Israel [62], at p. 809; CrimA 788/77 Bader v. State of Israel [71], at p. 831; CrimA 6289/94 Janshvili v. State of Israel [22], at pp. 171 and 176; CrimA 5825/97 Shalom v. State of Israel [72], at p. 958; CrimA 6613/99 Smirk v. State of Israel [73], at pp. 557-559; Kedmi, On Evidence, supra, at p. 129). I am not persuaded that there is a sufficiently strong reason for determining a different rule for the defendant’s silence.

24. In view of all of the aforesaid, my position is that on the basis of s. 162 of the law, a refusal of a defendant to testify can also satisfy the requirement of ‘something extra’ for a confession made by him out of court. Admittedly this is not evidence that is ‘external’ to the defendant, as some authorities think it should be (see, for example, Kamar, ‘Corroborating Confessions by the Defendant’s Own Statements,’ supra, at p. 280), but we are speaking of additional evidence that is ‘external’ to the confession, and in my opinion it is capable of authenticating, to the required degree, the defendant’s confession to the acts attributed to him. Therefore, in accordance with the stipulation of the legislature and in accordance with the rule in force today as I have explained it, it is sufficient. Although I do not take lightly the various concerns raised by my colleague, as well as the basic right of a defendant to a proper and fair trial, it would not be right in my opinion to derive from these a normative conclusion by means of a strict interpretation that is not required by the wording or the purpose of the statute.

25. The fact that there is a legal basis for regarding the refusal of a defendant to testify as ‘something extra’ for his confession during the interrogation does not mean that this should be adopted as a legal policy. From the wording of s. 162 of the law it can be clearly seen that the legislature left the court with discretion as to whether to regard the refusal of a defendant to testify as having the aforesaid probative significance and whether to give it any weight. How should this discretion be exercised? Is it desirable that the silence of a defendant in his trial should serve as ‘something extra’ for his confession, and in what circumstances? What, then, is the proper judicial policy that should be adopted in this matter?

The proposed legal policy — the rule

26.  My colleague Justice Levy described in his opinion important reasons why he believes that the silence of a defendant should not be regarded as ‘something extra’ for his confession, unless the conditions that he stated in his opinion are satisfied, namely a video recording of the interrogation and the impression of the court that the confession is a true confession. As I have already explained, I agree with my colleague with regard to the rule, but with regard to the exception, which I shall discuss below, in my opinion the trial court should be given a greater margin of discretion than that proposed by my colleague.

I propose therefore that as a rule the silence of the defendant should not constitute ‘something extra.’ There are several reasons for this. First and foremost, my position is based on the basic aspiration of the legal system to arrive at the truth and on the innate fear of convicting an innocent person of a crime on the basis of a false confession that he made. Even though, as we have said, false confessions are the exception to the rule, we must be wary of them. We should mould our legal system in a manner that will restrict to the absolute minimum the possibility that they will be used to convict an innocent person.

My colleague mentioned in his opinion three categories of factors that cause a person under internal pressure to make a false confession, just as these were enumerated in the Goldberg Commission Report (at pp. 8-10). The reasons that may lead a certain defendant to make a false confession are many and varied. Some of them will always remain somewhat unclear. This difficulty is no less relevant, and maybe even more relevant, to the silence of a defendant in his trial. This silence appears contrary to logic and common sense that tell us that an innocent person should not only be prepared to tell his version of events in court, but he should eagerly await the possibility of entering the witness box to refute the suspicions against him and to clear his name, and that a defendant who decides to remain silent is not prepared to tell his version of events or to be cross-examined on the version of events that he told in the interrogation (see, for example, CrimA 196/85 Silberberg v. State of Israel [12], at p. 525).

Reality, it would appear, is sometimes different. In practice we cannot rule out the possibility that there are cases where a defendant in his interrogation will take responsibility for committing an offence that he did not commit, but later he will deny the charges, even though he chooses not to testify in his own defence. The attorney-general also recognizes this possibility and he said in his response that experience shows that there are persons who make false confessions out of court (not necessarily because improper pressure was exerted on them by the police) and that some of them — even after they have denied the charges — may during their trial choose the right of silence. According to him, even though it is possible that someone who made a false confession out of court will act consistently and repeat his confession when he enters the witness stand, it is not possible, a priori, to rule out the possibility that he will not do this but will choose to remain silent (paras. 42-44 of the attorney-general’s arguments).

27. In a situation such as this, where there is an innate difficulty in understanding the motive for false confessions, as well as the motive for refusing to testify, I agree with my colleague’s position that there are grounds for concern that relying on the defendant’s silence as ‘something extra’ for his confessions may undermine the purpose that led to the requirement of ‘something extra’ in the first place, namely the desire to authenticate the defendant’s confession (para. 23 of my colleague’s opinion). Notwithstanding the probative significance that it is possible to attribute to silence, it on its own is limited in its ability to dispel the uncertainty and to provide the court with the explanations that it lacks. When the defendant refuses to talk, it is not possible to cross-examine him in order to discover the truth of what was recorded in his confession at the police station, and therefore there is a difficulty in bridging the gap between his confession in the interrogation and his denial of the charges. Moreover, just as there is a certain conceptual difficulty in saying that lies uttered by the defendant are a guarantee that his confession is not a false confession, when it is the only evidence against him (El Abeid v. State of Israel [29], at p. 721), attributing probative significance to the defendant’s silence may in my opinion suffer from a similar difficulty. For who can guarantee that those lies, or that silence, actually imply a feeling of guilt and are not the result of the same motive that led the defendant to make a false confession. Therefore, just as the court is required to take great care not to err in convicting an innocent person by relying on his lies, it is required a fortiori to take great care not to err in convicting an innocent person by relying solely on his silence as ‘something extra’ for his confession. This caution requires us, in my opinion, to adopt a judicial policy whereby relying on the silence of a defendant as ‘something extra’ for his confession will be done in exceptional cases only.

28. Moreover, an additional reason to refrain, as a rule, from regarding the silence of the defendant in the court as ‘something extra’ for his confession to the police arises from the significant concern that the investigation and prosecution authorities should not be given a ‘green light’ to regard a confession on its own as sufficient for the purpose of filing indictments. This may deprive these authorities of any incentive to try and locate additional evidence apart from the confession, and thereby undermine the basic interest of clarifying and discovering the truth. The attorney-general’s guideline no. 53.000 of 1970 provides, admittedly, that as a rule an indictment should not be filed on the basis of confessions made out of court without there being ‘something extra’ in the evidence that was accumulated in the investigation to authenticate those confessions, and that it may only be done in exceptional cases with the approval of the state attorney or the chief military prosecutor. I believe, however, that when formulating the proper policy on this issue and in order to ensure an additional aspect of the defendant’s right to a fair trial, it is important to encourage the prosecution to act in order to obtain as much evidence as possible against the defendant, apart from his confession, and where possible to base the indictment on a body of evidence that is comprehensive and solid.

29. Finally, and more indirectly, my position is also based on the importance that I attach to preventing the right to remain silent and the presumption of defendants’ innocence from being undermined to a greater extent than what the legislature has expressly recognized in s. 162 of the law. In his arguments counsel for the appellant emphasized that the question that arises in our case, despite its technical appearance as simply a question of evidence, has constitutional importance, since it lies at the crossroads between two constitutional rights: the right of defendants to remain silent and the presumption of innocence enjoyed by every person before he has been convicted in a criminal trial, which are both regarded as basic rights. It is well known that there may be different approaches on the question of which procedural rights in criminal trials are indeed included within the scope of the constitutional right to dignity and liberty, as it is enshrined in the Basic Law: Human Dignity and Liberty, and similarly also with regard to the question of the scope of the constitutional protection that should be given to rights that are not expressly mentioned in the Basic Law (see, for example, Yissacharov v. Chief Military Prosecutor [5], at p. 1107 {351}). In view of what I regard as the clear provisions of s. 162 of the law, I do not think that there is any need for us to decide between the aforesaid approaches in the current appeal. In any case, it would appear that there can be no dispute that the aforesaid rights are relative rights and not absolute rights. This can be seen by the provisions introduced by the legislature in s. 162 (see also HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at pp. 765-766). I do not accept the argument that regarding the silence of a defendant as ‘something extra’ for his confession violates these rights beyond what the legislature has permitted in s. 162 of the law. But I am aware of the concern that was expressed by defence counsel that these rights may suffer too great a violation, beyond what was permitted by the legislature, and for this reason also I am of the opinion that this use should be made sparingly and in moderation, solely as an exception.

In view of all of the aforesaid reasons, I too am of the opinion that we should conclude that, as a rule, we should not regard the defendant’s silence as ‘something extra’ for the confession that he made in his interrogation. Notwithstanding, it would not be right in my opinion to determine on this issue a sweeping rule, and there is a basis for recognizing exceptions to the aforesaid rule and for granting discretion to the trial court. This legal policy is what will guarantee the proper balance between our commitment to the basic value of discovering the truth, which is based on the goal of ensuring the conviction of the guilty and the acquittal of the innocent, and our duty to protect the right of the defendant to a proper and fair trial. As I said at the beginning of my remarks, this balance is also required by the need to act forcefully against the rise in crime, in order to protect the safety and security of the public, including the victims of crime, while at the same time preserving the fairness and ethical and moral strength of society in general and the legal system in particular. The remarks of Justice Strasberg-Cohen are particularly apt in this regard:

‘The function of a civilized society is to find the proper balance between all of these in such a way that the legal system will have the proper tools that will allow the holding of a fair and efficient trial, prevent the conviction of the innocent and ensure that the guilty do not escape justice. The tools for achieving these goals within the framework of the judicial system are, inter alia, criminal procedure and the rules of evidence. It is through these that the legal system plots its course to discover the truth and to administer justice’ (Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 756).

30. In our case, following a rule that denies the trial court any discretion whatsoever with regard to the probative significance that should be attributed to the defendant’s refusal to testify and that obliges it to acquit a defendant even when it is perfectly clear to the court that his confession is a true one, solely because no external evidence was found that supports it, is likely to give the aforesaid rule of evidence precedence over the value of arriving at the truth. Such a position is undesirable. In this regard I agree with the apt and instructive remarks of my colleague, who pointed to the possibility that there may be cases in which the acquittal of the defendant for the reason that his silence does not constitute ‘something extra’ for his confession may undermine the search for the truth, as well as the fight against crime and protecting the public from it (para. 25 of his opinion). In this regard it is not superfluous to mention that —

‘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 [5], at p. 1124 {383}).

To summarize what we have said so far: my position is that although s. 162 of the law makes it possible to regard silence as ‘something extra,’ as a matter of policy we should not, as a rule, give the silence of the defendant the aforesaid probative significance. This significance will be given to silence only in limited cases, which will constitute the exception rather than the rule. Within the scope of this exception, it is important to give the court discretion in accordance with the circumstances of each case and in accordance with the guidelines that we will set out below.

The proposed legal policy — the exceptions to the rule

31. It will be remembered that the position of my colleague on this matter is that the court should be allowed to regard the silence of the defendant as ‘something extra’ only in cases where a video recording was made of the interrogation and the court that saw the recording obtained the impression that it has before it a true confession. The centre of gravity of the disagreement between me and my colleague revolves around these exceptions. I agree with my colleague that the decision concerning the significance that should be attributed to the silence of a defendant is a matter for the trial court to decide according to the special circumstances of the case before it and in accordance with its discretion (para. 26 of his opinion). But it is precisely for this reason that I am of the opinion that the court should be given a broader margin for exercising its discretion than the one that my colleague is prepared to recognize, and that the exercising of this discretion should not be conditional upon making a video recording of the interrogation.

32. Confessions for which a video recording is made, which my colleague requires as a basis for the exception proposed by him, do of course have a clear advantage that cannot be disputed. A video recording allows the court to form a better impression of the defendant’s interrogation and of the circumstances in which his confession was made, and also to form an impression as to whether his confession was made because of pressures that he was under as a result of the conditions of the interrogation or the arrest. But it seems to me that it would not be right to give too much weight, and certainly not exclusive weight, to the fact that a video recording of the interrogation was made. We should be aware of the possibility that even when the court has a video recording of the interrogation, there is still a possibility that various factors that may have led the defendant to make a false confession were not necessarily expressed in this video recording. Therefore we should take into account that there may be cases in which the fact that a video recording of an interrogation was made will not necessarily be sufficient for the court to regard his silence as ‘something extra’ for his confession (see also what my colleague said in para. 26 of his opinion), and also that there may be cases in which, despite the lack of such a recording, the refusal of the defendant to testify may satisfy the requirement of ‘something extra,’ all of which at the discretion of the court that formed an impression of the confession and the circumstances in which it was made in the specific case that is before it.

33. In my opinion, the court should be allowed this judicial discretion in every case on its merits and in accordance with its circumstances. Notwithstanding, it should be exercised in moderation and with care, in a limited number of cases, and in accordance with the following three criteria, which result from everything that I have said in my opinion thus far:

First, an essential condition for regarding the refusal of the defendant to testify as ‘something extra’ for his confession is that the confession itself is of very great internal weight, so that the court is persuaded that it is a ‘confession that stands on its own in view of its independent weight’ (Levy v. State of Israel [23], at p. 234). It will be remembered that the internal test of a confession ‘examines the confession in accordance with the indications of truth that it reveals, such as its logic or lack of internal logic, the clarity or confusion of the details contained in it and other similar common sense indications that lead a rational person to trust what someone says’ (ibid. [23]). This test considers the content of the confession, and it seeks, on the basis of logic and common sense, to find indications of truth in it, which can be seen from the wording of the confession, the sequence of events, the amount of detail, its internal reasonableness and other such tests (FH 3081/91 Kozali v. State of Israel [26], at p. 458; on the importance of the amount of detail in a confession, see also El Abeid v. State of Israel [29], at p. 771). There is a rule in our case law that the greater the independent weight of the confession, as determined by the indications of truth that can be seen in it, the smaller the need for resorting to the external test of ‘something extra’ (Levy v. State of Israel [23], at p. 234; El Abeid v. State of Israel [29], at p. 795). As a rule, the silence of a defendant is not in itself evidence of great weight. Therefore, in view of the reciprocal relationship that exists between the internal weight of the confession and its external weight (Steckler v. State of Israel [30], at p. 1665), the refusal of a defendant to testify may constitute ‘something extra’ for his confession only in those cases where the court is persuaded, according to the internal test of the confession, that it is a true confession, i.e., when the confession before it is a detailed, coherent and persuasive confession from the viewpoint of its nature, its internal logic and the indications of truth that can be seen in it.

Second, an additional condition that is required in order to make use of the defendant’s silence as ‘something extra’ concerns the ability of the court, on the basis of all the external circumstances of the confession, to rule out — to the required degree of certainty — the possibility that the defendant acted as a result of ‘internal’ pressure that led him to take responsibility for committing an act that he did not do or that was not done at all. In this context, the court should consider the various reasons that may lead a defendant to confess to committing an offence that he did not commit, as set out in the Goldberg Commission report, and it should ask itself whether all reasonable doubt has been removed as to whether one of these reasons exists in the case before it. Thus, for example, it should examine whether there are grounds for a concern that the defendant’s confession was the result of social or other pressures that influenced him. This matter requires a detailed examination especially when we are dealing with an offence that was committed by several accomplices, when we are dealing with a defendant who belongs to a criminal organization, or when the circumstances of the case show a possibility that the confession was made out of a desire not to incriminate someone else, such as a family member. In addition, the court should consider whether to rule out the possibility that the defendant is a member of one of the ‘risk groups’ that give rise to a greater concern that internal pressure may cause them to confess to committing acts that they did not do, such as someone who is mentally disabled (Levy v. State of Israel [23], at p. 235) or intoxicated (Steckler v. State of Israel [30], at pp. 1664-1665). It is well known that in cases such as these there is greater concern that the factors that caused these defendants to confess to an act that they did not do also caused them to refuse to testify in their trial, and therefore the court should not regard the defendant’s silence as sufficient, but should examine and demand a more substantial and significant authentication of the defendant’s confession.

It should be emphasized that we are not speaking of a closed set of criteria. These are merely examples of the kinds of indications that the court should seek in order to rule out the possibility that the confession is a false one.

Last, the final criterion is actually the converse of the rule described in the second criterion. In this context, the court should ascertain that there are no indications that may show that the silence of the defendant in the court, and not merely his confession in the interrogation, is a result of any internal or external pressure; alternatively, it should examine whether there is any evidence at all with regard to a motive for the defendant’s silence and with regard to the circumstances of this silence, which, although it may not serve on their own as ‘something extra,’ allows the court to dispel the clouds of uncertainty in this matter. The court should therefore be persuaded, after considering all the circumstances of the case, that the silence of the defendant is not the result of an innocent motive, and therefore the logical conclusion is that he really does not have an answer to the charges leveled at him, to which he confessed in his interrogation.

34. When these three criteria, which are mainly intended to serve as guidelines, are all satisfied, the court may determine that the silence of the defendant in his trial may constitute the ‘something extra’ that is required for his confession. As we have said, this should be done only in exceptional cases. Because of the complexity of the issue and the large number of factors that need to be taken into account, I do not think that it is possible or proper to determine more rigid criteria with regard to the nature of the exceptional circumstances in which the court will decide that silence may constitute ‘something extra.’ The decision on this matter will be made by the trial court, which will exercise the discretion given to it by the legislature in accordance with the criteria outlined above and after considering the circumstances of each case on its merits. This discretion should be exercised sparingly, carefully, reasonably and wisely, so that the exception is not allowed to become the rule. The remarks of Justice Barak in another case are illuminating in this respect:

‘… The criminal trial should discover the truth, and this is its main goal. Of course, following rules and discovering the truth are not two conflicting goals. On the contrary, the rules are intended to determine a standard for holding a trial, which, as experience shows, can lead to the discovery of the truth, and thereby the two goals coincide. Notwithstanding, there are cases where a formal insistence on rules in a special case will result in a miscarriage of justice, whether in the form of a conviction of the innocent or the acquittal of the guilty. In these circumstances we should aspire to the goal that the rules themselves will give the court power and discretion to do justice’ (CrimA 951/80 Kanir v. State of Israel [74], at p. 516).

35. Finally, before concluding, we should mention once again the guideline of the attorney-general according to which, as a rule, an indictment should not be filed based on a defendant’s confession only, without there being ‘something extra’ in the evidence. It is to be hoped that this guideline, which applies to both the civilian and military prosecutors, will lead to a result whereby the cases in which the court will be required to decide whether to regard the silence of the defendant as ‘something extra’ for his confession will be few and far between.

From general principles to the specific case — the conviction of the appellant in this case

36. With regard to the appellant before us, I agree with the conclusion of my colleague Justice Levy, although not with his reasoning. In my opinion, without making any hard and fast determination on this matter, it would prima facie appear that this case is precisely one of those cases that may fall within the scope of those exceptional cases in which the trial court was entitled to find ‘something extra’ in the refusal of the appellant to testify. I should point out that the findings of the court martial — and like my colleague I too see no reason to depart from them — were that the appellant’s confession has great weight; his interrogation was conducted in a good atmosphere, with full cooperation on his part; no claim was raised that pressure had been exerted on him; in addition, prima facie there was no indication that the appellant’s confession, as well as his choice not to testify, were the result of any pressure to which he was subject. In any case, as I have said, this is a matter for the trial court to decide. Therefore, even though according to the different legal outlook that I have proposed it might have been proper to return the case to the court martial, so that it might reconsider and reexamine the matter in accordance with the criteria that we have outlined above, I do not propose to do this. In view of the fact that the position of the chief military prosecutor, as presented by the representative of the attorney-general, is that he no longer insists upon the appellant’s conviction, and in view of the circumstances of the case, including the fact that the offence is on the lowest level of criminal offences, the circumstances in which the offence was committed and the large period of time that has passed since the offence was committed, I too am of the opinion, like my colleague, that we should order the appellant’s acquittal.

 

 

President Emeritus A. Barak

In the difference of opinion between my colleagues, I agree with the opinion of my colleague Justice E. Arbel, for her reasons.

 

 

Appeal allowed.

23 Kislev 5767.

14 December 2006.

 

 

Berenblat v. Attorney General

Case/docket number: 
CrimA 77/64
Date Decided: 
Friday, May 22, 1964
Decision Type: 
Appellate
Abstract: 

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.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

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.

Kariti v. Attorney General

Case/docket number: 
CrimA 242/63
Date Decided: 
Tuesday, June 30, 1964
Decision Type: 
Appellate
Abstract: 

The appellant was charged on five counts of incorrect capital and income returns over some three years. One count was struck out by mutual consent. He was convicted by the Magistrate's Court on two counts and acquitted of the remaining two. On appeal to the District Court he was acquitted of a further count. Affirmation of his conviction on the remaining count was vaguely attributed to one of two years or both of them and the charge was amended accordingly and in the result the struck out count was revived. The appellant pleaded on appeal that in convicting him the District Court exceeded its powers and that capital and income returns were not admissible in evidence under the law. not having been voluntarily made.

 

Held.  In the circumstances, the District Court was not justified in amending the indictment without giving the accused the opportunity to be heard. A count which has been struck out by consent before trial cannot in any event be revived. Furthermore, conviction on separate alternative charges under one count cannot stand because of duplication and uncertainty since the accused cannot thereafter plead, if necessary, autrefois convict or acquit.

 

The requirement to make capital and income returns and other relevant information in accordance with the law does not render an admission involuntary. The confession rule must be distinguished from the privilege against self-incrimination. The test of the former goes to the means in which it was obtained. The latter rests in the "inhumanity" of placing a person in the legal dilemma of being criminated for an offence already committed or perpetrating another offence by refusing.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

Crim. A. 242/63

 

           

MICHAEL KARITI

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[June 30. 1964]

Before Berinson J., Manny J., Halevi J.

 

 

 

Incorrect returns of capital and income by reason of omissions - Duplication alternative counts - Amendment of indictment - Implied admission of offence arising out of amendment - Evidence Ordinance, 1924, sec. 9.

 

 

                The appellant was charged on five counts of incorrect capital and income returns over some three years. One count was struck out by mutual consent. He was convicted by the Magistrate's Court on two counts and acquitted of the remaining two. On appeal to the District Court he was acquitted of a further count. Affirmation of his conviction on the remaining count was vaguely attributed to one of two years or both of them and the charge was amended accordingly and in the result the struck out count was revived. The appellant pleaded on appeal that in convicting him the District Court exceeded its powers and that capital and income returns were not admissible in evidence under the law. not having been voluntarily made.

 

                Held.  In the circumstances, the District Court was not justified in amending the indictment without giving the accused the opportunity to be heard. A count which has been struck out by consent before trial cannot in any event be revived. Furthermore, conviction on separate alternative charges under one count cannot stand because of duplication and uncertainty since the accused cannot thereafter plead, if necessary, autrefois convict or acquit.

 

                The requirement to make capital and income returns and other relevant information in accordance with the law does not render an admission involuntary. The confession rule must be distinguished from the privilege against self-incrimination. The test of the former goes to the means in which it was obtained. The latter rests in the "inhumanity" of placing a person in the legal dilemma of being criminated for an offence already committed or perpetrating another offence by refusing.

           

Israel cases referred to:

 

(1)        Cr.A. 51/61-Attorney-General v Aharon Steinberg (1961) 15 P.D.1602.

(2)        Cr.A. 114/52-Ezra Habara v Shoshanah Yeroham (1953) 7 P.D.

(3)   Cr.A. 20-21/49-A1i Mahmad Hussein Abdul Ha'adi and others v Attorney-General (1950) 3 P.D. 13.

(4)        Cr.A. 307/60-Jarboni and others v Attorney-General (1963) 17 P.D. 1541.

(5)        Tel Aviv S.C.C. 3/54-Attorney-General v Victor Mizan (1956) 11 P.M. 140.

 

English cases referred to:

 

(6)        R. v Surrey Justices. Ex parte Witherick (1932) 1 K.B. 450.

(7)        R. v Molloy (1921) 2 K.B. 364.

(8)        R. v Wilmot (1933) 24 Cr.App. R. 63.

(9)        R. v Scott (1856) 7 Cox C.C. 164.

(10)      R. v Colpus & Boorman (1917) 1 K.B. 574.

(11)      Re Worral Ex parte Cossens (1820) Buck. 531.

(12)      R. v Slogget (1856) 7 Cox C.C. 139.

(13)      R. v Noel (1914) 3 K.B. 848.

(14)      Comm. Customs & Excise v Ingram (1948) 1 All E.R. 927.

 

Arnerican cases referred to:

(15)      State v Reinhart (1895) cited in Wigmore on Evidence (3rd ed) Vol 3, p.239.

(16)      State v Novak (1899), ibid., p.240.

(17)      State v Porter (1897), ibid. p.245.

(18)      State v Guie 186 Pac 329 (1919), ibid., p.245

(19)      Wilson v U.S. 221 U.S. 365 (1911).

(20)      Davis v U.S. 328 U.S. 582 (1946).

(21)      Shapiro v U.S. 335 U.S. 35 (1948).

(22)      pano v New York 360 U.S. 315 (1959).

(23)      Blackburn v Alabama 361 U.S. 199 (1960).

(24)      Nicola v U.S. 72 F. (2d) 780 (1934).

(25)      Hanson v U.S. 186 F. (2d) 61 (1950).

 

A.S. Shimron for the appellant.

A. Kamar, Deputy State Attorney, for the respondent.

 

BERINSON J.            The appellant was tried by the Haifa Magistrate's Court on the following five counts under sec.77 of the Income Tax Ordinance, 1947:

(1) giving incorrect information on a return of capital submitted as at 31 March 1957 in that he included an excess of 620 sovereigns;

 (2) giving incorrect information in a return of capital submitted as at 31 March 1959 in that he did not include a sum of IL. 12,500:

(3) preparation of an incorrect return for the 1957 tax year in that he declared an income of IL.3,600, and thereafter reached agreement with the Assessing Officer whereunder his income for that tax year was put at IL.5,000 whereas his true income in that tax year was IL.69,490, thus omitting without reasonable explanation from the said return income amounting to IL.65,880;

(4) a similar offence of omitting the same income of IL.65,880 from the return for the 1958 tax year;

(5) an alternative offence of omitting the same income of 1L.65,880 from the returns for the 1957 and 1958 tax years.

 

            At the outset counsel for the appellant pleaded that the fifth count suffered from being duplicatory and further did not disclose an offence, and with the consent of the representative of the Attorney-General, it was struck out.

           

            In the Magistrate's Court the appellant was acquitted of the second and fourth counts but was convicted of the first and third counts for omitting an amount of IL.35,800. He appealed against the conviction but the Attorney-General did not appeal against the acquittal. The District Court acquitted the appellant on the first count as well but found him guilty of the third count, amending the conviction as follows: "Since we are unable to determine whether this amount (of IL.35,800) was omitted from the return for the 1957 tax year or from that for the 1958 tax year, the conviction will stand for omitting this amount from the return for the 1957 tax year or from that for the 1958 tax year or from both together." In so convicting him, the Court treated the conviction as more in accord with the fifth count which had been abandoned as above but felt justified in doing what it did by virtue of its powers under sec. 12 (5) (b) of the Magistrate's Court Jurisdiction Ordinance (1947) to amend a count in order to give such judgment as, in its opinion, ought to have been given by the Magistrate's Court. In so doing the District Court relied on the judgment of this Court in Attorney-General v Steinberg (1), stating that in any event if the appellant did not omit chargeable income from the return for 1957, he omitted it for 1958, or omitted part in each year.

           

            It seems to us that the path which the District Court followed is not open to us. Appellant's counsel rightly urged that by so convicting the District Court went beyond its powers. Under the said section the power of a District Court as an appellate court is to give such judgment as should in its opinion have been given by the court below on the charge of the evidence adduced. Might the Magistrate's Court, at the end of the hearing, have reverted to the fifth count and convicted for it, after having been included in the charge sheet and struck out with the consent of the prosecution in view of the opposition of defendent's counsel? It seems that it could not, precisely because it was struck out. And if the Magistrate's Court might not so revert, then also the District Court could not.

 

            Mr. Shimron frankly admitted that the appellant was not substantively put at a disadvantage by the District Court's amendment of the charge, and had he been given the opportunity to plead against the charge in the manner which the District Court had in its judgment, he would not have advanced any new argument against the charge itself nor put in any evidence further to that before the court. Yet, he argues, had he had the opportunity to plead against the charge in its new form he would have shown that the District Court was not empowered to convict as it did - at least, he would have shown that the conviction certainly suffered from being duplicatory.

           

            We agree with Mr. Shimron that in the circumstances of the case, as described above, it was not proper to vary the counts without giving the Defendant good opportunity to plead to the variation, and had that been done, he would have had something to say to prevent such conviction as the District Court decided upon. Indeed, the fifth count was not struck out in vain by the Magistrate's Court without opposition from the prosecution. It is clear to us that in its original form it did not disclose any offence since the duty is to make a return of income for each tax year separately (sec. 43A of the Income Tax Ordinance) and no duty exists to submit a return for two years together. The offence can only be the making of an incorrect return for one particular year. Neither can the conviction on the amended count stand, first, because of the above point that the Magistrate's court could not revive - even if in an amended form - the count struck out by it at the outset and that therefore the District Court was debarred from doing so; and secondly - and this is the main reason - because the new count, as phrased by the District Court, contains in fact a number of separate alternative offences, the omission of the amount of IL 35,800 from the return for 1957, or the omission of that amount from the return for 1958, or the omission of an unaxetained part of that amount from the return for 1957 and omission of the remainder from the return of 1958.

 

            Such a conviction is defective both for duplication and uncertainty. "1t is an elementary principle that an information must not charge offences in the alternative, since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict:" R. v Surrey Justices (6) at 452; see also R. v Molloy (7) and R. v Wilmot (8).

 

            According to Attorney-General v Steinberg different offences can be contained in one indictment in the alternative, provided that each is put as a separate count. lf the prosecution succeeds in proving that the Defendant has prima facie committed one of the alternative offences, the Defendant must answer to the charge. Should he not do so or not succeed in exculpating himself from all the alternative offences, he can be convicted of one of them but not on the basis of the very same facts of all of them or in a vague manner of one or other offence without choosing one of them.

           

            For this reason, we must go back to the third original count and inquire whether he could be convicted of that or alternatively of the fourth count. These two counts of which the defendant was charged in the Magistrate's Court are in their nature alternative. That they are so is not expressly stated in the indictment but that is unnecessary where they are clearly so. It is indeed manifestly clear in the present case: the appellant is alleged to have omitted an amount of IL.65,880 once only in one of two years but the prosecution did not know precisely in which of them. He was therefore charged with the omission of the entire amount alternatively in the one or the other year. Accordingly the Magistrate's Court could, at its election, have convicted him of one of these two alternative charges upon finding that all or part of the amount was omitted from the return for one of the two years. Since it found that an amount of IL.35,800 was omitted in the 1957 tax year, he was convicted of the third count and exonerated of the fourth count. There was no appeal by the prosecution against the latter, but according to Habara v Yeroham (2) that does not deprive the appellate court of the power to convict for the offence for which he should initially have been convicted on the evidence adduced in the case. Notwithstanding, therefore, the acquittal by the Magistrate's Court on the fourth count and the fact that the Attorney-General entered no appeal, the District Court could have convicted the appellant of one of the two counts, depending on the evidence before the Magistrate's Court. This course which was open to the District Court is obviously open to us as well, and we shall later consider the possibility and need to proceed accordingly.

 

            Before doing so, we must deal with two other arguments by Mr. Shimron, each of which, if accepted, may relieve us from the necessity of dealing with the details of the omission alleged against the appellant.

           

            The first argument is that in the course of other proceedings between the parties regarding the assessment for tax year 1957 ... counsel for the respondent pleaded an income of IL. 22,000 and the State is therefore bound by that. The income was at first fixed by agreement for each of the years 1952 to 1957 inclusive. Since, however, the appellant's declarations of capital disclosed unexplained differences, the Income Tax Commissioner reopened the assessments and increased them and also determined the appropriate assessments for 1958 and 1959. That was, done by distributing the capital differences among all these years; for 1957 the new assessment was put at IL. 22,000 as against the appellant's declared income of IL. 3,600 and the income earlier agreed of IL. 8,000. The argument was that this determination by the Commissioner, approved by court on appeal against the assessment, is by way of an admission by the State of the correct income of the appellant in that year and the State now cannot argue otherwise here.

           

            I must say that I have not quite understood the argument. What admission is there which prevents the State from arguing otherwise or in contradiction? The Commissioner estimated the appellant's income on the basis of the disclosed capital differences and made an arbitrary division of these in respect of those years according to his best judgment. This is not to be regarded as a determination of the true income of the appellant in those years, which bars the State from showing the facts as they really were. The determination is no more than was earlier agreed by the Assessing Officer to put the appellant's income for 1957 at only IL. 8,000. Mr. Shimron himself agrees that what occurred does not create an estoppel against the State and is not to treated as a final determination. If that is so. the most he can say is that the Magistrate's Court should have weighed the State's submissions in this case in the light of the fact that they vary from those made in that case. The evaluation of the evidence is primarily the concern of the court hearing the matter. In the present instance the Magistrate's Court had to decide which was preferable, the vague assessment of the Assessing Officer or the result emerging from all the evidence put to it. It preferred the latter and no one complained about that.

 

            Incidentally, had we said that the Commissioner's assessment was determinative, then at least this "admission" upon which the appellant relies is calculated to convict him at once for concealing an amount of IL. 18,400, the difference between the assessment of IL. 22,000 and a declared income of IL. 3,600, and the plea that the appellant had not committed any offence would fall. I am certain that had the prosecution attempted to base conviction on this ground, Mr. Shimron would be the first to protest and rightly.

           

            Mr. Shimron's second submission concerns two declarations of capital of March 31, 1957, and March 31, 1959, which the appellant filed with the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, and which served as a basis for calculating the amount omitted from the annual returns of income. Mr. Shimron argued that the declarations of capital presented in court are not admissible as evidence. They form confessions in the sense of sec. 9 of the Evidence Ordinance since they contain statements from which the likely conclusion is that a criminal offence has been committed, and it was given to the Assessing Officer, a person in authority. (See sec. 3 of the Income Ordinance which defines an Assessing Officer as an officer appointed to implement the Ordinance, possessing wide powers, including those under sec. 45). The declarations, being confessions which the appellant was compelled to make under the law, lacked "free and voluntary" foundation and are therefore inadmissible. Mr. Shimron argued further that the Income Tax Ordinance did not permit the use of information delivered under sec. 45 as evidence against the person delivering it, even if it is liable to incriminate him and in the absence of such a provision it is not permissible as evidence. Initially, the submission appeared very peculiar to me, its reasonableness somehow worried me, and as I continued to think about it and examine the sources I indeed grew conscious that it was completely baseless.

 

            The first question is whether the declarations of capital, each on its own and together, fall within "confessions" within the meaning of sec. 9 of the Evidence Ordinance. Archbold's Criminal Pleading (34th ed.) p. 415, para 1104, states that "an extra-judicial confession is made where the prisoner makes an admission ... of his guilt or of any fact which may tend to the proof of it."

           

            Mr. Shimron relies on this definition. He agrees that although the declarations as such do not confess any guilt, they contain, in his view, an admission of facts which tend to guilt. Mr. Kamar on the other hand argues that according to its terms sec. 9 of the Evidence Ordinance is limited to "confessions by the accused that he has commited an offence. It therefore applies only to actual confessions of an offence and not to admissions of facts which in themselves do not point to guilt. In his opinion, the terms of see. 9 are more in accord with the English rule which we have so far followed, and he suggests that we replace the one with the other. The rule in the U.S., as given by Wigmore on Evidence (Third ed.), vol. 3, para. 821, pp. 238 ff, is more stringent than the English rule.

           

"A confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it."

 

            It clearly follows from this definition that an exculpatory statement by the accused or his acknowledgment of subordinate facts colourless with reference to actual guilt or in other words not essential to the alleged offence is not a confession (ibid. pp. 239 & 243). The many precedents cited justify the above summary of the rule.

           

"A 'confession' in a legal sense is restricted to an acknowledgement of guilt made by person after an offence has been committed, and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred." (State v Reinhart (15)).

 

"A confession is a voluntary admission or declaration by a person of his agency or participation in a crime... To make an admission or declaration a confession, it must in some way be an acknowledgement of guilt." (State v Novak (16)).

 

            "We take it that the admission of a fact, or of a bundle of facts, from which guilt is directly deducible, or which within and of themselves impart guilt, may be denominated a confession, but not so with the admission of a particular act or acts or circumstances which may or may not involve guilt, and which is dependent for such result upon other facts or circumstances to be established.:' (State v Porter (17)).

 

And finally, a quotation which to some extent accords with the circumstances of the present case:

 

"A confession is a direct acknowledgement of guilt on the part of the accused, and, by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction." (State v Guie (18)).

 

It is true that see. 9 of the Evidence Ordinance speaks of "confessions of an offence" but, as Mr. Kamar admits, the courts in this country normally regard every admission of a fact indicative of guilt or tending to prove guilt as a confession, and I do not see any reason for departing from this course, which is at one with English practice. A local precedent may be found in the District Court judgment in Mizan (5), from which this Court did not demur on appeal.

 

            The next question is whether the two declarations of capital meet the above tests of a confession. The first declaration, relating to Mar. 31, 1957, was filed on October 8, 1957. At that date, obviously, no income return had been submitted for the 1957 tax year; that was only done on May 18, 1958. It is therefore clear that on the date the declaration of capital was filed no offence had as yet occurred and that the declaration cannot be "a confession by the accused that he has committed an offence" (see. 9). On the other hand the second declaration, relating to March 31, 1959, was filed on September 9, 1959. At that date, the Assessing Officer already had the two income returns for 1957 and 1958 (the second was filed on June 18, 1959). Accordingly when the second declaration was filed, the offence of delivering an inaccurate return for 1957 had already been committed, if it was inaccurate. In this regard alone must the second declaration of capital be regarded as a confession, if (together with other documents) tending to the appellant's guilt.

 

            Mr. Kamar goes on to urge that this declaration of capital does not have to be tested by "voluntariness" since it was not filed at the request of the Assessing Officer but by the appellant on his own initiative, not as a person suspected of having committed an offence but apparently in connection with objections to the assessments for 1957 and 1958. This is not quite correct. The appellant was invited to appear at a hearing before the Assessing Officer and was asked to bring along documents in his possession on which his objections to the assessments were based. Attached to the invitation was a form of declaration of capital for March 31, 1959. That was clear notice that this declaration was among the documents he was to bring with him. The appellant in fact so understood it and did what was required. Nor can it be said that at the time the appellant was not suspected of commission of an offence. Already on January 23, 1959, his bank safe was searched and gold coins were found there which he had not declared; the appellant was suspected because of that by the income tax authorities.

           

            We now reach the main submission of Mr. Shimron, that the declarations of capital were not made voluntarily by the appellant and are therefore inadmissible in evidence against him. This submission is based on the fact that the appellant was compelled to make the declarations under statutory dictate, since he was threatened by criminal sanctions under sec. 76 of the Ordinance if he did not comply with the request of the Assessing Officer.

           

            There are a number of answers to this submission.

           

(1) When is an admission treated as a confession not voluntarily made? The test, it was said in Ha'adi (3), is a single one. "Where the admission was made by the defendant voluntarily, without compulsion, temptation or persuasion, it is valid, where it was not so made, it is invalid." To use the usual formula, a confession obtained under threats or improper assurances is invalid:

 

            The Assessing Officer's request under sec. 45 of the Income Tax Ordinance to make a declaration of capital or to deliver any other information a person has in connection with his income is not unlawful compulsion or temptation or persuasion that can invalidate the declaration made or information delivered in response to the request.

           

            In dealing with extra-judicial admissions Wigmore on Evidence (3rd ed.) vol. 4, para. 1050, pp. 7-8, says that "admissions made under a duty imposed by law stand on a special footing. It would seem that nothing in the principles governing Admissions excludes them." As exception to the rule he mentions inter alia the following two instances in which an admission may be invalidated. The first is when the statute imposing the duty requires a report to a public official but makes its contents confidential and expressly renders it as privilege a communication; even if not express the privilege may be implied where policy obviously requires it. Secondly, in criminal cases, an admission of this kind might receive protection from the privilege against self-incrimination.

           

            In our opinion, neither of the said instances is applicable here. Not only does the Income Tax Ordinance not extend any privilege to information delivered in response to a notice under sec. 45 but it makes a failure to respond or the delivery of wrong information a criminal offence (secs. 75 & 76). All this shows that the legislative intent was that a person requested to deliver information which assists in determining his true income must produce that information, accurate and true. It cannot be that information is privileged from an application to court against the person delivering it. If it were so, that would enable or facilitate the delivery of inaccurate information without fear and the purpose of the law set at naught. In R. v Scott (17), dealing with the examination of a bankrupt under a section of the Bankruptcy Act which bound him to answer questions touching his business affairs etc., it was decided that his answers even though incriminatory, were good evidence in a criminal charge against him. Lord Campbell said,

           

''lf the party has been unlawfully compelled to answer the question, he shall be protected against any prejudice from the answer thus illegally extorted; but a similar protection cannot be demanded where the question was lawful and the party examined was bound by law to answer it."

 

            And then,

 

"When the Legislature compels parties to give evidence accusing themselves, and means to protect them from the consequences of giving such evidence, the course of legislation has been to do so by express enactment... We therefore think we are bound to suppose that in this instance, in which no such protection is provided, it was the intention of the Legislature to compel the bankrupt to answer interrogatories respecting his dealings and conduct as a trader, although he might thereby accuse himself and to permit his answers to be used against him for criminal as well as civil purposes" (at pp. 170-71).

 

Likewise, Alderson B put it succinctly:

 

"My judgment proceeds upon the ground that if you make a thing lawful to be done, it is lawful in all its consequences; and one of its consequences is that what may be stated by a person in a lawful examination, may be received as evidence against him"(at p.175).

 

(2)        The principle that invalidates incriminatory answers not given voluntarily, does not operate here for another reason as well. It is a leading rule that an official document kept by or found in the possession of a public official must be accessible to the representatives of the public and generally to the entire public, and it can serve as prima facie evidence of the truth of its contents. And its presentation in evidence, even if it tends to incriminate the public official or any other person, is not to be barred unless the law otherwise prescribes or if for some other lawful reason that official or other person is protected against disclosure of the document and its presentation in court. The reason is that the State requires it to be kept and does not ask of the official to commit an offence. "If in the course of committing the crime he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law" (Wigmore on Evidence (3rd ed.) para. 1259c, p. 349). 349).

 

            This reason is equally operative with regard to records which the law requires the citizen to keep, including returns and other documents made under statutory requirement. These documents are not merely the private papers of the citizen which he can conceal and prevent their disclosure as evidence in court. They possess a public character and therefore if lawfully obtained are valid evidence: Wilson v U.S. (19); Davis v U.S. (20); Shapiro v U.S. (21). The public has an interest in their non-concealment and their availability for every lawful purpose. This interest prevails over the private interest of their owner to prevent disclosure.

 

(3) Although pleaded, there was in fact no proof that the declaration of capital was given under compulsion of "threat" of criminal sanction hanging over the appellant in the event of his non-compliance. The notice sent to him asked him to present a declaration in the form attached. The form follows sec. 45 of the Ordinance but contains no notice or warning that non-delivery of the required declaration is an offence under the law. True, every person is presumed to know the law. That is a legal presumption. It is another question whether in fact the appellant was aware of the statutory penal sections and as a result of such knowledge complied with the request but otherwise would not have done so. The burden of proof that the evidence which the appellant wishes to exclude was given voluntarily is, we know, upon the prosecution. A plea of improper influence exercised on the defendant, in consequence of which he confessed, must be explicit so that the prosecution knows what case it has to meet. Here the appellant neither attested nor pleaded that he knew of the statutory penal sections and these it was which moved him to respond to the request and deliver the declaration of capital involved. In point of fact, there was no proof of the kind of influence exerted on the appellant that would justify the declaration being invalidated as evidence. The form asked the appellant to give correct particulars and to complete the form accurately. There is no reason for assuming that as a consequence he was influenced to include incorrect statements in the declaration: R. v Colpus (10).

(Berinson J. then analyzed at lenght the facts about the omissions and the related calculations, and continued.)

 

            The result ultimately is that we uphold the conviction on the third count and find that a sum of IL.21,252 was omitted, without reasonable explanation, by the appellant from his return of income for 1957.

           

On the assumption that the amount omitted was IL.35,800 the appellant was sentenced to a fine of IL.14,000 or six months' imprisonment and a suspended term of three months. In respect also of the omission as above, although it is less, we do not think that the sentence is excessive and we uphold it and dismiss the appeal.

 

            I have read the judgment of my learned friend, Halevi J., and I concur in it.

           

MANNY J.     I concur in the judgment of my learned friends, Berinson J. and Halevi J.

 

HALEVI J.     I agree.

 

2. As for the admissibility of the declaration of capital (exhibit P/4) which was the bone of contention in this appeal, it seems to me that learned Defence Counsel, and following him learned Deputy State Attorney, did not sufficiently distinguish between the confession rule and the privilege against self-incrimination.

 

            The basic argument of Mr. Shimron was that the appellant submitted the declaration of capital to the Assessing Officer on his request under sec 45(1) of the Income Tax Ordinance, 1947, a request behind which lay the criminal sanction of sec. 76(1). For myself, it is immaterial that this criminal sanction was not made express in the notice of request sent to the appellant, and I am ready to assume in his favour that he submitted return P/4 out of necessity, in order only to abide by his statutory obligation under sec.45(1) and with knowledge of the law, including sec. 76(1). Nevertheless that does not amount to "compulsion by some one in authority" in the sense of sec. 9 of the Evidence Ordinance but "compulsion under law." The only question that can arise regarding this kind of compulsion is whether the law goes so far as to compel a person to incriminate himself or leaves the door open to the privilege against self-incrimination.

           

3. The principle behind the privilege against self-incrimination - "one of the most sacred principles in the law of this country" (Lord Eldon in Ex parte Cossens (11) at p. 540) - is a Common Law principle which was given "constitutional" status by the Fifth Amendment in the United States ("No person...shall be compelled in any criminal case to be a witness against himself"). The source, it appears to me, lies in Jewish law, in the rabbinical formula "no person can declare himself a   criminal (rasha)" (Sanhedrin 9b). The Latin aphorism - "Nemo terretum se ipsum accusare (or predere)" - is an almost literal translation and attests to the Jewish source. (See the passages cited by Riesenfeld, "Law Making and Legislative Precedent in American Legal History", (1949) 33 Minn L.R. 103,118, reproduced in McCormick, Law of Evidence (1954) p. 253, notes 9-10. See for the history of the principle in England, Wigmore on Evidence (McNaughton Rev. (1961) ) vol. 8, para. 2250). With the reception of the substance of the Common Law in this country, through article 46 of the Palestine Order in Council and sec. 11 of the Law and Administration Ordinance, 1948, the Jewish law principle returned to its original source.

 

            One must indeed distinguish carefully between the embracing meaning of the principle in Jewish Law, that a person cannot incriminate himself by his own utterance, and its more limited meaning in the Common Law, a person is not required to incriminate himself. "A person is, vis-a-vis himself, a relative, and no person can declare himself a criminal," (Sanherdin. 9b) is explained by Rashi ad locum: "That is to say, he is not incriminated by his own evidence since Torah disqualifies a relative as a witness."

 

4. For all the close similarity of the self-incrimination privilege and the confession rule and in spite of their possible overlapping in certain instances, a basic difference exists between them: see R. v scott (9) at pp. 169-70, and Wigmore on Evidence, ubi supra, para. 2266.

(a) The "confession" test under see. 9 of the Evidence Ordinance is directed to examining the means by which the confession was obtained from the defendant. If these means were "promises or threats" by "a person in authority", then

"it would be dangerous - so the legislature assumes - to rely on it as being truthful... The true reason for excluding confessions not made 'voluntarily' is based on the consideration that it would be dangerous to rely on it for that reason as trustworthy evidence."

(Agranat J. in Jarboni (4) at pp. 155 3-54). (See, however, the reservations of McNaughton in Wigmore on Evidence (McNaughton Rev.) vol. 8, para. 2266, about this reason (which was that given in Wigmore 3rd ed.) in view of recent American decisions: Spano v New York (22) and Blackburn v Alabama (23) ).

 

            On the other hand the self-incrimination privilege is not based on fear of the untrustworthiness of incriminating evidence. The reason (or one of the important reasons) for it is that it is immoral - and even inhumane - to place a person in the "legal dilemma of either incriminating himself by a true admission of the crime he committed or committing a new crime by refusing to give evidence or by giving false evidence." (Cf. Williams, The Proof of Guilt (3rd ed.) p. 53). In this situation, according to the Common Law, a person may refuse to answer a question to which otherwise he would be obliged under law to reply truthfully. (See Wigmore on Evidence para. 2251, and particularly pp. 316 - 18).

           

(b) By requiring the prosecution to produce "evidence of the circumstances in which (the confession) was made" see. 9 is concerned with the factual question of whether any pressure or inducement was exerted by a person in authority to bring about the confession. Self-incrimination, by contrast, does not come from any "means" used on the defendant or accused to move him to confess the alleged offence but from the very "dilemma" of that person who knows in his heart - and perhaps alone knows without any one else suspecting him - that a true answer to the lawful question put to him might criminate him of the offence he has committed. The privilege therefore - as against the confession rule - obtains in cases of "legal compulsion" that would otherwise exist, that is, when the law (or the person acting in its name, a judge or authorized investigator) requires or "compels" the person being examined to give full and accurate answers to questions lawfully addressed to him. In this situation, and only in this situation, does the question arise - and it is a question of law - whether in fact the law compels an answer even if it tends to be "self-incriminatory" or whether the person can insist on "the privilege" and refuse to answer questions which may expose him to the danger of a criminal charge.

 

(c) The stage of the proceedings at which the privilege may be exercised varies from that at which the question of the admissibility of confession occurs. The privilege is to be claimed before the possibly incriminatory answer is given. A person possessing the privilege who answers a question without protest, even if it may incriminate him, has waived the privilege and his answer is admissible against him in every civil and criminal court: see R. v Slogget (12) and R. v Noel (13): Kenny Turner, Outlines of Criminal Law (17th ed., 1958) para. 590; Cross Evidence (2nd ed., 1963) p. 227: Wigmore on Evidence (McNaughton Rev.,) paras. 2268 and 2275.

 

            Only when the person, relying on the privilege, refuses to answer the question and is unlawfully required to answer it, will the incriminating answer be excluded as evidence against in any trial: R. v Scott (9): Kenny-Turner, loc. cit.; Wigmore, op. cit., para. 2270, p. 417 and the precedents in McCormick, op. cit. para. 127 notes (1) and (8); Cf. American Law Institute, Model Code of Evidence (1942), rule 232 and Uniform Rules of Evidence (1953), rule 38.

           

5. Accordingly, the privilege is only to be pleaded and the question of its application in a given instance is only to be treated on a refusal to answer a question which has been put or to produce a document which has been requested. Had the appellant here refused at the time to file the return of capital requested under sec. 45 (1) of the Income Tax Ordinance or to answer any of the questions appearing on the form of the return, he could have been sued under sec. 76 (1) which provides that "every person who, without sufficient cause,... fails to comply with the request of a notice given to him under this Ordinance" is liable to imprisonment and fine. At the trial, the appellant could have pleaded in defence that the self-incriminating privilege was "sufficient cause" for failing to comply with the request of the Assessing Officer, and in view of this defence the court would have had to decide whether in fact the privilege existed as regards a request under sec. 45 (1) of the Ordinance. There is no need to consider this question in the present appeal since the appellant waived the privilege (if any) by giving full answers to the questions set out in form P/4 and submitting a return of capital without contestation or opposition. In this regard, there are the direct precedents of Nicola v U.S. (24) and Hanson v U.S. (25) where it was held that persons liable for income tax, who delivered to the tax authorities upon request their books, documents and other information cannot subsequently rely on the Fifth Amendment in order to invalidate the use of this material as evidence against them in a criminal trial in which they stand charged for evasion of income tax. In Nicola v U.S. (24) it was said at p. 784 that the purpose of obliging a tax payer to hand over information is to enable the authorities to calculate the tax and verify its accuracy, and the tax payer cannot refuse to supply information and the question was whether he had waived privilege. The constitutional right, it was said, was intended for the benefit of the witness and if it was not claimed, he was deemed to have waived it. He could only claim the privilege from the Government agency when refusing to produce his books. It was too late to do so, after the information had reached the agency with his consent.

 

6. These grounds are sufficient for rejecting every plea against the admissibility of the return of capital. If the appellant possessed a self-incriminatory privilege, he had waived it. I should add that I can see no foundation in the plea itself of privilege regarding see. 45 (1) of the Income Tax Ordinance.

 

            In Israel (unlike the United States) there is no constitutional assurance of the privilege and the legislature is free to repeal or deny it. In R. v Scott (9) Lord Campbell said (at p. 170):

           

"Finally, the defendant's counsel relies upon the great maxim of English Law memo tenetur se ipsum accusare. So undoubtedly says the Common Law of England. But Parliament may take away this privilege, and enact that a party may be bound to accuse himself: that is, that he must answer questions by answering which he may be criminated."

 

            The question whether a law which binds the citizen to deliver information, documents and returns to the Government in matters defined by law compels him to incriminate himself or whether it leaves it open to him to claim the self-incriminating privilege is ultimately, in the absence of express provision, a question of statutory interpretation. At all events, in the absence of express statutory provision, a citizen who files a return (or other material as aforesaid) under lawful duty is clearly not privileged against the use of the material in evidence against him in a criminal trial. Not only is there no provision in the Income Tax Ordinance precluding the use of a return under sec. 45 (1) as evidence in a criminal trial of the person making the return for an offence under the Ordinance, but sec. 4 (2) provides the reverse:

 

"No person appointed under... this Ordinance shall be required to produce in any court any return, document or assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Ordinance except as may be necessary for the purpose of carrying into effect the provisions of this Ordinance, or with a view to, or in the course of a prosecution for any offence committed in relation to income tax."

 

A distinction must be made between the "self-incriminating privilege" and the "immunity" from the production of returns in court. See. 4 (2) denies the immunity of returns made to the Assessing Officer under see. 45 (1).

 

            Sec. 45 is not primarily directed to the disclosure of offences against the Ordinance, but the authority of the Assessing Officer to request returns, including one of capital, is to obtain full information about a person's income. The immediate purpose of the section is fiscal, to ascertain a person's true income so as to collect the tax due from him under the Ordinance. Were the citizen given the "privilege" to refuse to answer questions likely to incriminate him of an offence against the Ordinance (like the one dealt with here, omissions of income from the annual return), the privilege would prejudice not only the task of proving the criminal offence (which is the function of the privilege) but also the carrying out of the fiscal purposes of sec. 45. Two interpretations only are possible of this section - one which enables the Assessing Officer to obtain full information about a person's income and accordingly to determine and collect the tax due, and also, if the return discloses incriminatory matter, to pass such matter on to the Attorney-General for taking criminal proceedings; and one which permits a person receiving a notice under the section to refuse to answer incriminating questions and accordingly also to prevent the Assessing Officer from obtaining full information about his income, that is, to prevent the due tax to be fixed and collected. Of these two interpretations, the first is to be chosen, for the second frustrates the purpose of the law.

           

            A similar question was dealt with in England in connection with income tax law in Commissioners of Customs and Excise v Ingram (14). Under sec. 20 of the Finance Act, 1946, every registrable person must keep records and accounts, and preserve and produce them to the Commissioners as required. Every merchant, importer, etc. is also required to furnish the Commissioners information relating to the purchase or import of goods and to produce the books, accounts or other documents concerning the goods, as may be requested. The Act provides penalties for non-compliance with any request. Under Sec. 14 of the Crown Proceedings Act, 1947, the Crown may apply in a summary manner for the delivery of any accounts, the production of any books or the furnishing of any information under the enactments relating to purchase tax. The Commissioners applied for an order against the respondent. Lord Goddard stated (at p. 929) that

           

"counsel for the defendants has argued that the court would not order the production of documents which may incriminate the subject. In my opinion, one cannot make any such limitation here. The very object of the Finance Act, 1946, in the sections which relate to the matter, is to give to the Crown the power of investigating a person's accounts and so forth to see whether he is defrauding the Revenue by not paying that which he ought to pay... (It) is quite a common-place of legislation designed to protect the revenue of the Crown, as it is realised that all the information must generally be within the knowledge of the taxpayer or the subject,... to oblige him to do certain things which may have the effect of incriminating him... It is said that when a man is called on under sec. 20 to produce his documents, his books, invoices or accounts..., he is entitled to take objection and say: 'I will not produce this one or that one because it may incriminate me.' It seems to me that that would be stultifying the whole purpose of the section, and the claim for privilege, which, as between subject and subject in an action, may be made, has no application to this class of discovery or production."

 

These reasons are equally applicable in the present case.

 

Appeal dismissed

Judgment given on June 30. 1964.

Haifa University v. Oz

Case/docket number: 
HCJ 844/06
Date Decided: 
Wednesday, May 14, 2008
Decision Type: 
Original
Abstract: 

Facts:  The petitioner employed respondents 1-3 (hereinafter – the respondents) as lecturers in the Theatre Department. Against the background of complaints concerning the management of the department, an Investigative Committee was established, which decided not to renew the employment of respondents 2-3 and to transfer respondent 1 to another department. The Regional Labour Court rejected the respondent's request to order the petitioner to provide them with all of the material relied upon by the Committee, including protocols and testimony, ruling that the material they had received sufficed to allow for an adequate response on the respondents' part to the claims. This decision was appealed to the National Labour Court, which accepted the appeal and ordered the petitioners to transfer all of the materials to the responses, while deleting the names of the witnesses and other identifying details, basing its decision on the fact that as a hybrid body the University was governed by the rules binding an administrative authority vis-à-vis anyone who may be harmed by its decisions.  This included the obligation to disclose relevant documents and to allow their examination.  The relevance of the documents was based on the Investigative Committee's statement that its conclusions were based on the testimony heard before it and protocols of the meetings in which the testimony was given.  The National Labour Court's decision was appealed to the Supreme Court.

 

The petitioners claimed that its functions as a public body do not suffice to subject it to the entirety of obligations of administrative law including the obligation to allow individuals to examine its documents, especially where the imposition of these duties is not accompanied by the correlative authorities and powers conferred on an administrative authority. Furthermore, the petitioner claimed that in view of the Committee's explicit promise to the witnesses not to disclose the documents to the respondent, they should be given a privileged status. The petitioner argued that a breach of this promise violates the witnesses' right to privacy, a right which is protected on three normative levels: constitutional, statutory, and case-law. Compelling it to disclose additional material would decrease the future readiness of students and lecturers to cooperate with voluntary investigation committees at the University. Furthermore, the balance of interests weighs against issuing an order to disclose the documents. The reason for this is that the potential infringement of the witnesses' privacy and the damage to its ability to establish investigation committees in the future far outweighs the damage caused to the respondents by the failure to disclose additional documents.

 

The respondents claimed that receiving the material was essential for proving their claim that the Investigation Committee's Report was replete with inaccuracies that raised doubts about the authenticity of the testimony and the documents submitted to it. Furthermore, the documentation would enable them to confront the allegations against them on a personal level and prove that the Investigation Committee was established and its proceedings conducted with the express purpose of removing them from the Department. Furthermore, the petitioner's hybrid status and its intensified obligation of good faith as their employer precluded it from refusing to disclose the documents, and this obligation was applicable to the petitioner even were it not classified as a hybrid body.  They claimed that no basis had been laid for the establishment of a privilege, the promise made to the witnesses contradicted public policy, and the testimony and complains before the committee did not fall within the rubric of private affairs within the meaning of section 2 (8) of the Protection of Privacy law. At all events, they argued, their right to a fair and just trial overrides the right of the witnesses to privacy.

 

The Supreme Court dismissed the petition and ordered the petitioners to provide respondents with the protocols while deleting the names of witnesses and other identifying particulars.

 

Held: As a proceeding being adjudicated by a statutory judicial tribunal, the starting point for disclosure and examination must be that of maximum disclosure and the broadest possible examination of the information relevant to the dispute. 

 

The doing of justice is based on the disclosure of the truth, thereby serving the interest of the individual litigant and the public interest in ensuring the "proper functioning” of the entire social structure, which requires a fair hearing that accommodates the presentation of the entire factual evidentiary foundation, thus affording the party the opportunity to properly contend with the claims of the opposing party. While the overall aim of the rules of procedure is the discovery of truth, as is the rules of evidence, the principle is not an absolute one, and may be qualified by other competing rights and values which are of importance to the individual and to society and worthy of protection, even if they are in conflict with the principles of broad disclosure.

 

In order for a litigant in a judicial proceeding to be exempted from the obligation to disclose relevant evidence at his disposal, he must prove a privilege recognized by law or by accepted case law that allows him to withhold it. Having proved the existence of that privilege,  and to the extent that the privilege is a relative one, the litigant must then show that the interest in the suppression of the evidence outweighs the need to disclose it for the purposes of doing justice.

 

The normative sources referred to by the petitioner, namely the constitutional and legal right of witnesses and complainants to privacy, and the public interest in a privilege of information given to voluntary examination committees in academic institutions, have not, to date, yielded any statutory or case-law privilege in Israeli law with respect to testimony or documents submitted to an investigation committee of an academic institution. In the establishment of a new case-law privilege it must be remembered that privilege is the exception and the rule is disclosure of most of the relevant evidence, and as such a party claiming privilege must prove both the existence of a legally recognized privilege and a more important consideration of public interest that justifies its application in cases in which the court has discretion.

 

Given that the issue concerns a voluntary investigation committee intended to examine internal university matters it would seem that the public interest in ensuring the effective operation of this kind of committee does not, per se, warrant the establishment of a high-level legal norm of privilege in relation to the testimony and evidence presented to it. Regarding the “chilling effect” of duty of disclosure upon the willingness of potential witnesses to give testimony, thus impairing the functioning of university investigation committees, this consideration is outweighed by the need to enable the employees harmed by the committees' conclusions to defend themselves against allegations leveled at them, and this is certainly the case when the procedure is conducted before a judicial forum adjudicating the question of the legal validity of a change in the employment conditions of respondent 1 and the termination of its employment of respondents 2 and 3.

 

Notwithstanding the constitutional status of the right to privacy, the provisions protecting it do not encompass all violations of the right to privacy, and indeed there is nothing to prevent the creation of additional protections of this kind in settled case law, which draw their justification from the right to privacy, even if the protection has not been explicitly regulated by statute. Nonetheless, the alleged infringement of the privacy of the complainants and the witnesses does not justify the creation of a high-level defense of privilege against the disclosure of the information. The gravity of the alleged infringement of privacy, to the extent that there was such, is relatively low, and at all events does not match the harm liable to be caused to the respondent's right to a fair proceeding if the protocols and complaints are not disclosed.

 

Neither does the promise of confidentiality given by the Committee to the complainants and the witnesses, constitute a basis for privilege, and the violation of the privacy of the witnesses and complainants involved in the breach of that promise does not establish a public interest that justifies vesting the information with a privileged status in the circumstances of this case in view of the weight of the opposing considerations.

 

Justice Naor: The question whether or not the names and identifying details of the complainants and witnesses should have been omitted from the copies of the minutes relayed to respondents should be left for future decision, as there is no petition of respondents before us, and as that is not the issue in this case. Insofar as the voices of the complainants and the witnesses were not heard in the proceedings before us, nor can it be said that the promise given to the witnesses should be seen as including an unwritten reservation to the effect that the promise is subject to any lawful requirement to give testimony or submit a document. The basis for compelling disclosure in this case should rather be that promise of confidentiality cannot override provisions of law requiring the giving of testimony or disclosure of documents.  There is an uneasy feeling regarding the fact that the promise was not kept and the interests of complainants and witnesses were not safeguarded, nonetheless, in the current circumstances, the interest of safeguarding the respondents’ workplace and honor overrides the interest of the complainants and witnesses. Note well: if their testimony is accepted they have nothing to fear. Nevertheless, if they provided incorrect information, on the basis of the secrecy promise, there is no reason to protect them. A proper judicial proceeding reveals the truth, whatever it may be. Not having examined the disputed documents and related testimony, the court cannot make any definite finding on the question of whether there was an infringement of privacy of the complainants and witnesses. However, even under the assumption of a certain infringement of the right to privacy to the extent that it extends to court proceedings, when balanced against the harm to the respondents due to non-disclosure of the documents, the respondents would have the upper hand. The interest in preventing harm to the good names, careers and dignity of the respondents, and the public interest in revealing the truth and the propriety of the judicial process, outweigh the interest in preventing a chilling effect on witnesses and submitters of evidence to investigative committees. In view of the above, the petitioner should be left with a choice either to disclose the information in the framework of the litigation, or to cancel the dismissal. This is similar to the choice of a criminal prosecutor when it is held that he must reveal classified evidence: he can choose to reveal the evidence or to withdraw the charges.  The question whether the petitioner should reveal the information due to its status as a hybrid private-public body should be left to future decision, as there was not a sufficient factual basis laid before us.  There may also be differences on this issue between a committee of investigation and an appointments committee.

 

President Beinisch. The respondents’ consent to disclosure of the documents and protocols subject to the deletion of the witnesses’ names and other identifying details detracts from the force of the petitioners’ claims concerning the severity of the infringement of the witnesses privacy and the alleged “chilling effect”.

 

Without ruling on the matter it seems 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. Such circumstances do not exist in the case of a voluntary Investigation Committee set up to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Notwithstanding the importance of this kind of committee for enhancing the quality of instruction and streamlining of the support systems in academic institutions, they do not serve 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.

The absence of a privilege however does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it, although the nature and extent of such a promise would be dependent on the statutory conditions applicable to the matter. Under the 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.

 

Petition denied.

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

HCJ  844/06

Haifa University

v.

1.         Prof. Avraham Oz

2.         Tali Yitzchaki

3.         Amit Gazit

4.         The National Labour Court

 

 

The Supreme Court sitting as the High Court of Justice

[14 May 2008]

Before Justices D. Beinisch, M. Naor, E. Hayut

 

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

 

Facts:  The petitioner employed respondents 1-3 (hereinafter – the respondents) as lecturers in the Theatre Department. Against the background of complaints concerning the management of the department, an Investigative Committee was established, which decided not to renew the employment of respondents 2-3 and to transfer respondent 1 to another department. The Regional Labour Court rejected the respondent's request to order the petitioner to provide them with all of the material relied upon by the Committee, including protocols and testimony, ruling that the material they had received sufficed to allow for an adequate response on the respondents' part to the claims. This decision was appealed to the National Labour Court, which accepted the appeal and ordered the petitioners to transfer all of the materials to the responses, while deleting the names of the witnesses and other identifying details, basing its decision on the fact that as a hybrid body the University was governed by the rules binding an administrative authority vis-à-vis anyone who may be harmed by its decisions.  This included the obligation to disclose relevant documents and to allow their examination.  The relevance of the documents was based on the Investigative Committee's statement that its conclusions were based on the testimony heard before it and protocols of the meetings in which the testimony was given.  The National Labour Court's decision was appealed to the Supreme Court.

The petitioners claimed that its functions as a public body do not suffice to subject it to the entirety of obligations of administrative law including the obligation to allow individuals to examine its documents, especially where the imposition of these duties is not accompanied by the correlative authorities and powers conferred on an administrative authority. Furthermore, the petitioner claimed that in view of the Committee's explicit promise to the witnesses not to disclose the documents to the respondent, they should be given a privileged status. The petitioner argued that a breach of this promise violates the witnesses' right to privacy, a right which is protected on three normative levels: constitutional, statutory, and case-law. Compelling it to disclose additional material would decrease the future readiness of students and lecturers to cooperate with voluntary investigation committees at the University. Furthermore, the balance of interests weighs against issuing an order to disclose the documents. The reason for this is that the potential infringement of the witnesses' privacy and the damage to its ability to establish investigation committees in the future far outweighs the damage caused to the respondents by the failure to disclose additional documents.

The respondents claimed that receiving the material was essential for proving their claim that the Investigation Committee's Report was replete with inaccuracies that raised doubts about the authenticity of the testimony and the documents submitted to it. Furthermore, the documentation would enable them to confront the allegations against them on a personal level and prove that the Investigation Committee was established and its proceedings conducted with the express purpose of removing them from the Department. Furthermore, the petitioner's hybrid status and its intensified obligation of good faith as their employer precluded it from refusing to disclose the documents, and this obligation was applicable to the petitioner even were it not classified as a hybrid body.  They claimed that no basis had been laid for the establishment of a privilege, the promise made to the witnesses contradicted public policy, and the testimony and complains before the committee did not fall within the rubric of private affairs within the meaning of section 2 (8) of the Protection of Privacy law. At all events, they argued, their right to a fair and just trial overrides the right of the witnesses to privacy.

The Supreme Court dismissed the petition and ordered the petitioners to provide respondents with the protocols while deleting the names of witnesses and other identifying particulars.

 

Held: As a proceeding being adjudicated by a statutory judicial tribunal, the starting point for disclosure and examination must be that of maximum disclosure and the broadest possible examination of the information relevant to the dispute. 

The doing of justice is based on the disclosure of the truth, thereby serving the interest of the individual litigant and the public interest in ensuring the "proper functioning” of the entire social structure, which requires a fair hearing that accommodates the presentation of the entire factual evidentiary foundation, thus affording the party the opportunity to properly contend with the claims of the opposing party. While the overall aim of the rules of procedure is the discovery of truth, as is the rules of evidence, the principle is not an absolute one, and may be qualified by other competing rights and values which are of importance to the individual and to society and worthy of protection, even if they are in conflict with the principles of broad disclosure.

In order for a litigant in a judicial proceeding to be exempted from the obligation to disclose relevant evidence at his disposal, he must prove a privilege recognized by law or by accepted case law that allows him to withhold it. Having proved the existence of that privilege,  and to the extent that the privilege is a relative one, the litigant must then show that the interest in the suppression of the evidence outweighs the need to disclose it for the purposes of doing justice.

The normative sources referred to by the petitioner, namely the constitutional and legal right of witnesses and complainants to privacy, and the public interest in a privilege of information given to voluntary examination committees in academic institutions, have not, to date, yielded any statutory or case-law privilege in Israeli law with respect to testimony or documents submitted to an investigation committee of an academic institution. In the establishment of a new case-law privilege it must be remembered that privilege is the exception and the rule is disclosure of most of the relevant evidence, and as such a party claiming privilege must prove both the existence of a legally recognized privilege and a more important consideration of public interest that justifies its application in cases in which the court has discretion.

Given that the issue concerns a voluntary investigation committee intended to examine internal university matters it would seem that the public interest in ensuring the effective operation of this kind of committee does not, per se, warrant the establishment of a high-level legal norm of privilege in relation to the testimony and evidence presented to it. Regarding the “chilling effect” of duty of disclosure upon the willingness of potential witnesses to give testimony, thus impairing the functioning of university investigation committees, this consideration is outweighed by the need to enable the employees harmed by the committees' conclusions to defend themselves against allegations leveled at them, and this is certainly the case when the procedure is conducted before a judicial forum adjudicating the question of the legal validity of a change in the employment conditions of respondent 1 and the termination of its employment of respondents 2 and 3.

Notwithstanding the constitutional status of the right to privacy, the provisions protecting it do not encompass all violations of the right to privacy, and indeed there is nothing to prevent the creation of additional protections of this kind in settled case law, which draw their justification from the right to privacy, even if the protection has not been explicitly regulated by statute. Nonetheless, the alleged infringement of the privacy of the complainants and the witnesses does not justify the creation of a high-level defense of privilege against the disclosure of the information. The gravity of the alleged infringement of privacy, to the extent that there was such, is relatively low, and at all events does not match the harm liable to be caused to the respondent's right to a fair proceeding if the protocols and complaints are not disclosed.

Neither does the promise of confidentiality given by the Committee to the complainants and the witnesses, constitute a basis for privilege, and the violation of the privacy of the witnesses and complainants involved in the breach of that promise does not establish a public interest that justifies vesting the information with a privileged status in the circumstances of this case in view of the weight of the opposing considerations.

Justice Naor: The question whether or not the names and identifying details of the complainants and witnesses should have been omitted from the copies of the minutes relayed to respondents should be left for future decision, as there is no petition of respondents before us, and as that is not the issue in this case. Insofar as the voices of the complainants and the witnesses were not heard in the proceedings before us, nor can it be said that the promise given to the witnesses should be seen as including an unwritten reservation to the effect that the promise is subject to any lawful requirement to give testimony or submit a document. The basis for compelling disclosure in this case should rather be that promise of confidentiality cannot override provisions of law requiring the giving of testimony or disclosure of documents.  There is an uneasy feeling regarding the fact that the promise was not kept and the interests of complainants and witnesses were not safeguarded, nonetheless, in the current circumstances, the interest of safeguarding the respondents’ workplace and honor overrides the interest of the complainants and witnesses. Note well: if their testimony is accepted they have nothing to fear. Nevertheless, if they provided incorrect information, on the basis of the secrecy promise, there is no reason to protect them. A proper judicial proceeding reveals the truth, whatever it may be. Not having examined the disputed documents and related testimony, the court cannot make any definite finding on the question of whether there was an infringement of privacy of the complainants and witnesses. However, even under the assumption of a certain infringement of the right to privacy to the extent that it extends to court proceedings, when balanced against the harm to the respondents due to non-disclosure of the documents, the respondents would have the upper hand. The interest in preventing harm to the good names, careers and dignity of the respondents, and the public interest in revealing the truth and the propriety of the judicial process, outweigh the interest in preventing a chilling effect on witnesses and submitters of evidence to investigative committees. In view of the above, the petitioner should be left with a choice either to disclose the information in the framework of the litigation, or to cancel the dismissal. This is similar to the choice of a criminal prosecutor when it is held that he must reveal classified evidence: he can choose to reveal the evidence or to withdraw the charges.  The question whether the petitioner should reveal the information due to its status as a hybrid private-public body should be left to future decision, as there was not a sufficient factual basis laid before us.  There may also be differences on this issue between a committee of investigation and an appointments committee.

President Beinisch. The respondents’ consent to disclosure of the documents and protocols subject to the deletion of the witnesses’ names and other identifying details detracts from the force of the petitioners’ claims concerning the severity of the infringement of the witnesses privacy and the alleged “chilling effect”.

Without ruling on the matter it seems 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. Such circumstances do not exist in the case of a voluntary Investigation Committee set up to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Notwithstanding the importance of this kind of committee for enhancing the quality of instruction and streamlining of the support systems in academic institutions, they do not serve 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.

The absence of a privilege however does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it, although the nature and extent of such a promise would be dependent on the statutory conditions applicable to the matter. Under the 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.

 

Petition denied.

 

Legislation Cited

Basic Law: Human Dignity and Liberty

Council for Higher Education Law, 5718-1958.

Commissions of Inquiry Law, 5729-1968.

Courts Law [Consolidated Version], 5744-1984.

Evidence Ordinance [New Version] 5731-1971.

Freedom of Information Law, 5758-1998.

Internal Audit Law.  5752-1992.

Labour Court Law, 5729-1969, s. 33.

Military Justice Law, 5755-1955.

Patient's Rights Law, 5756-1996.ss. 3 (a), 3 (b) .5,  21

Protection of Privacy Law, 5741-1981.

State Comptroller Law, 5718-1958 [Consolidated Version], s. 30.

 

Israeli Supreme Court Cases Cited

[1]      LabA 1185/04 Bar Ilan University v. Kesar (not reported)

                         

[2]     LCA 4999/95 Alberici International Foreign Partnership registered in Israel v. State of Israel [1996] IsrSC 50(1) 39

[3]     LabA 482/05 Mashiah v. Israel Leumi Bank Ltd.(2005) (not yet reported).

[4]     298/86 Zitrin v. Disciplinary Tribunal of Bar Association, Tel-Aviv District [1987] IsrSC 41 (2) 337.

[5]     LCA 1412/94 Hadassah Ein Karem Medical Association v. Gilead [1995] IsrSC 49(2) 516.

[6]     LCA 6546/94 Bank Iggud LeYisrael v. Azulai [1995] IsrSC 49(4) 54.

[7]     LCA 4708/03 Hen v. State of Israel - Ministry of Health (2006) (not yet reported)

[8]       LCA 2235/04 Israel Discount Bank Ltd v. Shiri (2006) (not yet reported).

[9]       LCA 5806/06 Estate of Michael Nemirovsky (dec.) v. Shimko (2007) (not yet reported).

[10]     LCA 2498/07 Mekorot Water Company Ltd. v. Bar (2007) (not yet reported).

[11]     LCA 4234/05 United Bank Mizrahi Ltd. v. Peletz (2005) (unreported).

[12]     LCA 4249/98 Suissa v. Hachsharat HaYishuv Insurance Company Ltd. [1999] IsrSC 55(1) 515.

[13]     LCA 291/99 D.N.D. Jerusalem Stone Supply v. V.A.T. Director (2004) IsrSC 58(4) 221.

[14]     CrimA 5121/98 Yissacharov v. Chief Military Prosecutor (2006) (not yet reported).[2006] (1) IsrLR 320

[15]     LCA 7731/04 State of Israel-Ministry of Health v. Estate of Avital Halperin (dec.) )2007(

[16]     LCA 7114/05 State of Israel v. Hizi (2007) (not yet reported).

[17]     AAA 6013/04 State of Israel-Transport Ministry v. Israeli News Co. Ltd.  (2006) (not yet reported).

[18]     LabA 114/05 Mekorot Water Company Ltd v. Levi (2005) (unreported).

[19]     LCA 1917/92  Skoler v. Gerbi  [1993] IsrSC 47(5) 764.

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

[21]     CrimApp 1924/93 Greenberg v. State of Israel [1993] IsrSC 47(4) 766.

[22]     CrimA 889/96 Mazrib v. State of Israel [1997] IsrSC 51(1) 433.

[23]     CA 327/68 Zinger v. Beinon (1968)  IsrSC 22(2) 602.

[24]     CA 407/73 Goanshere v. Israel Electric Company Ltd. (1974) IsrSC 29(1) 169.

[25]     LCA 2534/02 Shimshon v. Bank HaPoalim Ltd.  (2002) IsrSC 56(5) 193.

[26]     LCA 6649/07 Shlomi Local Council v. Shechtman and Co. Building and Development Company (2007) (unreported).

[27]     LA 740/05 Pas v. General Health Services (2005) (unreported).

[28]   494/06 State of Israel v. Evenchik (2007) (not yet reported).

[29]     LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency Ltd. [2001] IsrSc 55(3) 661.

[30]     HCJ 5743/99  Duek v. Mayor of Kiryat Bialik  (2000) IsrSC 54(3) 410.

[31]     HCJ 7805/00 Aloni v. Jerusalem Municipality Auditor (2003) IsrSC 57(4) 577.

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

[33]      CA 2906/01 Haifa Municipality v. Menorah Insurance Company Ltd.  (2006) (not yet reported).

[34]     LCA 9728/04 Atzmon v. Haifa Chemicals (2005) IsrSC 59(3) 760.

[35]     Mot 121/58 Keren Kayemet LeYisrael v. Katz, IsrSC 12 1472.

[36]     AAA 7151/04 Technion – Israel Institute of Technology v. Datz (2005)  IsrSC 59(6) 433.

[37]     CA 467/04 Yatah v. Mifal HaPayis (2005) (not yet reported).

[38]     CA (BS) 1038/00 Pener v. Ben Gurion University of the Negev (2001) IsrDC 5761(1) 310.

[39]     OM (Haifa) 283/04 Douhan v.  Haifa University  (2005) (unreported).

[40]     OM (Haifa) 217/05 Namana v. Haifa University (2006) (not yet reported).

[41]     LCA 7568/00 State of Israel Civil Aviation Authority v. Aharoni (2001) IsrSC 55(5) 561.

[42]         CrA 5026/97 Gal'am v. State of Israel (1999) (unreported).

[43]     HCJ 6650/04 A. v. Netanya Regional Rabbinical Court (2006) (not yet reported).

[44]         CrA 1302/92 State of Israel  v.  Nahmias [1995] IsrSc 49(3) 309.

[45]     CA 8825/03 General Health Services v. Ministry of Defence (2007) (not yet reported).

[46]     MiscApp 82/83 State of Israel v. Alia  (1983) IsrSC  37(2) 738.

[47]     HCJ 355/79 Katalan v. Prisons Authority (1980) IsrSC 34(3) 294.

[48]    HCJ 259/84 M.Y.L.N. Israel Institute for Best Product and Business Ltd. v. Broadcasting Authority (1984) IsrSC 38(2) 673.

[49]     HCJ 1435/03 A. v. Disciplinary Court for State Workers Haifa [2003] IsrSC 58(1) 529.

[50]     CA 4963/07 Yediot Aharonot Ltd. v. Adv. A. (2008) (not yet reported).

[51]     CA 439/88 Registrar of Data Bases v. Ventura (1994) IsrSC 48(3) 808.

[52]     CA 2629/98 Minister of Internal Security v. Walfa  (2001)  IsrSC  56(1) 786.

[53]     HCJ 64/91 Hilef v. Israel Police (1993) IsrSC 47(5) 653.

[54]     HCJ 10271/02 Fried v. Israel Police- Jerusalem Region (2006) (not yet reported).

[55]     CrA 1335/91 Abu Fadd v. State of Israel (1992) IsrSC 46(2) 120.

[56]     CA 391/89 Lesserson v. Shikun Ovdim Ltd. (1984) IsrSC 38(2) 237.

[57]     CA7664/00 Abraham Rubinstein and Co. Contracting Company Ltd. v. Holon Municipality (2002)  IsrSC 56(4) 117. 

[58]     HCJ1435/03 A. v. State Employees Disciplinary Court (2003) IsrSC 58(1) 529.

[59]    CA 444/94  Orot Artists Representation v. Atari  (1997)  IsrSC 51(5) 241.

[60]    AP 3542/04 Salas v. Salas (2005) (not yet reported).

 

 

For the petitioner - Haim Berinson

For respondents 1 – 3 -            Orna Lin

 

 

JUDGMENT

 

 

Justice E. Hayut

1.    Haifa University (hereinafter: "the petitioner") is a "recognized institution" as defined in the Council for Higher Education Law, 5718-1958 (hereinafter: "the Council for Higher Education Law"). It employed respondents 1 – 3 (hereinafter: "the respondents") as lecturers in the Theatre Department (hereinafter: "the Department" or "the Theatre Department") in the Faculty of Humanities.  Respondent 1 is a tenured academic faculty member of Haifa University, at the rank of associate professor. He also headed the Theatre Department between 1995 – 2000, and headed the theoretical stream until 2004. The petitioner employed respondents 2 and 3 in the Theatre Department at the rank of senior lecturers (artists) for a number of years.  Respondent 2 is the wife of respondent 1. She served as the coordinator of the Design stream in the Department, and respondent 3 served as the coordinator of the Stage Management and Acting stream.   The employment of respondents 2 and 3 was periodically renewed by virtue of letters of appointment. The last of these related to the period from 1 October 2001 to 30 September 2004.

2.    Following complaints regarding problems with the administration of the Theatre Department, the Teaching Committee of the Faculty of Humanities decided on 14 July 2003 to establish an Investigation and Evaluation Committee (hereinafter: "the Committee" or "the Investigation Committee").  The Committee comprised three lecturers from the petitioning University, and an additional lecturer from the Theatre Department at Tel-Aviv University. Its mandate was to "investigate all aspects of the Department in the areas of teaching, research and production, and submit its conclusions and recommendations with a view to the advancement and the development of the Department."  The Committee held twelve meetings and had recourse to written materials from various sources as well as interviews that it conducted. Thirteen teachers from the Theatre Department appeared before the Committee, in addition to the Dean of the Faculty of Humanities, the Head of the Theatre Department at the time, the Departmental secretary and one student.  The respondents, too, appeared before the Committee, and they also filed additional written pleadings.  On 22 March 2004 the Committee submitted a detailed report, listing a series of problems pertaining to the management of the Department, from both an academic and an administrative perspective.  Inter alia, the Report related to the functioning of the teaching staff, noting the Committee's impression of the tense relations between the respondents, who called the shots in the Department, and all its other members. The testimony presented a picture of the respondents' "total control over the Department" in setting the curriculum, in controlling the employment and dismissal of teachers, and in relation to the students."  The respondents were described as having imposed a "reign of terror" over the Department. The Committee concluded that "there is a clear connection between the 'academic shortcomings and the personal composition' of the Department" and that "[ ]the academic and administrative flaws of the Department cannot be rectified unless there are significant personnel changes."  The Committee therefore recommended, inter alia, the non-renewal of the employment contract with four of the teachers in the Department, including respondents 2 and 3.  Regarding respondent 1, who had tenure, the recommendation was "to examine the accepted means of dealing with these kinds of cases in the University, in order to prevent a repetition of the situation in which the person who founded and headed the Department continues to function as a source of opposition to the incumbent Department head, charged with the rehabilitation of the Department." The Report included quotations, albeit anonymous, from testimony and documents submitted to the Committee; the Committee stated at the outset that the anonymity was mandated by "its promise to preserve full confidentiality regarding the particulars of the testimony and those who testified, to enable the interviewees to speak frankly, freely and fearlessly."

3.    With the submission of the Report and in view of its implications for the respondents' continued employment, the petitioner initiated a hearing process, before deciding on the matter.  The Head of the Theatre Department at that time, Prof. Menachem Mor, presided over the first stage of the hearing, prior to which the Committee's Report was submitted to the respondents.  Their attorney, Adv. Lin, also asked to receive all of the documents submitted to the Committee, as well as the protocols of its deliberations. In the wake of this request the petitioner permitted the respondents to examine various documents, including correspondence, summaries of the Teaching Committee's meetings, and letters of complaint. It also gave them copies of the protocols from the meetings of the Investigation Committee in which the respondents had participated.  On the other hand, the petitioner refused to provide the respondents with the other protocols of the Committee's sessions, as well as other documents submitted to it, noting that the large number of documents that the respondents had already received, along with the contents of the Committee's Report itself, were sufficient for them to properly present their case. The respondents submitted their pleadings orally and in writing to Prof. Mor based on the material they had received.  On 6 May 2004 Prof. Mor notified the respondents that his recommendation to the Dean of the Faculty was that the Investigation Committee's recommendations should be implemented as far it concerned them. Regarding respondent 1 the recommendation was to find a "suitable employment alternative in the framework of the University in another department."  Regarding respondents 2 and 3 his recommendation was not to renew their appointments for the 5765 [2004-5] academic year. The respondents submitted their objections to these recommendations to the head of the Humanities Department at the time, Prof. Yossi ben Artzi, complaining that they had not received all of the relevant documents that served the Investigation Committee in its work.  In his response of 20 May 2004, the petitioner's attorney submitted a complete list of documents that the petitioner had refused to disclose, briefly describing their contents and the reason for their non-disclosure.  Following is the list of the documents and the reasons given, as stated:

  1. Five protocols of the meetings of the Investigation Committee in which the respondents did not testify. The petitioner claims that these protocols cannot be disclosed for fear of the revealing the identity of those who gave information in those meetings.
  2. Decisions of the Council for Higher Education regarding the Departmental curriculum – "not relevant".
  3. Two letters to the Dean from teachers in the Department, and the Dean's response to one of them, and a letter to the Committee from a Department teacher. The petitioner claimed that they could not be disclosed so as not to reveal the identity of their writers.
  4. Four letters of complaint against the teachers of the Department, including respondents 2 and 3.  The petitioner contended that they could not be disclosed so as not to reveal the identity of the students who complained.
  5. A teacher's letter concerning a student who had complained.  The petitioner contended that they could not be disclosed so as not to reveal the teacher's identity.
  6. A report submitted to the Committee by a Department teacher. The petitioner contended that it could not be disclosed so as not to reveal the identity of the person who gave the information.  

At the end of the hearing process, the Dean of the Faculty of Humanities announced his decision to endorse the conclusions of the Head of the Theatre Department. Regarding the demand for disclosure of documents, the Dean stated in his decision, delivered to each of the respondents, that "the majority of the documents submitted to the Committee were handed over to you at your request and there were substantive and justified reasons for withholding the particular documents that you did not receive. These reasons were explained to Adv. Lin, and there was no intention of turning them into 'mystery files' for you. At all events, I believe that the claims included in these documents were presented to you and that you were given a fair opportunity of responding to them."  An additional and final proceeding pertaining to the hearing was held in the presence of the Rector of the University, Prof. Aharon ben Zeev. He too rejected the respondents' claims and endorsed the decisions of the Department Head and the Dean (see his letter to the respondents, dated 13 June 2004).

The proceedings in the Labour Court  

4.    Upon receiving the Rector's decision, the respondents petitioned the Regional Labour Court requesting temporary measures. Their main request was for an injunction against the removal of respondent 1 from his position and against the dismissal of respondents 2 and 3 (two other lecturers affected by the Report joined these proceedings, but subsequently decided not to pursue them). In that framework they also requested an Order instructing the petitioner to provide them with all the material relied upon by the Investigation Committee in its Report and its conclusions, including protocols of the Committee's deliberations, testimonies that were brought before it, and any other document relied upon. The petitioner objected to the application, but agreed to transfer all the requested documents in a sealed envelope for the inspection of the Regional Labour Court, and this was done. In its decision of 14 July 2004 the Regional Labour Court (Judge M. Spitzer, employees' representative Mr. Y. Baadni and employers' representative Ms. H. Blumel) rejected the respondent's petition for temporary measures, ruling, inter alia, that the Report of the Committee had quoted statements made by the witnesses who appeared before it, and by doing so had struck an appropriate balance between the interests of the parties. At all events, the Regional Labour Court ruled that the subject of how much information should have been given to the respondents during the Committee's deliberations and at the hearing stage would be adjudicated in the principal proceedings, as the material before them sufficed for purposes of the current proceeding. The Court further ruled that the petitioner had provided them with extensive and substantive material and that "the substance and spirit of the matter had been brought to their attention". Accordingly, the Labour Court further determined that it would appear that the documents to which the respondents did not have access did not prejudice their right to state their case in the hearing process.  In its decision, the Labour Court further stressed that the respondents "had received the right to a hearing on three occasions, two of which were appeal tribunals." The application for leave to appeal filed by the respondents in the National Labour Court was rejected on 29 July 2004, and two months later, on 30 September 2004, the petitioner terminated the employment of respondents 2 and 3 upon the expiry of their letters of appointment.  As for respondent 1, his employment in the Theatre Department was discontinued and he began teaching in the Department of General Studies at the University.

Despite the rejection of their application for temporary measures, the respondents filed suit in the Haifa Regional Labour Court against the petitioner for having terminated their employment in the Theatre Department, requesting, inter alia, to be reinstated in their positions in the Department (LF 2521/04). In the course of the preliminary proceedings, the respondents again applied for the disclosure of all of the material submitted to the Investigation Committee, as well as the protocols of its meetings.  In its decision of 29 March 2005 the Haifa Regional Labour Court (Judge M. Spitzer) dismissed the application. It ruled that numerous documents were given to the respondents before filing suit and numerous citations from the witnesses' testimony had been cited in the Committee's Report, and that all of these sufficed to allow for an adequate response on the part of the respondents to the claims against them. The court further noted that in the judgment of the  National Labour Court in LabA 1185/04 Bar Ilan University v. Kesar [1], the Court had ordered Bar Ilan University to disclose the protocols of the Appointments Committee in the framework of a legal proceeding initiated by two faculty members against the decision of the University not to promote them.  The court distinguished between the two cases, pointing out that Bar Ilan University v. Kesar  involved the Appointments Committee, whereas the case at hand involved an Investigation Committee that  was competent only to make recommendations. To complete the picture, it is noteworthy that the Kesar case is also being adjudicated before this Court (HCJ 7793/05), in a petition filed by Bar Ilan University as well as other academic institutions that joined the Kesar proceeding in the National Labour Court.

5.    Having been granted leave to appeal, the respondents appealed this interlocutory decision in the National Labour Court, and the appeal was allowed. In its judgment of 19 December 2005 (LabA 371/05, Judges S. Adler, E. Rabinovitz, N. Arad, the workers’ representative Mr. S. Guberman and the employers' representative, Mr. Tz. Amit), the National Labour Court ordered the petitioner to submit all the protocols from the meetings of the Investigation Committee for the respondents' examination. It did, however, permit the petitioner to delete the witnesses' names and any other identifying particulars.  As for the additional material submitted to the Investigation Committee, and not submitted for the respondents' examination (the letter from three Department teachers and one of the Dean's responses, four letters of complaint against the Department teachers, a letter of a Department teacher regarding a student's letter of complaint, and a report submitted by the Department teacher), the National Labour Court ruled that these documents might contain information concerning third parties, or that the disclosure of which might infringe the right of privacy of others, and that they should therefore be submitted for examination by the Regional Court, which would then rule on the "deletion of details that might be harmful to parties not connected to the proceedings, and on the possibility of allowing the disclosure of the documents [to the respondents] without such disclosure harming the interests of a third party." The National Labour Court based these rulings on its judgment in Bar Ilan University v. Kesar [1], stressing that insofar as the petitioner's actions in its employer capacity were concerned, the petitioner was in fact a hybrid body, and in that sense it was governed by the rules binding an administrative authority vis-à-vis anyone who may be harmed by its decisions.  This included the obligation to disclose relevant documents and to allow their examination.  In view of the fact that the Report of the Committee mentioned that its conclusions were based on the testimony heard before it, the court further affirmed the relevancy of the material requested by the respondents, including protocols of the meetings in which the testimony was given.  The National Labour Court rejected the petitioner's claim that the documents not presented for the respondents' examination were privileged by virtue of the Committee's promise of confidentiality to the witnesses, and it also dismissed the contention that violation of this promise constitutes a violation of the obligation of confidentiality within the meaning of s. 8(2) of the Protection of Privacy Law, 5741-1981 (hereinafter:  "Protection of Privacy Law").  In this context the National Labour Court held that "the Investigation Committee had voluntarily spread a cloak of secrecy over its deliberations," and that there was no normative source mandating such secrecy. It further ruled that a promise of this kind contradicts public policy "and is even tainted by illegality in view of the infringement of [the respondents'] privacy, and the impairment of their ability to refute the accusations leveled against them in the Committee's hearings, and to contest the Committee's conclusions in a legal proceeding.  Under the circumstances of this case the promise of confidentiality given to the witnesses may be seen as a violation of the obligation of good faith owed by the University to its workers, who were the direct victims of the Committee's recommendations…."

Nevertheless, and despite its conclusion that the petitioner had not succeeded in identifying a normative source for the privileged status of the documents, the National Labour Court felt that there were grounds for striking a balance between the competing interests, in reliance on its judgment in Bar Ilan University v. Kesar [1].  The respondents' personal and direct interest in the disclosure of the documents had to be balanced against the damage likely to be caused to the witnesses who appeared before the Committee, as well as the damage to the public interest in the event of witnesses refraining from giving information to investigation committees for fear that promises of confidentiality would not be honored.  In view of these balances the National Labour Court attached the aforementioned conditions to the transfer of protocols and additional materials.

Hence the petition before us.

The pleadings of the parties  

6.    The petitioner claims that the judgment of the National Labour Court is of broad and fundamental significance, and that it contains substantive legal mistakes which must be rectified in the interests of justice.  While agreeing that as an institution for higher education it fulfills public roles, the petitioner argues that this is not sufficient to render it subject to obligations in the area of administrative law, including the obligation to allow individuals to examine its documents, especially where the imposition of these duties is not accompanied by the correlative authorities and powers conferred on an administrative authority. The petitioner's central claim is that the documents not disclosed to the respondents should be granted privileged status, by virtue of the Committee's explicit promise to the witnesses, as specified in the Committee's Report.  The petitioner claims that a breach of this promise violates the witnesses' right to privacy, a right which is protected on three normative levels: constitutional, statutory, and case-law. The normative constitutional source is s. 7 of Basic Law: Human Dignity and Liberty; the normative statutory source is ss. 2(8) and 2(9) of the Protection of Privacy Law; the normative case-law source is based on an analogy from this Court's rulings that established the privileged status of information and sources of information in cases of special relations of trust or for purposes of protecting the privacy of third parties who are not direct parties to the litigation.  In this context the petitioner claims that its obligation of confidentiality derives not only from the promise of confidentiality given by the Investigation Committee to the witnesses, but also from its obligation as an educational institution to maintain the confidentiality of the private affairs of the students, and from its obligation as an employer to maintain the confidentiality of the private affairs of its lecturers,  whose testimony and complaints are included in the remaining documents that were not given to the respondents. The petitioner further argued that the National Labour Court erred in holding that the Committee's promise of confidentiality contradicts public policy, for in fact, such a promise is consistent with the fundamental principles of Israeli law and the protection it affords to individual privacy. The petitioner further stresses that compelling it to disclose additional material would decrease the future readiness of students and lecturers to cooperate with voluntary investigation committees at the University. The petitioner claims that the establishment and efficient functioning of such committees are a clear public interest and to that end it is necessary to ensure the confidentiality of the information submitted to them, to the extent that the committees deem necessary. 

The petitioner further claims that the balance of interests, too, weighs against issuing an order to disclose the documents. According to the petitioner, disclosure of material potentially prejudicial to a third party should be permitted in rare cases only, after the material has been examined and the third party heard.  Even then, its disclosure is justified only when the information is essential, with no evidentiary substitute, and its disclosure does not disproportionately infringe the third party's privacy. The petitioner contends that in the present case, the proper balance dictates the conclusion that the potential infringement of the witnesses' privacy and the damage to its ability to establish investigation committees in the future far outweighs the damage caused to the respondents by the failure to disclose additional documents. It further emphasizes that the respondents received numerous documents and that the multiple citations from the witnesses' testimony in the Report likewise provide a suitable alternative to full disclosure of the contents of the testimony.  In this context the petitioner also points out that the protection of confidentiality is particularly important in the case at hand due to the Committees' findings regarding the "reign of terror" imposed in the Department by the respondents. What is more, the respondents' suit to be restored to their places of work is currently pending in the Regional Court, and many of the witnesses are dependent upon the respondents for their livelihood, even outside the University precincts.  The petitioner claims that "all of the undisclosed witnesses from among the teaching and the administrative staff continue to work in the Department and are genuinely frightened by the prospect of a return of the 'reign of terror, fear and intimidation'." The petitioner further argues that that the National Court had not heard the position of the witnesses and the complainants and that unlike the Regional Court, the National Court had not examined the documents.  For all these reasons, the petitioner argues that the judgment of the National Court should be set aside, or alternatively, that an order should be given to submit the documents for the examination of an expert, who would give his opinion on the adequacy of the material handed over to the respondents for the purposes of conducting their suit. As a further alternative, the petitioner requests that the judgment of the National Labour Court be set aside and the file returned to it for renewed deliberation after it examines the documents and notifies all the potential victims of their right to object to the submission of information. The petitioner also stated that it was prepared for this Court to examine the documents that had been submitted for the examination of the Regional Court. 

7.    The respondents claim that the petition should be rejected in limine due to the petitioner's lack of clean hands for having omitted certain details from its petition, for the delay in filing, and for its failure to comply with the decisions of the Regional Labour Court. On a substantive level, the respondents claim that the National Labour Court's decision was consistent with principles of labour law and that there were no grounds for intervention. The respondents claim that the protocols and documents they seek are essential for proving their claim that the Investigation Committee's Report was replete with inaccuracies that raised doubts about the authenticity of the testimony and the documents submitted to it. Furthermore, the documentation would enable them to confront the allegations against them on a personal level and prove that the Investigation Committee was established and its proceedings conducted with the express purpose of removing them from the Department. They further claim that the petitioner's hybrid status and its intensified obligation of good faith as their employer precluded it from refusing to disclose the documents, and that this obligation was applicable to the petitioner even were it not classified as a hybrid body.  The respondents further contended that the petitioner had not shown any basis for the alleged privilege, and that at all events the promise to the witnesses, which had not been proved, did not extend beyond an obligation of confidentiality that did not reach the level of privilege.  They claim that the National Court rightly ruled that the promise made to the witnesses contradicted public policy and that testimony and complaints before the Committee did not fall within the rubric of "the private affairs" of the witnesses and the complainants within the meaning of s. 2(8) of the Protection of Privacy Law. Alternatively they contend that since the petitioner had violated the respondents’ right to privacy by the actual disclosure of the Committee's Report, it had no right to claim the protection of privacy of others.  Either way, the respondents maintain that their right to a fair and just trial overrides the right of the witnesses to privacy, and they stress that the National Court was under no obligation to examine the documents before deciding the question of its disclosure.  Moreover, the respondents argue that a distinction must be made between the protocols and the other documents submitted to the Committee, for no promise of confidentiality could have been given regarding these documents unless they had been intentionally "ordered", and to the extent that such a promise was given, its basis was illegitimate.  Regarding the petitioner's claim that the disclosure of the documents would compromise its ability to establish voluntary committees in the future, the respondents argue that no legitimate interest in privilege can be recognized with respect to an investigation committee that was illegally established without the requisite authority and the conclusions of which had been determined in advance. At all events, they emphasize that in balancing the interests in this context, their right to a fair trial should prevail. Furthermore, there is no basis for the petitioner's reliance on s. 2(9) of the Protection of Privacy Law as a source for privilege, and this claim was first raised by the petitioner in a supplementary pleading filed in the current petition.

The proceedings in this court

8.    In the course of the hearing in this court on 24 April 2006 the parties agreed that the privileged material would be handed over to the respondents' attorney, Adv. Lin, who would examine the material without transferring it to the respondents and would then inform the court whether the documents could benefit the respondents, or whether the Committee's Report provided an adequate reflection of the testimony, and that it would suffice.  Having examined the material, Adv. Lin gave notice that the documents were required for the respondent's conduct of their suit in the Labour Court and that for that purpose the contents of the Report would not suffice.  Subsequently, in an additional hearing on the petition on 12 September 2006, the petitioner gave notice that it would allow the respondents to examine four protocols of the Investigation Committee, which recorded the testimonies of four witnesses.  The respondents were not satisfied, however, and we therefore ordered the parties to complete their written pleadings to the extent that they pertained to the other protocols and the additional documents that had yet to be submitted for their examination. The petition was heard as though an order nisi had been issued, and with the parties' consent an interim order was issued, staying the execution of the National Court's judgment until judgment was given on the petition.

Deliberation

General – privileges and the importance of the right to disclosure and examination of documents

9.    The weighty subject raised by this petition is not necessarily limited to the area of labour relations, and we have therefore decided to adjudicate the case on its merits. Having examined the case in all the various aspects raised by the parties, we have reached a result that is fundamentally similar to the result reached by National Labour Court. Our reasoning however differs somewhat from the reasoning that served in the Labour Court's judgment.

In this case, the arena in which the question of privileged documents, including the protocols of the Investigation Committee, arises is the arena of a legal proceeding. As noted, the proceeding is being conducted in the Haifa Regional Labour Court, which is currently hearing the respondents’ suit against the petitioner. In that framework the respondents are challenging the endorsement of the Investigation Committee's conclusions and the subsequent decision not to renew the employment of respondents 2 and 3, and to transfer respondent 1 from the Theatre  Department to the Department for General Studies.  It is important to emphasize at the outset that to the extent that our concern is with a proceeding being conducted in this arena, i.e. a proceeding being adjudicated by a statutory judicial tribunal, the starting point for disclosure and examination must be that of maximum disclosure and the broadest possible examination of the information relevant to the dispute  (see: LCA 4999/95 Alberici International Foreign Partnership registered in Israel v. State of Israel [2], at p. 44; Uri Goren,  Issues in Civil Procedure 194 (9th ed. 2007); LabA 482/05 Mashiah v. Israel Leumi Bank Ltd. [3], atpara. 4; see also Adrian Zuckerman Zuckerman on Civil Procedure, para. 2.189-2.193 (2nd Ed., 2006) (hereinafter: Zuckerman)). This point of departure stems from the basic principles upon which the law is founded, and from the central goal of doing justice, which is the goal of the judicial process.  The doing of justice is based on the disclosure of the truth, thereby serving the interest of the individual litigant and the public interest in ensuring the "proper functioning of the entire social structure…" (MP 298/86 Zitrin v. Disciplinary Tribunal of Bar Association, Tel-Aviv District [4], at p. 358; see also LCA 1412/94 Hadassah Ein Karem Medical Association v. Gilead [5], at p. 522; LCA 6546/94 Bank Iggud LeYisrael v. Azulai [6], at p. 61; LCA 4708/03 Hen v. State of Israel- Ministry of Health [7], at para. 17; LCA 2235/04 Israel Discount Bank Ltd. v. Shiri [8], at para. 10; LCA  5806/06 Estate of Michael Nemirovsky (dec.) v. Shimko [9], at para. 6.) The disclosure of the truth is dependent upon a fair hearing that accommodates the presentation of the entire factual evidentiary foundation, which affords the party the opportunity to properly contend with the claims of the opposing party. The rules of procedure in civil law (including labour law) governing disclosure and examination of documents are intended to serve the overall aim of discovery of the truth; this is also true of the rules of evidence which inter alia establish the right to summon any person to testify or to submit evidence, and that the person so summoned is obliged to comply with the summons as long as he has not shown a legal justification for a refusal to do so (see E. Harnon,  The Law of Evidence, pt. 2, at p. 67 (1985); Hadassah Ein Karem Medical Association v. Gilead [5], at p. 522; Bank Iggud LeYisrael v. Azulai [6], at p. 61; Israel Discount Bank Ltd. v. Shiri [8], at para. 10; LCA 2498/07 Mekorot Water Company Ltd v. Bar [10], at para. 9.) The procedural rules requiring the litigant to disclose and accommodate the examination of documents in his control, also promote the efficiency of the proceeding and enable its conduct "with open cards, so that each party has advance knowledge of the other party's documents" (LCA 4234/05 United Bank Mizrahi Ltd. v. Peletz [11], at para 6; see also LCA 4249/98 Suissa v. Hachsharat HaYishuv Insurance Company Ltd. [12], at p. 520; LCA 291/99 D.N.D. Jerusalem Stone Supply v. V.A.T. Director  [13], at p. 237.)

10. Nevertheless, the Israeli legal system does not advocate a total principle of revealing the truth and doing justice at any price, in the sense of fiat justicia et pereat mundus ("Let justice be done, though the world perish") (see Hadassah Ein Karem Medical Association v. Gilead [5], at p. 522, and Bank Iggud LeYisrael v. Azulai [6], at p. 61). It acknowledges the existence of other competing rights and values which are of importance to the individual and to society and worthy of protection, even if they are in conflict with the principles of broad disclosure forming the basis of our system (see CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [14], at para. 44; LCA 7731/04 State of Israel-Ministry of Health v. Estate of Avital Halperin (dec.) [15],  at para.18; LCA 7114/05 State of Israel v. Hizi [16], at para.5; Menahem Elon, "Law, Truth, Peace and Compromise: the Foundations of Law and Society (Hebrew), Bar-Ilan Studies in Law 14, 269, at 275 (1998)). The protections afforded to individual rights and public interests, when they are liable to be harmed as a result of unlimited disclosure in the course of a trial, assume various forms and their intensity is not uniform. In this context a distinction must be made between privilege and inadmissibility, both of which constitute a relative and occasionally absolute barrier to the submission of evidence in a judicial proceeding, though differing in terms of their essence and the scope of protection they provide.  Privilege prevents the submission of evidence and its examination by the other party. Inadmissible evidence  on the other hand, may be submitted and even examined by the other party, but cannot be relied upon for purposes of a finding in a trial (on the distinction between them see Bank Iggud LeYisrael v. Azulai [6], at p. 64; Alberici International Foreign Partnership registered in Israel v. State of Israel [2], at p. 47; Israel Discount Bank Ltd. v. Shiri [8], at paras. 16-17; AAA 6013/04 State of Israel-Transport Ministry v. Israeli News Co. Ltd [17], at para. 19; LabA 114/05 Mekorot Water Company Ltd. v. Levi [18]; regarding the provisions establishing admissibility as distinct from privilege see e.g. s. 30, State Comptroller Law, 5718-1958 [Consolidated Version] (hereinafter: "State Comptroller Law"); s. 10, Internal Audit Law, 5752-1992 (hereinafter: "Internal Audit Law"); ss. 14 and 22, Commissions of Inquiry Law, 5729-1968 (hereinafter: "Commissions of Inquiry Law"); s. 79 C(d), Courts Law [Consolidated Version], 5744-1984 (hereinafter: "Courts Law"); s. 538(a), Military Justice Law, 5755-1955 (hereinafter: "Military Justice Law")).  In this context it is also important to note the distinction between privilege and inadmissibility on the one hand, and the obligation of confidentiality on the other hand.  As distinct from privilege and inadmissibility, the obligation of confidentiality does not as such prevent the submission of evidence in a judicial proceeding, unless, as explained below, it is an obligation (contractual or statutory), the purpose of which justifies endowing it with a privileged status (see Bank Iggud LeYisrael v. Azulai [6], at p. 66; LCA 1917/92 Skoler v. Gerbi [19], at pp. 771-772).

11. Statute-based privileges appear in the Evidence Ordinance [New Version] 5731-1971 (hereinafter: "Evidence Ordinance"). S. 44 of the Evidence Ordinance establishes a privilege for the state in evidence the disclosure of which is liable to harm the security of the state or the foreign relations of the state. S. 45 establishes a privilege for the benefit of the public in relation to evidence the disclosure of which is liable to harm an important public interest. Ss. 48 – 51 of the Evidence Ordinance establish other privileges based on special relations of trust between those summoned to testify and disclose evidence and those to whom the testimony or evidence relates, such as the relations between an attorney and his client, a minister of religion and a person who confessed in his presence, and between a doctor, psychologist and social worker and those requiring their services.  Regarding privileged evidence of the type mentioned in ss. 44 and 45, the Evidence Ordinance establishes a mechanism for examination and review and also establishes a balancing formula in accordance with which the court is authorized to suspend the privilege and order the disclosure of the evidence in cases in which it is persuaded that "the necessity to disclose it in the interests of doing justice outweighs the interest in its non-disclosure". In other words, these privileges are relative and in certain cases may be overridden by the interest of doing justice (see e.g. MApp 838/84 Livni v. State of Israel [20]; CrimApp 1924/93 Greenberg v. State of Israel [21]; CrimA 889/96 Mazrib v. State of Israel [22]). The same applies to the privileges under ss. 49 – 50A of the Evidence Ordinance. On the other hand, privilege against disclosure deriving from attorney-client relations (s. 48 of the Evidence Ordinance) and the disclosure of evidence by a minister of religion (s. 51 of the Evidence Ordinance) is absolute, and its application is not subject to any balancing formula, nor does the court have any authority to order its removal (see Estate of Michael Nemirovsky (dec.) v. Shimko [9], at paras. 6-7). Another example of statutory privilege appears in the Patient's Rights Law, 5756-1996 (hereinafter: "Patient's Rights Law") relating to a report of a control and quality committee.

Alongside the statutory privileges enabling the non-submission and non-disclosure of evidence, Israeli law also recognizes a number of privileges that originate in case law. The courts have conferred privileged status on documents prepared in anticipation of a trial (see CA 407/68 Zinger v. Beinon  [23]; CA 407/73 Goanshere v. Israel Electric Company Ltd. [24]; Hadassah Ein Karem Medical Association v. Gilead [5], at pp. 522-523), and likewise regarding documents intended for use in an alternative dispute resolution mechanism outside court (see Israel Discount Bank Ltd. v. Shiri ).  The Supreme Court has also recognized a relative privilege against the disclosure of a reporter's sources, in cases in which the public interest in protecting the sources of information overrides the interest in receiving the evidence for purposes of disclosing the truth (see Zitrin v. Disciplinary Tribunal of Bar Association, Tel-Aviv District [4]). Case law also recognized another relative privilege against the disclosure of evidence with respect to the requirement of a bank to disclose documents pertaining to a client's account (see Skoler v. Gerbi [19]). In this context the court derived the privilege from the bank's obligation of confidentiality towards its customers, and it recognized that without such privilege, the obligation of confidentiality might be devoid of any content. In the words of the Court:

'To say that the banking system, whose maintenance is in the interest of both the banks and the customers, is based on the bank's obligation of confidentiality towards its customers, would be meaningless if it does not necessarily imply the existence of privileged relations between the bank and its customers, which means exempting the bank from the obligation (binding every witness) to disclose to the court all of the information relevant to the hearing.  This is the case even though the Evidence Ordinance does not have a provision regarding privilege of that nature (Skoler v. Gerbi [19], at p. 772).'

By way of an interim summary, it may be said that in order for a litigant in a judicial proceeding to be exempted from the obligation to disclose relevant evidence at his disposal, he must prove a privilege recognized by law or by accepted case law that allows him to withhold it (see Joel Sussmann, Civil Procedure, 7th ed., 1995, at pp. 440-441). Regarding the burden of proof on the litigant claiming the privilege see: Hadassah Ein Karem Medical Association v. Gilead [5], at p. 524; Harnon, The Law of Evidence, 67; Yaakov Kedmi, On Evidence,  Pt.2, 869 (2004)). Having proved the existence of that privilege,  and to the extent that the privilege is a relative one, the litigant must then show that the interest in the suppression of the evidence outweighs the need to disclose it for the purposes of doing justice.

From the general to the specific

12.  The petitioner in the present case refuses to disclose to the respondents some of the protocols recording the deliberations of the Investigation Committee and additional documents that were submitted to the Committee. It claims that the documents warrant privilege and that, in reliance on the decision of the Regional Court, in view of the extensive material placed at the respondents' disposal, including the Report of the Investigation Committee itself, the evidence requested is not such as would assist the respondents in the conduct of their suit; for that reason, too, there is no obligation to disclose it.  The respondents on the other hand claim that the evidence is relevant and essential to the litigation between themselves and the petitioner and does not warrant any privilege; they persist in this claim even after their attorney was permitted to examine those pieces of evidence during the course of this proceeding, pursuant to the agreement reached by the parties.

Before addressing the question of privilege, we should first examine the petitioner's claim that the respondents are making much ado about nothing, and that the evidence in dispute actually adds nothing to what has already been disclosed to the respondents. In this context the petitioner argues that the National Labour Court reached its conclusion regarding the relevance and importance of the requested documents without having examined them, emphasizing that the Regional Labour Court had examined the documents and decided that "even without disclosure of the additional requested material, there was an appropriate balance between the parties' conflicting interests". The petitioner further adds and stresses the rule that the trial forum has discretion regarding the disclosure of documents and the scope of disclosure, and the appeal forum will interfere in the decision only in exceptional cases (see LCA 2534/02 Shimshon v. Bank HaPoalim Ltd. [25], at p. 196; Shlomi Local Council v. Shechtman and Co. Building and Development Company  [26]; see also LA 740/05 Pas v. General Health Services [27]; per President S. Adler, LabApp 494/06 State of Israel v. Evenchik   [28], at para.2; Yitzchak Lobotzky, Procedure in Labor Law, ch. 11, at pp. 13-14 (2004)). The provision of reg. 46(a) of the Labour Court Regulations (Procedure), 5752-1991 (hereinafter: Labour Court Regulations) regulate the disclosure and examination of documents for proceedings being conducted in the Labour Court, and it authorizes the court or the registrar "to grant an order for the submission of additional details, and upon a litigant's application, for the disclosure and examination thereof, if it deems it necessary for the purpose of efficient litigation or to save costs." Based on the basic principles of the system we discussed above, and in order to realize the goal of the judicial proceeding, which strives to reveal the truth, the National Labour Court has ruled on a number of occasions that in granting an order for disclosure or examination under reg. 46 of the Labour Court Regulations, it must ensure that there be "as broad a disclosure as possible of the information relevant to the dispute" (Mashiah v. Israel Leumi Bank Ltd. [3], at para. 4; see also in Evantchik [28], para. 10).  This approach is consistent with the fiduciary relations underlying the worker-employer connection, which are also a source for the obligation of disclosure (see Estate of Michael Nemirovsky (dec.) v. Shimko [9], para. 16). This same approach found expression in regs. 112-122 of the Civil Procedure Regulations, 5744-1984, as interpreted in  the judgments of the civil courts, to the effect that the litigant must "disclose all documents that may reasonably be presumed to include information that would allow a party, directly or indirectly, to promote his interest in the dispute" (Bank Iggud LeYisrael v. Azulai [6], at p. 60; see also Goren,  Issues in Civil Procedure, at p. 196; Dudi Schwartz, Civil Procedure – Innovations, Processes and Trends, 2007, at p. 321). In my view, insofar as the protocols of the Investigation Committee that include direct testimony about the respondents' conduct in the course of their work in the Theatre Department, as well as letters of complaint in that regard that were sent by the teachers and students are concerned, there can be no doubt that they constitute extremely relevant evidence, for they go to the very heart of the dispute being litigated between the respondents and the petitioner in the Regional Labour Court. This being the case, I think that the Regional Labour Court erred in its ruling - which is relied upon by the petitioner - to the effect that the material already submitted was sufficient for the respondents, and in determining that the Investigation Committee's Report, upon which the petitioner's decisions concerning the respondents was based, includes a fair number of citations from the material that was not submitted, and that their ability to relate to the claims against them was therefore not prejudiced. The Regional Labour Court's approach to this matter is totally unacceptable to me, and I see no reason why a litigant should have to make do with a processed version of the relevant evidentiary material (the Report).  In this context it should be recalled that this evidence was the basis of the conclusions included in the Report against the respondents.  For example, the Report stated that "the various oral and written testimonies indicated two conflicting approaches" in the Theatre Department and the Committee had to decide between these approaches "in accordance with the overall picture emerging from the direct and indirect testimony" (pp. 3-4 of the Report).  The Committee further noted that it had at its disposal "conclusive testimony in written documentation" and that its decisions relied on "the weighing up the range of testimony in each area, as well as on the written material" (pp. 3 and 6 of the Report).  Bearing this in mind, as well as the respondents' claim that in the first place, the Committee was established for the purpose of reaching precisely those conclusions and thereby orchestrate their removal from the Theatre Department, one can hardly overstate the importance that they attributed to receiving the actual testimony.  Therefore, the National Labour Court was correct in ruling that these were relevant testimonies.

    13.  Another claim made by the petitioner relating to the "outer frame" of the matter of privilege from a procedural perspective is that the National Labour Court erred in its failure to examine the evidence before ordering its disclosure (subject to the limitations it set), whereas the Regional Labour Court had examined this evidence, and only thereafter did it conclude that there were no grounds for its disclosure.  This claim is of no avail to the petitioner in the present circumstances either. Reg. 119 of the Civil Procedure Regulations (which has no parallel in the Labour Court Regulations but which may possibly be applied in these proceedings by virtue of s. 33 of the Labor Courts Law) provides that when a claim of privilege is raised in the framework of an application to grant an order for the submission of a questionnaire or examination of documents, the court is entitled to "examine the document in order to decide whether the claim has substance." In the present case, the Regional Labour Court did actually examine the documents that the petitioner had refused to place at the respondents' disposal, but as will be noted, this did not place it in any better position than the National Labour Court.  The reason for this is that even after that examination, the Regional Court did not rule on the question of privilege. In dismissing the respondents' application for disclosure and examination it ruled only that "even without disclosure of the additional material, an appropriate balance is maintained between the parties' conflicting interests'."  It did not, however, elaborate on the nature of the balance upon which it relied. The National Labour Court, on the other hand, considered the question of privilege, even though for the purposes of its decision it did not deem it necessary to examine the documents in dispute.  It examined the question of the existence of a normative source for the privilege of the documents, given the fact that what was involved were the protocols of the Investigation Committee and the letters of complaint that it had received, and it concluded that the petitioner had not succeeded in showing any normative source for conferring privileged status on these documents. It therefore deemed that the Regional Court should have applied the normal rules and ordered the disclosure and the examination of the documents, subject to the qualifications that it stipulated.  The National Court did not find it necessary to examine the documents in dispute, but this does not impair the decision and justify our intervention. In this sense the case at hand differs from that of Estate of Michael Nemirovsky (dec.) v. Shimko [9]. The question there was whether the privilege recognized by case-law applied to documents prepared in anticipation of a judicial process. Addressing the provisions of reg. 119 of the Civil Procedure Regulations, this court ruled that the lower court erred in accepting the claim of privilege and in its classification of the disputed documents as documents prepared in anticipation of a judicial process, without having actually examined them in order to determine their specific nature.

14.  As we have said, the documents that the petitioner claims are privileged are letters of complaint against the respondents as well as protocols of the Investigation Committee's deliberations recording the testimony of the petitioner's teachers and students (with the exception of four protocols recording four testimonies which, after additional examination, the petitioner consented to submit to the respondents in the course of these proceedings).   For the normative source of this privilege, the petitioner relies upon the legal and constitutional right to privacy of witnesses and complainants, and the public interest in the confidentiality of information submitted to voluntary investigation committees established by academic institutions.  The constitutional source relied upon by the petitioner in this context is s. 7 of Basic Law: Human Dignity and Liberty, which entrenches the right to privacy as a basic constitutional right, and the statutory source upon which the petitioner relies is the Protection of Privacy Law.

In defining the parameters of our discussion of privilege, it should be emphasized that the normative sources referred to by the petitioner have not, to date, yielded any statutory or case-law privilege in Israeli law with respect to testimony or documents submitted to an investigation committee of an academic institution.  We are therefore dealing with an assertion of privilege by the petitioner, even though it cannot refer to any existing privilege recognized in the Israeli laws of privilege.  The petitioner is actually attempting to create a new judge-made privilege which, it claims, derives its validity and its justification from the force of the constitutional right to privacy granted to complainants and witnesses appearing before investigation committees, and from the public interest in the operation of effective investigation committees of this kind in academic institutions. Furthermore, the petitioner argues that the promise of confidentiality, which it claims was given by the Investigation Committee to the witnesses and complainants, was intended to promote the aforementioned public interest and to protect the right to privacy of the witnesses and complainants.  As such, this promise should be regarded as an additional source in support of privilege.

15. Insofar as we are dealing with the establishment of a new case-law privilege, it must again be stressed that privilege is the exception; the rule is the requirement for the disclosure and transfer of most of the relevant evidence, with the aim of discovering the truth and doing justice in the judicial process. In  keeping with this principle, the case-law has stated that its "treatment of privilege would be cautious" and that privilege would only be recognized in the special and exceptional cases, since it is regarded as a "barrier to the clarification of the truth and an obstacle to the doing of justice" (Shoshana Netanyahu "On Developments in the Matter of Professional Privileges" Sussman Volume, 297, 298 (1984) (hereinafter: Netanyahu); Hadassah Ein Karem Medical Association v. Gilead [5], at p. 522; see also Zitrin v. Disciplinary Tribunal of Bar Association, Tel-Aviv District [4], at p. 359; LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency Ltd. [29], at p. 664; Israel Discount Bank Ltd. v. Shiri [8], at para. 11; Mekorot Water Company Ltd. v. Bar  [10],  at para. 9); Aharon Barak "Law, Adjudication and the Truth" Mishpatim 27 (1996), at pp. 11, 15); Harnon, Evidence, 67).  A party claiming privilege must therefore prove not only the existence of a legally-recognized privilege, but also the existence of a "more important and significant consideration pertaining to public interest" that justifies the application of the privilege in cases in which the court has discretion as to its application (see Netanyahu, p. 298; Bank Iggud LeYisrael v. Azulai [6], at p. 62; Israel Discount Bank Ltd. v. Shiri [8], at para.11).  It was further ruled that the court must exercise caution when asked to create new privileges or develop existing privileges by way of case-law (see and compare: Hadassah Ein Karem Medical Association v. Gilead [5], at p. 525; Israel Discount Bank Ltd. v. Shiri [8], at para.11; Harnon, Evidence p. 67). It must evaluate the degree of harm that the disclosure may cause to certain social values and to the respective rights of the public and the individual, as against the importance of revealing the truth and doing justice (see Israel Discount Bank Ltd. v. Shiri [8], at para.11). The point of balance between the conflicting interests is determined as a function of their relative social importance (Estate of Michael Nemirovsky (dec.) v. Shimko [9], at para. 6) and in the words of the court in this context in Hadassah Ein Karem Medical Association v. Gilead:

‘In exercising our discretion, with respect to the recognition of  a new case-law privilege, we must seek a balance between the conflicting interests. On the one hand, there is the interest of the individual and the public in the clarification of the truth. On the other hand, there is the interest of the individual and the public in the protection of privacy, freedom of expression, relations of confidentiality, and other considerations pertaining to the public welfare (see Skoler v. Gerbi [19]; HCA 64/91 Hilef v. Israel Police [15]). In the framework of this balancing, inter alia the relative importance of the opposing considerations, the indispensability of the document for the revelation of the truth and the existence of alternative evidence for the evidence requested must be taken into account. The degree to which the disclosure affects public interests that the privilege seeks to protect must also be considered. All these factors will influence not only the actual decision to recognize a privilege, but also its scope. A broader scope than required cannot be allowed’ ([5], at p. 525).

The petitioner's request that a new case-law privilege be established in the present case must be examined in the spirit of these principles.  

The importance of investigation committees as the basis for establishing a privilege

16.  This Court has not infrequently discussed the importance of supervision and inspection of the activities of public bodies and institutions and their contribution to the promotion and inculcation of appropriate norms and values such as proper administration, honesty, efficiency, professionalism, thrift etc. (see e.g. HCJ 5743/99 Duek v. Mayor of Kiryat Bialik, Mr. Danny Zak, [31], at pp. 415-416; HCJ 7805/00 Aloni v. Jerusalem Municipality Auditor [31], at pp. 588-589; State of Israel-Transport Ministry v. Israeli News Co. Ltd. [17], at para. 14; see and compare: Estate of Michael Nemirovsky (dec.) v. Shimko [9], at para. 13).  In order to ensure that the supervisory and oversight bodies enjoy cooperation in their work and that they are able to gather information and evidence without the supplier of information or evidence  having to fear that they will serve as evidence in a judicial proceeding, the legislator established restrictions on the use of information and evidence submitted to these bodies in a judicial proceeding (on the purpose of these restrictions see Bank Iggud LeYisrael v. Azulai [6], at p. 64;  CrA 2910 Yefet v. State of Israel [32], at p. 301; CA 2906/01 Haifa Municipality v. Menorah Insurance Company Ltd. [33], at para. 14; LCA 9728/04 Atzmon v. Haifa Chemicals [34], at p. 765-766).  S. 30 of the State Comptroller Law provides as follows:

‘(a)  No reports, opinions or other documents issued or prepared by the Comptroller in the discharge of his functions shall serve as evidence in any legal or disciplinary proceeding.

(b) A statement received in the course of the discharge of the Comptroller's functions shall not serve as evidence in a legal or disciplinary proceeding, other than a criminal proceeding in respect of testimony under oath or affirmation obtained by virtue of the powers referred to in s. 26.’

In a similar vein, s. 10 of the Internal Audit Law provides as follows:  

'(a) Reports, opinions, or other documents issued or prepared by the internal auditor in the discharge of his functions shall not serve as evidence in any legal proceeding, but shall be valid as evidence in a disciplinary proceeding.

(b) A statement received in the course of the discharge of the internal auditor’s functions shall not serve as evidence in any legal proceeding, but shall be valid as evidence in a disciplinary proceeding.'

S. 22 of the Commissions of Inquiry Law, too, provides:

'The report of a commission of inquiry shall not be evidence in any legal proceeding.'

S. 14 of the Commissions of Inquiry Law further provides:

'Testimony given before a commission of inquiry or before a person entrusted with the collection of material under s. 13 shall not be evidence in any legal proceeding other than a criminal action in respect of the giving of that testimony.'

Similar to ss. 22 and 14 of the Commissions of Inquiry Law, s. 538(a) of the Military Justice Law provides that –

'Nothing uttered in the course of an investigation of a commission of inquiry, whether by a witness or otherwise, and no report of a commission of inquiry, shall be admitted as evidence in court, except where a person is on trial for giving false testimony before that commission of inquiry.'

It thus emerges that the protection afforded by the legislator to information and evidence submitted to the State Comptroller, to internal auditors and to governmental and military commissions of inquiries constitutes protection under the rubric of inadmissibility. This protection blocks the presentation of a report drawn up by these bodies in a legal proceeding, and of the testimony or evidence presented therein. As such, the findings in such a proceeding cannot be based on those reports, testimony or evidence. On the other hand, as distinct from privilege, this inadmissibility does not prevent the disclosure of the evidence and the information that was presented to those bodies in the framework of the said legal proceeding.  In our comments in para. 11 above we addressed the distinction between inadmissibility and privilege, and President Barak had the following to say on this point in Bank Iggud LeYisrael v. Azulai:

'S. 10 of the Internal Audit Law establishes the inadmissibility ("shall not serve as evidence") of the internal audit report. This provision does not, per se, establish a privilege preventing disclosure of the report to a party to the litigation. Indeed, inadmissibility and privilege are two separate matters. The inadmissibility of a document is not a bar to its disclosure (see App. 121/58 Keren Kayemet LeYisrael v. Katz [35]). Inadmissibility is intended to prevent the court from basing a finding on that piece of evidence. Non-disclosure due to privilege is intended to prevent examination of the document by the other party. Examining a document may sometimes be of tremendous value to a party even though it may not be submitted due to its inadmissibility. The accepted approach is therefore that a document's inadmissibility per se does not protect it from disclosure' (see 13 Halsbury, The Laws of England (London, 4th ed., by Lord Hailsham 1975) 34-35; P. Matthews and H. Malek, Discovery (London, 1992) 94), at p. 64. See also Alberici International Foreign Partnership registered in Israel v. State of Israel [2], at p. 47; Yefet v. State of Israel [32], at pp. 305-306; State of Israel-Transport Ministry v. Israeli News Co. Ltd. [17], para. 19; Israel Discount Bank Ltd v. Shiri [8], paras. 16-17).

17.   Internal audit in recognized institutions of higher education in Israel has received special statutory regulation, distinct from the arrangement for public bodies under the Internal Audit Law.   A "public body" as defined in s. 1 of the Internal Audit Law explicitly excludes "an institution of higher education recognized under s. 9 of the Council for Higher Education Law, 5718-1958," and s. 15 of the Council for Higher Education Law explains the reason for this as being the desire to preserve the academic and administrative independence of these institutions.   Parenthetically, it bears mention that s. 15A of the Council for Higher Education Law applies certain provisions taken from the Internal Audit Law to an internal auditor of an institution of higher education, mutatis mutandis. The National Labour Court based some of its reasoning with respect to the disclosure of documents on its classification of the petitioner as a hybrid body with classically public features to the extent that it operated in the capacity of an employer.  In this matter it relied on the judgment in Bar Ilan University v. Kesar [1], adding that it was therefore necessary to subject it to the rules from the realm of administrative law that obligate the authority to disclose documents and allow them to be examined by any person who may be adversely affected by its decisions (para. 11 of the judgment). This approach finds partial support in the decision of this court in  AAA 7151/04 Technion – Israel Institute of Technology v. Datz [36]. In that case the court held that even though the Technion (as well as the petitioner) was not a "body discharging a public function by law", and neither was it a "public authority" for purposes of the Freedom of Information Law (but see the notice regarding the definition of public authorities under the Freedom of Information Law, O.G. 5766, p. 1050), a competent court may apply the norms of administrative law to these bodies should it transpire that they bear the characteristics of public bodies.  At the same time, in Technion – Israel Institute of Technology v. Datz [36], the court held that the application of public law to the Technion required a factual foundation that had not been presented in that particular case. In its absence, and in the absence of a thorough examination of the relevant information, the Court deemed it impossible to determine whether the Technion was a hybrid body for the relevant aspects of the case, nor could it identify the particular obligations of public law that should be applied to the Technion, or their scope.  Indeed, the legal classification of recognized institutions of higher education as hybrid bodies and their subjection to obligations from the arena of public law is a weighty question.  As President Barak noted in Technion – Israel Institute of Technology v. Datz [36], a decision on this question requires the establishment of a broad factual and normative basis (on the complexity of this matter see CA 467/04 Yatah v. Mifal HaPayis [37], at para. 19.) It seems that this question was not the focus of the present case, and by extension no factual foundation was presented to us. As such, here too we should refrain from iron-clad determinations if they are not required for ruling on the petition (on this subject see also CA (BS) 1038/00 Pener v. Ben Gurion University of the Negev [38]; OM (Haifa) 283/04 Douhan v. Haifa University [39]; OM (Haifa) 217/05 Namana v. Haifa University [40] – appeal on the judgment currently pending – CA 8695/06).

To be precise: the present case does not concern an investigation committee established by virtue of law, but a voluntary investigation committee established by an academic institution to investigate matters related to teaching and administration in the Theatre Department.  The subjects submitted for its examination related primarily to "academic and administrative matters" in respect of which the legislator prescribed that recognized institutions enjoy freedom of action, and in the words of s. 15 of the Council for Higher Education Law, "A recognized institution shall be at liberty to conduct its academic and administrative affairs, within the framework of its budget, as it sees fit." For purposes of this section, "academic and administrative affairs" are defined as including "the determination of a program of research and teaching, the appointment of the authorities of the institution, the appointment and promotion of teachers, the determination of a method of teaching and study, and any other scientific, pedagogic or economic activity."  As such, even if in certain aspects an institution such as the petitioner may be viewed as a hybrid body bound by the norms of public law, it would nonetheless seem, prima facie and without ruling on the matter, that matters of the kind that the Investigation Committee was charged with examining, are not characterized by that public aspect.

18. As we have seen, the legislator determined that the findings and conclusions of various statutory investigation committees considering matters of outstanding public importance, as well as the evidence and testimonies heard therein, will enjoy protection under the rubric of admissibility and not of privilege  (apart from a protocol of an investigation committee under s. 21 of the Patient's Rights Law, which establishes a relative privilege; see Hen v. State of Israel - Ministry of Health [7];  but see also State of Israel-Ministry of Health v. Estate of Avital Halperin (dec.) [15], regarding the findings and conclusions of such a committee). In view of this fact and of the fact that our concern is with a voluntary investigation committee intended to examine internal university matters relating to difficulties that arose in the areas of teaching and administration in one of the University departments, it would seem that the public interest in ensuring the effective operation of this kind of committee does not, per se, warrant the establishment of a high-level legal norm of privilege in relation to the testimony and evidence presented to it.  This conclusion holds despite the undisputed ability of these committees to enhance the quality of teaching and the administrative efficiency of the support systems of academic institutions. Conceivably, awareness of the possibility of having to disclose their testimony and evidence may have a "chilling effect" on the willingness of witnesses and those submitting evidence (regarding the different approaches to the possible existence of this effect and its significance in the totality of considerations that the court must take into account, see Hadassah Ein Karem Medical Association v. Gilead [5], at pp. 526-527; Bank Iggud LeYisrael v. Azulai [6], at p. 64; State of Israel-Transport Ministry v. Israeli News Co. Ltd. [17], at paras. 23-25; Hen v. State of Israel - Ministry of Health [7], at para. 24; Estate of Michael Nemirovsky (dec.) v. Shimko [9], at para. 15; Mekorot Water Company Ltd. v. Levi [18], at para. 13; State of Israel-Ministry of Health v. Estate of Avital Halperin (dec.) [15], at para. 20).  However, in view of the nature of the Committee concerned and particularly, of the fact that we are dealing with the testimony and evidence that constituted the basis for the Committee's conclusions - which were adopted by the University and which led to the termination of the respondents' employment in the Department - the possibility of a "chilling effect" should not be assigned decisive weight to the extent of establishing a new privilege in the present context.  In other words, to the extent that there is concern for the impairment of the functioning of university investigation committees, it is outweighed by the need to enable the employees harmed by the committees' conclusions to defend themselves against allegations leveled at them and to prove their contentions that the decision in their matter was unlawfully adopted (see and compare: LCA 7568/00 State of Israel Civil Aviation Authority v. Aharoni  [41], at p. 565).

The rationale underlying this approach is that weighty social considerations favor enabling employees to fully realize their rights. Against this background, the interest in the efficient functioning of investigation committees of the type under discussion, however important, cannot per se justify awarding a privileged status to the material.  This is certainly true in a case such as ours, in which a judicial forum is to rule on the legal validity of the petitioner's decisions concerning a change in the employment status of respondent 1, and the termination of its employment of respondents 2 and 3.  In this context, the interest in the efficient functioning of investigation committees is secondary to the respondents' right to due legal process in which they are given the opportunity to examine all the relevant material in support of their claims against the termination of their employment in the Theatre Department.

The right to privacy as the basis for establishing privilege

19. The right to privacy, upon which the petitioner seeks to rely as an additional basis for the claim of privilege, has indeed been recognized by Israeli law as a constitutional human right. S. 7 of Basic Law: Human Dignity and Liberty, entitled "Privacy" provides as follows:

‘(a) All persons have the right to privacy and to intimacy.

(b) There shall be no entry into the private premises of a person who has not consented thereto.

(c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.

(d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.’

Even prior to this explicit provision in the Basic Law, in 1981 the Israeli legislator established a broad, though incomplete, statutory arrangement for the protection of privacy in the Protection of Privacy Law (see the extension of the protections in Amendment No. 4 of the Law, 5765-1996, to privacy in data bases), in prescribing that an "an infringement of privacy" as defined in s. 2 of the Law is a civil tort governed by the provisions of the Civil Wrongs Ordinance [New Version] (s. 4 of the Protection of Privacy Law) as well as a criminal offense in cases in which the violation, as defined in some of the subsections of s. 2, was intentional (s. 5 of the Protection of Privacy Law).  In CrA 5026/97 Gal'am v. State of Israel [42] (at para. 9), this court extolled the virtues of the right to privacy as "one of the rights that establishes the democratic  character of the Israeli regime and as one of the supreme rights that establish the independent status of the right to  dignity and liberty to which every person is entitled." In HCJ 6650/04 A. v. Netanya Regional Rabbinical Court [43]  (at para. 8), President Barak lauded the right to privacy as "one of the most important human rights in Israel" (see also CrA 1302/92 State of Israel v. Nahmias [44], at p. 353;  CA 8825/03 General Health Services v. Ministry of Defence [45], at paras. 21, 22). Indeed, privacy is a constitutionally protected right, the specific provisions of which are laid down in the Protection of Privacy Law and in Basic Law: Human Dignity and Liberty (ss. 7(b) – (d)).  These provisions do not, however, encompass all the occurrences of the right to privacy, its violation and the protections applying to it. Various statutes (for example: Patient's Rights Law, Courts Law, Evidence Ordinance) contain additional protections, of varying degrees, of this right (whether standing alone or combined with other protected values). Indeed, as noted by President Barak in A. v. Netanya Regional Rabbinical Court [43],  nothing prevents the continued development of the right to privacy and the various protections applying to it in the framework of Israeli common law, in which the right to privacy was in fact recognized for the first time as a human right (ibid, para. 8, and see also MiscApp 82/83 State of Israel v. Alia [46], at p. 741; HCJ 355/79 Katalan v. Prisons Authority [47];  HCJ 259/84 M.Y.L.N Israel Institute for Best Product and Business Ltd. v. Broadcasting Authority [48], at p. 684.)  In other words, regarding the protection of privilege as in the case before us, there is nothing to prevent the creation of additional protections of this kind in settled case law, which draw their justification from the right to privacy, even if the protection has not been explicitly regulated by statute (see Skoler v. Gerbi [19]), and even if the damage whose prevention is being sought by means of the privilege is not actually mentioned in ss. 7(b)–(d) of the Basic Law or s. 2 of the Protection of Privacy Law.

20.  Before discussing the appropriate scope of protection of the right of privacy in the current contexts, we should examine whether the material for which the petitioner seeks privilege does indeed pertain to the private matters or personal intimacy of any person, and whether norms in the area of protection of privacy are applicable to it.  In HCJ 1435/03 A. v. Disciplinary Court for State Workers Haifa [49], President Barak noted that the right to privacy comprises a number of aspects and broad areas of application, and in another case he said that "the right of privacy is a complex one, whose precise parameters are difficult to determine" (at p. 539; see also CA 4963/07 Yediot Aharonot Ltd. v. Adv. A. [50]; Eli Helm Laws of Protection of Privacy 1-4 (2003)). In his enlightening article, "Control and Consent: The Analytical Basis for the Right to Privacy" (Law and Government 11 (2007), 9), Dr. Michael Birnhack attempts to clarify the nature of the right to privacy and the justifications for its existence as a social and legal norm, and concludes by saying that "this right is naturally amorphous, because it is socially and technologically contingent" (ibid, p. 72). This accurate determination reflects the difficulty of establishing defined and pre-determined frameworks for the right to privacy. At the most basic level it could be argued that the right to privacy relates to information or data that clearly pertains to a particular individual and to him alone (such information would include his medical condition, his income level, age, weight, sexual inclination etc.), and it might relate to information or data concerning his contacts with others (information or data of this kind would include the contents of a conversation or correspondence with another person, an inter-personal relationship conducted with another person, a traumatic event involving another person, etc.).  A more expansive approach might consider almost any information relating exclusively to a particular individual as a manifestation of the right to privacy (see CA 439/88 Registrar of Data Bases v. Ventura [51], at pp. 821 – 822).  By the same token it could be claimed that information or data pertaining to a private person's contacts with others at any particular level might also be regarded as his private affairs, especially if we accept the concept of the right to privacy as meaning control of the disclosure of such information or data. Nevertheless, insofar as we are dealing with a legal norm, I find no justification for such a broad definition of the right to privacy, at least in a case in which other people are the focus of the information or data for which the protection is required, and the role of the individual seeking protection for them is marginal, not exceeding that of an observer or bystander (unless the actual disclosure of his participation in the event could, under the circumstances, violate his right to privacy).  Let us be precise:  the right to privacy as it applies to actual information must be distinguished from the right to privacy as it applies to disclosing information that a person absorbed through his senses.  In this context of disclosing information we may refer to a persons' right to privacy in the classical sense of being "left alone" and not being compelled to reveal any matter that he does not wish to reveal. This right, however, extends only to the point at which there is a legal obligation to testify on the matter, such as in an investigation or legal proceeding.  These nuances regarding the right to privacy and its protection can be demonstrated in the following example: a bell-boy sees a well-known public figure going up to a room in the hotel where he works, accompanied by a woman who is not his wife. The bell-boy would not be able to claim a right to privacy that could prevent that detail being revealed by any other person. On the other hand, if a gossip columnist from a local paper were to request his verification of that information the next day, the bellboy would be entitled to withhold it by invoking his right "to be left alone" and not to give information if he had no desire to do so.  However, if the same bell-boy were summoned to testify in divorce proceedings in a family court between the very same well-known person and his wife, he would be obliged to testify regarding what he had seen and heard on that night. Under those circumstances, he would not enjoy the right "to be left alone". 

21. The case before us involves information given by teachers and students of the Theatre Department concerning the respondents’ conduct in the course of their work as teachers in the Department. The information was given by those students and teachers in complaints filed with the petitioner’s competent authorities, and in their interviews with the Investigation Committee. The Committee's Report and the petitioner’s claims indicate that the misconduct ascribed to the respondents by the complainants and other witnesses originated in the respondents’ generally problematic conduct as departmental teachers, which allegedly impaired the proper functioning of the Department at both the academic and administrative levels.  In other words, the information given by the complainants and the witnesses focused on the respondents' conduct, which is not necessarily connected to the "private affairs" of the complainants and the witnesses.  Indeed, the petitioner’s principal claim regarding the need to protect the evidence was not based on the fear of disclosing any private matter concerning the complainants and the witnesses. Rather, it derived from the concern that if the respondents were to succeed in their legal suit and return to their place of work in the Department, they were liable to settle accounts with them as those who had complained and testified against them.  In this context, the petitioner sought to draw an analogy from privilege recognized by Israeli law regarding the identity of police informants and the information given by them, but these two issues are not alike.  The justification for the privileged status of police informants is not based on the right to privacy; its rationale was explained by the court in CA 2629/98 Minister of Internal Security v. Walfa [52], stating that "the logic of the interest in concealing the identity of informants lies in the following two factors: first, the protection of the informant’s welfare and safety; second, the encouragement of submission of information to the investigating authorities, which would not have been submitted had the informant's identity not remained concealed (at p. 795; see also: HCJ 64/91 Hilef v. Israel Police [53], at p. 656; HCJ 10271/02  Fried v. Israel Police- Jerusalem Region [54]).  The current case does not involve danger to the lives of the complainants and witnesses, Heaven forbid.  Nor does it relate to any high-level public interest, such as providing assistance to the police in the performance of its duties. Moreover, where a person claims privilege  relating  to sources of information, he must produce an appropriate certificate of privilege (ss. 44 and 45 of the Evidence Ordinance referred to above), which is then judicially examined from the perspective of the  necessary balances  (see CrA 1335/91 Abu Fadd v. State of Israel [55],  at p. 129).  In this context, the petitioner referred us to the ruling in Aloni v. Jerusalem Municipality Auditor [31], in which the court allowed the internal auditor of the Jerusalem Municipality to withhold from the person being audited the names of the complainants and the informants during the course of the audit.  This court's holdings in Aloni v. Jerusalem Municipality Auditor [31] are of no avail to the petitioner, if only because in that particular matter the court ordered the disclosure of all the relevant material to the person being audited, in order to enable her to exercise her vested  right to state her case.  Moreover, the provision regarding the omission from this material of the names of the complainants and of those who testified is not substantively different from the restriction imposed by the National Labour Court in the case before us, and I will return to this point below.

If we attempt to place the dispute in the present case within the parameters of the right to privacy, it may be said that the complainants and the witnesses voluntarily gave information to the competent authorities of the petitioner, as well as to the Investigation Committee, for the purpose for which the Committee was established. Indeed, in this context, the right to privacy means the ability of the individual – in this case, the complainants and the witnesses – to control the information in his possession in a way that will restrict its disclosure to one specific purpose and not another. Prima facie, from this perspective (and perhaps from other perspectives arising from an examination of the material), a 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 (on the meaning and scope of this promise – see below).  However, even if this kind of infringement of the privacy of the complainants and the witnesses occurred, and even if, as the petitioner claims, it falls within the ambit of s. 2(8) of the Protection of Privacy Law, i.e. the “infringement of an obligation of secrecy laid down by express or implicit agreement in respect of a person's private affairs," it would not necessarily establish the privilege-based defense sought by the petitioner. To be precise: at the very most, the Protection of Privacy Law could entitle the petitioner to the relative defence of inadmissibility under s. 32 of the Law, whereby "material obtained by the commission of an infringement of privacy shall not be used as evidence in court without the consent of the injured party, unless the court, for reasons which shall be recorded, permits it to be so used or if the infringer, who is a party to the proceeding, has a defense or enjoys exemption under this Law". The inadmissibility of certain material for submission as evidence – without determining if this is the case before us – does not prevent its disclosure at the preliminary stage of the trial, nor the right of the other side to examine it (see Bank Iggud LeYisrael v. Azulai [6], at p. 64), as aforesaid. 

In sum, in the case at hand, the alleged infringement of the privacy of the complainants and the witnesses does not justify the creation of a high-level defense of privilege against the disclosure of the information. The gravity of the alleged infringement of privacy, to the extent that there was such, is relatively low, and at all events does not match the harm liable to be caused to the respondent's right to a fair proceeding if the protocols and complaints are not disclosed (see and compare Zuckerman, para. 14. 106). 

The promise of confidentiality as a basis for privilege

22.  It remains for us to discuss the petitioner's claim that as in Skoler v. Gerbi [19], in this case, too, there should be recognition of a privilege that draws its force and justification from the undertaking of confidentiality given by the Investigation Committee to the complainants and the witnesses. In this section we will again address the considerations pertaining to the importance of the Investigation Committee's activities and to the infringement of the privacy of the complainants and the witnesses, but our focus will be on the promise of confidentiality made by Committee. This promise was explicitly recorded in the Committee's report, which states on p. 3 that -

'The Committee gave an undertaking regarding the full confidentiality of the details of the testimonies and those giving them, in order to enable those interviewed to speak frankly, freely and without fear;'

 On page 6 of the Report it states that –

'The quotations cited in the Report are anonymous, in order not to reveal the identity of the witnesses, pursuant to the promise of privilege that was given.'

The promise of confidentiality cited here relates, literally, to the witnesses who testified before the Committee. On the other hand, as the respondents themselves noted, prima facie it is problematic to apply this promise to the letters of complaint that the petitioner refused to disclose, since these letters (apart from one which bore no date), bear a date that precedes the date of the Committee's establishment (see itemization of letters in appendix 19 of the appendices volume filed by the petitioner and the Committee's letter of appointment from 9 November 2003, appendix 6, ibid).  The petitioner had no answer to this difficulty, but for purposes of this discussion I am prepared to assume in the petitioner's favor that there was an overlap between those who wrote the letters of complaint prior to the Committee's establishment and those who testified before the Committee upon its establishment. Accordingly, once the Committee gave its undertaking of confidentiality, it extended both to matters transmitted orally to the Committee and to the letters of complaint submitted to it as part of the material that was relevant for its conclusions. The problem is that this kind of promise of confidentiality does not, per se, establish a privilege that negates the litigant's right in a judicial proceeding to examine the documents referred to in that promise, to the extent that they are relevant to the proceeding. Any other conclusion would divest the right of disclosure and examination of its content and mortally prejudice one of the basic conditions for the conduct of a fair procedure.  This indeed is the basis for a past ruling determining that a distinction must be made between confidentiality and privilege and that "the confidentiality of information does not automatically entail privilege against its disclosure." Confidentiality must be distinguished from privilege (see Bank Iggud LeYisrael v. Azulai [6], at p. 66; see also Harnon, Law of Evidence, p. 126). We see therefore that in our legal system, there is no automatic equation of the obligation of confidentiality with privilege, although there may be cases in which the obligation of confidentiality will be construed as an obligation that also establishes privilege.  In the present context a distinction should be drawn between the obligation of confidentiality by force of a statutory provision and the obligation of confidentiality on the contractual level, deriving from a voluntary promise of a party or parties to a contract. As a rule, we would appear to be less inclined to infer a privilege from a contractual obligation of secrecy than from the purposive  interpretation of a statutory provision containing an obligation of confidentiality, as was the case in Bank Iggud LeYisrael v. Azulai [6], at pp. 66-67). All the same, it is clear that not all contracts are cast in the same mold, and in deciding on whether privilege stems from a contractual obligation of confidentiality, consideration must be given to the nature of the contract, the identity of the contracting parties, and the broad societal and other repercussions of maintaining the obligation of confidentiality specified therein. For example, in Skoler v. Gerbi [19], the Court was prepared to derive a relative privilege with respect to the bank documents in reliance on the contractual obligation of confidentiality entrenched in the contractual relations between the bank and its clients. It did however emphasize that its readiness to do so reflected the public interest in maintaining the confidentiality of bank-customer relations, which is one of the bedrocks of the entire banking system.  In the Court's own words:

'All are agreed that the bank is bound by an obligation of confidentiality in matters pertaining to its customer.  The obligation of confidentiality flows from the essential nature of the bank-customer contract and from the nature of their relationship. The customer desires to ensure the confidentiality of his financial transactions and his financial position and trusts the bank not to allow their publication. The banking system is founded on the relations of trust and obligation of confidentiality (see E.P. Ellinger, Modern Banking Law (Oxford, 1987) 96-97. Without these it cannot survive, and in the national-economic interest in the existence of this system would also be harmed. It is this public interest that distinguishes the bank’s obligation of confidentiality from a contractual obligation of confidentiality, in which the public has no interest’ (ibid, p. 771).

In other words, before the court will accede to the creation of a case-law privilege stemming from a contractual promise of confidentiality, it must be persuaded that the promise is accompanied by additional, weighty considerations rooted in the public interest, which would justify such a step (see also Zitrin v. Disciplinary Tribunal of Bar Association, Tel-Aviv District [4], at pp. 358-359).  English law adopted a similar approach whereby in principle, neither a contractual promise of confidentiality, nor even the fact that information was transferred in the framework of relations of trust that dictated secrecy, sufficed to prevent the disclosure of the relevant material and its submission for the opposing party’s inspection in the course of a legal proceeding (with the exception of information transmitted in the framework of attorney-client relations).  Nonetheless, a promise or obligation of this kind still constitutes a factor warranting judicial consideration in this context (see: Peter Murphy Murphy on Evidence, para. 13.10 (10th ed., 2007); Zuckerman, paras. 14.52-14.60; Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 429, 433-434; D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 218, 242, 245; Science Research Council v. Nasse [1980] A.C. 1028, 1065, 1067, 1074; South Tyneside MBC v. Wickes Building Supplies Ltd [2004] N.P.C. 164, para. 23(iv)).

23. The promise of confidentiality in the case before us is a promise made to the complainants and the witnesses by an authorized body on the petitioner's behalf (the Investigation Committee). As such, this is an obligation that was created between the petitioner and the complainants and witnesses on the contractual level. One must bear in mind that this kind of obligation encourages cooperation between suppliers of information and voluntary investigation committees such as the Committee in the present case, and therefore, from the perspective of the public interest, it is fairly important in the establishment and the effective functioning of these committees as aforesaid.  The violation of the privacy of the witnesses and complainants that will occur if the promise of confidentiality is not upheld is also a serious consideration in this context, in view of the constitutionality of the right to privacy.  However, as clarified above, neither this infringement of privacy nor the importance of investigation committees establishes a public interest that justifies vesting the information with a privileged status in the circumstances of this case, in view of the weight of the opposing considerations.  In my view, this conclusion would not differ even if our considerations were to be supplemented by the cumulative importance of the actual promise of confidentiality. After all, it was in reliance inter alia, and perhaps primarily, upon those particular complaints and testimony, that the Investigation Committee issued its far-reaching recommendations regarding these respondents - recommendations that were adopted by the petitioner, who decided to remove the respondents from the Theatre Department. This caused the respondents very significant harm, for their dismissal from their positions in this manner inevitably damaged their income, their reputation, their professional future and their status in the academic world.  As such, the respondents are entitled to have the legal status of the measures adopted against them examined by an appropriate judicial tribunal. To that end they should be equipped with the full range of tools provided by the law to enable them to confront the allegations against them in the Committee's Report and in the petitioner's decision, and so that the court will be able to clarify the truth having received a clear and accurate evidentiary picture of the case.  This is how things should be done unless there is an important public interest that overrides the respondents' interest in receiving all of the relevant material. No such interest exists in the current case. Accordingly, there are no grounds for establishing a case-law privilege anchored in the promise of confidentiality given by the Committee to the complainants and the witnesses, on the basis of which the petitioner would be permitted not to disclose all of the disputed material to the respondents, i.e. the protocols of the Committee documenting the testimony of the witnesses to whom the promise of confidentiality was made, and additional documents submitted to the Committee which the petitioner attempted to conceal - primarily the complaints of the teachers and students in the Department.

24.  This being the case, neither can the promise of confidentiality serve as an anchor for the petitioner's refusal to disclose these documents to the respondents. Does this mean that in terms of its relations with the witnesses and the complainants, the petitioner should be regarded as having breached its promise? I do not think so. I think it appropriate to read an unwritten caveat into the promises, to the effect that the petitioner is bound by any lawful demand to provide testimony or to submit a document. Any other reading of this promise, namely as a promise that purports to override a statutory requirement, might brand it as an illegal promise, leading to its nullification under s. 30 of the Contracts (General Part) Law, 5733-1973 (hereinafter: "Contracts Law") (on the rule of interpretation whereby a construction that retains the contract's validity is preferable to a construction that renders it invalid by reason of illegality,  see s. 25(b) of the Contracts Law, and  CA 391/80 Lesserson v. Shikun Ovdim Ltd. [56], at p. 255; CA 7664/00 Abraham Rubinstein and Co. Contracting Company Ltd. v. Holon Municipality [57],  at pp. 133-134).  Consequently, and from the petitioner's perspective, a judicial order addressed to it [the petitioner] and ordering it to allow disclosure and examination of the documents and protocols in respect of which it gave a  promise of confidentiality would not expose it to claims on the part of the complainants and the witnesses for having breached that promise (on this issue, see also the defence in s. 18(2)(b) of the Protection of Privacy Law and the article of Alex Stein "Bank-Customer Privilege in the Laws of Evidence" Mishpatim 25 (1995) pp. 45, 69-70; and cf. R.G. Toulson, C.M. Phipps Confidentiality, para. 3-168-3-169( 2nd ed., 2006)).  On the other hand, from the perspective of the complainants and the witnesses, the conclusion whereby the obligation of confidentiality is not a barrier to the respondents' right to receive the relevant material is of greater significance, especially in view of the fact that the complainants and the witnesses are not parties to the litigation between the petitioner and the respondents, and as such have not had the opportunity of stating their case in relation to the disclosure of the material.  Moreover, the agreement to the unwritten caveat that must be read into the promise of confidentiality is constructively imputed to the complainants and the witnesses in order to retain the legality of the promise, whereas in practice, it is definitely possible that they understood and relied upon the promise as being a bar to any exposure of the material, even in a legal proceeding. Under these circumstances the National Labor Court rightly attached significance to the interests of the complainants and the witnesses as third parties in the proceeding, ruling that the names of the speakers and any other identifying particulars were to be deleted from the protocols of the Investigation Committee that had not yet been relayed to the respondents, and, regarding the other documents, in ruling that these were to be submitted for the examination of the Regional Labour Court, "which would rule on the deletion of details that might be prejudicial to parties not connected to the proceedings, and on whether it is possible to allow the disclosure of the documents [to the respondents] without such disclosure harming the interests of a third party." In this way the National Labour Court balanced between the respondents' right to receive the material and the interest of the complainants and witnesses, as third parties, that at the very least, the extent of the disclosure would not be in excess of what was required by the respondents for purposes of the fair conduct of their suit.

25.  In view of all the reasons above I would suggest to my colleagues to deny the petition and to obligate the petitioner to pay the respondents' legal fees in the sum of NIS 20,000.

 

 

Justice M. Naor

I concur with the comprehensive judgment of my colleague, Justice Hayut. I do, however, wish to make a number of brief comments.

1.  My colleague states (in para. 24 of the judgment) that "the National Court rightly attached significance to the interests of the complainants and the witnesses as third parties in the proceeding, ruling that the names of the speakers and any other identifying particulars were to be deleted from the protocols of the Investigation Committee that had not yet been relayed to the respondents. " I would like to leave the question of whether there are grounds for this deletion for future decision.  The petitioner in this case is the University, and the respondents did not file any petition regarding the Labour Court's instructions regarding the deletions. Consequently, our decision on this matter is not required, and I therefore wish to refrain from ruling on the matter.

2.  Similarly, and since, as my colleague noted, we did not hear the complainants and the witnesses, I see no basis for determining that in the relations between the petitioner and the complainants, the promise made to the complainants and the witnesses should be seen as including an unwritten reservation to the effect that the promise is subject to any lawful requirement to give testimony or submit a document. I would prefer to rule that a promise of confidentiality cannot override statutory provisions requiring the giving of testimony or disclosure of documents.

3.    It is somewhat perturbing that the interests of the complainants and the witnesses, who are not parties to the current litigation, have not been safeguarded, and the promise that was made to them has not been honored.   Nonetheless, in the circumstances of the case before us I believe that the respondents' interest in maintaining their dignity and their jobs outweighs the interest of the complainants and the witnesses. That is so, whatever the result may be: if at the end of a proper process in which the rights of the respondents are safeguarded, the Labour Court rules that the measures adopted against the respondents were justified, then the complainants and the witnesses have no one to fear. If, on the other hand, it turns out in the legal proceeding that the witnesses and complainants or any one of them, under the protection of a promise of confidentiality, gave information that was incorrect, then there is no justification for such protection. A proper judicial procedure will bring out the truth, either way.

4.    As for the infringement of the privacy of the complainants and the witnesses: my colleague, Justice Hayut, rejected the claim that the privacy of the witnesses and the complainants was infringed, in ruling that the status of the complainants and the witnesses is a marginal one of "an observer or bystander" (para. 20 of her judgment). In my view, without examining the complaint documents and testimony, it is difficult to determine categorically that there was no infringement of privacy.  As my colleague explained, the National Labour Court did not see the documents in dispute. Regarding the privilege claim and its classification our intervention is not required in this decision. However, examination of the Committee's Report points to an accumulation of testimony regarding "public humiliation ceremonies" of both the teachers and the students.  One of the teachers testified to a "feeling of public humiliation" that he experienced personally, in addition to the public humiliation ceremonies experienced by others. Another teacher testified that these ceremonies brought the students to tears, and it is unclear whether these students actually testified regarding what they themselves had experienced.  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. The right to privacy also extends to "privacy with respect to the proceedings in court" (per President Barak,  HCJ 1435/03 A. v. State Employees Disciplinary Court [58], at p. 539) and it is "intended to enable a 'zone' for the individual in which he determines his path of action" (HCJ 6650/04 A. v. Regional Rabbinical Court of Netanya [43]. See also the definition of "infringment" of the right of privacy in s. 2 of the Protection of Privacy Law, 5741-1981).   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.

5.    Amongst other things, my colleague discussed the arguments concerning the public interest in ensuring the effective and fair functioning of investigation committees, as well as the concern regarding the "chilling effect" upon witnesses in and submitters of evidence to investigation committees.  This argument should certainly not be taken lightly, regardless of whether it is speculative (see Hadassah Medical Association Ein Karem v. Gilead [5], at pp. 525-526) or not (LCA 2498/07 Mekorot Water Company Ltd. v. Bar [10], per Justice E. Rubinstein at para. 13; State of Israel-Ministry of Health v. Estate of Avital Halperin (dec.) [15], per Justice A. Grunis at para. 20). Nevertheless, under the present circumstances, this argument cannot outweigh the real damage to the name, occupation and dignity of the respondents, which is further buttressed by the public interest in the revelation of the truth and the propriety of the judicial process.

6.  The petitioner ought to have considered that the question of the dismissal might well end up in judicial forums beyond the walls of the University, and that it would be required to make a full disclosure of all the information that served as the basis for the decision and for the personal recommendations that were adopted.  In my view our judgment leaves the petitioner with a choice: to disclose the information in the framework of the litigation or to cancel the dismissal. This would be analogous to a criminal proceeding in which it is customary to present the prosecution with the following choice when obligating it to disclose evidence despite a certificate of privilege: if it wishes to, it discloses the evidence, and if it wishes to, it withdraws the indictment, thus avoiding the disclosure (see e.g, Mazarib v. State of Israel [22], at p. 462e). I believe that this position is applicable to our case, with the necessary adaptations for civil law: if the petitioner deems that the interest of the complainants and the witnesses, or the interest in upholding the promise of confidentiality, outweighs the importance of the decision of the Dean of the Faculty of Humanities, it can avoid disclosing the information by accepting the suit in the Labour Court.

7.    As to the legal standing of the petitioner: the National Labour Court based some of its reasoning regarding the disclosure of documents on the petitioner's status as a hybrid body with public characteristics. I agree with my colleague that the required factual foundation regarding that question was not laid. Accordingly, I would leave undecided the question of whether with respect to certain aspects an institution such as the petitioner should be regarded as a hybrid body bound by the norms of public law (see the recent book by Dr. Assaf Harel, Hybrid Bodies – Private Bodies in Administrative Law (2008)).  I further clarify that we are dealing here with an investigation committee; the considerations I referred to would not necessarily be applicable to an appointments committee.

8.    Subject to these comments I concur, as stated, with the judgment of my colleague.

                  

 

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.

 

State of Israel v. Beer-Sheba District Court

Case/docket number: 
HCJ 11339/05
Date Decided: 
Sunday, October 8, 2006
Decision Type: 
Original
Abstract: 

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel that when two accomplices are prosecuted 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.

 

All the Justices agreed that the Kinsey rule should generally no longer be applied and that it should not be applied in this case; they differed on how sweepingly it should be rejected.

Justice Levy (with whom Justice Grunis agreed) concluded that the Kinsey rule should be rejected outright. While 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.  The two most important such protections in this setting are  the requirement of supporting evidence for the testimony of a witness-accomplice in s. 54A of the Evidence Ordinance, and the privilege against self-incrimination in s. 47(b) of the Evidence Ordinance. These 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. 

 

Justice Procaccia argued that 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.

 

President Beinisch, whose views were endorsed by President Emeritus Barak, Vice-President Rivlin, and Justice Naor, staked out an intermediate position. 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.

 

Petition granted.

Voting Justices: 
Author
majority opinion
Author
concurrence
Author
concurrence
majority opinion
Author
concurrence
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concurrence
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Full text of the opinion: 

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