"The rule is that investigative failures do not in themselves lead to the acquittal of a defendant, if, despite the failure of the investigation, a sufficient evidentiary basis was laid to prove his guilt of the offenses attributed to him (see, for example: Criminal Appeal 6040/05 Al-Nabari v. State of Israel (August 9, 2006); Criminal Appeal Authority 2132/11 Erez v. State of Israel (March 20, 2011))" (Criminal Appeal 8447/11 Suleiman v. State of Israel (September 24, 2012)).
And the same is true of the matter Firecracker:
"When examining a claim of investigative failures, the question of whether the alleged failures are serious to the extent that gives rise to concern that the defendant's defense was deprived because he had difficulty properly dealing with the evidence against him or proving his own version. This examination is carried out while weighing the alleged omissions against the background of the evidentiary basis laid before the court" (Criminal Appeal 8902/11 Haziza v. State of Israel (November 15, 2012)).
I will summarize the dynamics and complexity of the matter in what I have written elsewhere:
"Not every failure to investigate that the defense claims is an 'investigative failure,' and not every failure to investigate necessarily causes 'evidentiary damage.' Not every evidentiary damage and not every failure in the investigation leads to an acquittal. The impact of the omission depends on the circumstances of the concrete case, and in particular on the question of whether we are dealing with such a serious omission, that there is a concern that the appellant's defense in our case has been deprived in such a way that it will be difficult to deal with the evidence that incriminates him or to prove his own version. According to this criterion, the court must decide what weight should be given to the omission, not only when it stands on its own, but also in view of the totality of the evidence" (Criminal Appeal 8529/11 Atakishayev v. State of Israel (May 24, 2012); see also Criminal Appeal 2404/09 Alhamidi v. State of Israel (September 1, 2009); Criminal Appeal 2694/09 Anonymous v. State of Israel (June 23, 2010)).
- Masturbation – The claim of delay, as the main reason for rejecting the respondent's version on this point, is insufficient, in my opinion, in the circumstances of the case. Many times we have found that a victim of sexual assault captures his testimony (see, for example, Criminal Appeal 4721/99 Anonymous v. State of Israel, IsrSC 55(1) 684 (1999), and many others). Forcing a person to masturbate, or an attempt by authorities to force an interrogee to masturbate as part of a police interrogation, falls within the scope of such a difficult experience. The discrepancy between the respondent's versions was also taken into account, while I am prepared to accept the more limited version according to which the respondent did not actually masturbate, but "only" was subjected to humiliating pressure to masturbate. Above all, we must remember the way the trial was conducted: the respondent raised his version on the matter, interrogated the relevant policeman (who left a very negative impression on the court), while the defense, on its part, did not interrogate the respondent at all on the issue of masturbation.
- The experience of detention as a separate head of damage – My colleague noted that the distinction between detention and the experience of detention is "correct in itself", but in his view it should not be seen as a head of damage that stands on its own, but rather as part of the non-pecuniary damage. In my opinion, just as it is possible to single out pecuniary damage as distinct from non-pecuniary damage, but still recognize different heads of damage under the umbrella of pecuniary damage, so it is appropriate to approach the issue of non-pecuniary damage. Such a theoretical division will contribute, in my view, to the fact that the injured party will receive the compensation to which he is entitled in the tort attempt to restore the situation to its previous state (and see the majority opinion in the Ben Zion case). Moreover, in the concrete case – and as the court's expert opinion indicates – the experience of detention was even one of the causes of the pecuniary damage in the form of 10% mental disability.
- The amount of compensation proposed - members of the City that it is unacceptable for a plaintiff to receive a substantial sum of NIS 1.2 million for a mental disability of the degree of 10%. It should be noted that the pecuniary damage in this case is approximately NIS 700,000. The state did not dispute this rate, but focused on the issue of liability. My colleague offered compensation in the amount of NIS 200,000 for the threats and violence directed against the respondent during the interrogation. If, in addition to these sums, it is correct to award compensation for the experience of detention, the period of detention in part, and the matter of masturbation, it seems that the dispute between me and my colleague regarding the extent of the damage is not substantial. The main difference lies in the question of liability.
- Before concluding, one can only regret that the conduct of the investigation reflects a systemic failure. A failure for which the respondent paid the price. I accept the words of my colleague, Justice Arbel, regarding the hurdles and difficulties that accompany a police investigation of the rape of a minor. In contrast to the courts and criminal lawyers, the investigator receives an empty file that he must fill out with material. This position requires professionalism, skill, and integrity. These demands do not compete with each other, but rather complement each other. The more one of the components is missing, the more the other components will be missing. The District Court was exposed to a difficult picture, and even attributed to the investigators an initial intention to commit the omissions. In my opinion, this accusation – intention, not negligence – on the extent to which it was presented in the District Court's judgment has not been proven, and surprisingly it is not as decisive as it appears at first glance. I will clarify: Legal experience shows that a case such as the one before us is an exception. It can also be assumed that the investigators wanted to solve the crime, i.e., to discover the identity of the rapist. This is where the trap lies. Motivation, initiative and pursuit of a goal can also be good qualities for a police officer. However, in the type of work in which he is engaged, blurring the boundaries is liable to distance the researcher from the goal, and lead to the opposite result. A result that not only does not catch the perpetrator of the offense, but also creates a new victim of a different kind.
In Parashat Shoftim it is stated: "You shall pursue justice, justice" (Deuteronomy 16:20). Our Sages dealt with the question of what is the reason for the duplication of the term "justice." The answer given is that the result of justice must be achieved by means of justice: "Justice – in justice you shall pursue: only by proper means are you permitted to act in favor of justice" (Rav Meir Tzvi Haaretzka, Ateret Zvi, Parashat Shoftim). The interesting thing is that verses from a book before that are written: "You shall give you judges and officers at all your gates" (ibid., 18). Just as the judge must obtain justice through the means of justice, so must the policeman. The policeman appears for the first time in the Torah not in the normative framework that has been brought, but in the form of the policeman who was in charge of the Jews while they were slaves in Egypt. Rabbi Shimshon Raphael Hirsch (Rabbi Hirsch) explains that "the judge hears the lawsuit, and the policeman forces it to be carried out. Hence 'shtar' – an instrument" (his commentary on the Pentateuch, chapter 5, verse 6). The policeman is the executor of the law, a kind of instrument and a means. As such, of course, he must do his job with integrity.