(-) Hairs in the ears - The girl emphasized during the preparation of the kit that the rapist was hairy, including in his ears. The court noted that the respondent's counsel emphasized in his arguments before it that there were no hairs in the respondent's ears at all, but that the respondent himself, in a conversation with the informant, said, "What am I to blame for having protruding hairs? A lot of people have it in their ears. But when it connects, it connects... Do you understand?" In summary of its decision, the court reiterates "the almost unique sign of hairs in the ears of which the defendant confessed, and which for some reason attracted the girl's attention," as well as his "refusal, through his attorney during the interrogation, to perform a voice recognition lineup and to be photographed."
On the other hand, the court noted that there is justice in the defense attorney's words, that without certain identification, whether in the framework of live identification or in the framework of photographs, "doubts remain in the heart that do not let go." The court emphasized that even if the identification of the respondent contains elements of spontaneous identification, its usefulness is questionable, since the minor herself made it clear that she had no confidence in identification. However, the court noted that the minor rated the certainty of identification on "nine and a quarter" out of ten.
- Ultimately, the court granted, not lightly, to the state's request, saying that after examining and re-examining the material and the picture as a whole, it reached the conclusion that there is an evidentiary basis that cannot be invalidated – even though doubts arise from it – that requires the respondent to be detained until the end of the proceedings against him.
The next day, the indictment was read out and the respondent Kafr and gave in writing his alibi claim, according to which "at the relevant time, he served as a tutor for a child of the Ethiopian community who lives with his family in ... Instead, he stayed until about 7:30 P.M. According to the defendant, subject to the aforementioned heresy, it is not possible to reach the scene of the offense from there in such a short period of time, given the distance, location, conditions and hours of traffic."
- The District Court's decision to order the respondent's detention until the end of the proceedings was therefore given after the parties argued the depth of the alleged evidence and counsel for the respondent noted the difficulties arising from the evidence. At this stage, when the evidence has already been presented to the respondent and his defense attorney, it is clear that the weight of the inaccurate and even false statements of the police regarding the evidence has been further reduced. At this point, the transcripts and interrogations were available to the parties. The respondent's defense attorney could have already known, and so he claimed, that the respondent did not tell the informant that he was attracted to children; that the hat seized was green and not yellow; what happened in the supermarket when the minor was brought by her father to identify the respondent; that the respondent insisted on his innocence despite being presented with a false report regarding the findings of theDNA And more. The District Court's decision – which the trial court barely mentioned in its judgment speaks for itself, and it is clear from it that the court investigated the alleged evidence in the case, without "mediation" or "interpretation" by the police, so that none of the "inaccuracies" included in the police reports motivated the court to decide as it decided. Thus, for example, the court emphasized that the usefulness of the respondent's identification by the minor is questionable. In short, there is no causal connection between the disruptions and defects in the way some of the evidence was presented by the police in previous stages, as stated above, and the decision to detain him until the end of the proceedings.
- We have detailed above the evidence on which the District Court based its decision, as an additional layer to the evidence that we discussed in previous stages. In light of all this, I find it very difficult to accept the conclusion of the trial court that "the evidence and the pieces of evidence were nothing but zero at best" and the harsh criticism it criticized the prosecutor's lawyers, who, as he put it, "They did not notice the zero evidentiary in this case, and how could they be tempted to rely on parts of truth and parts of testimonies in order to establish the filing of an indictment?!" (Section 15 of the judgment).
In my opinion, even in retrospect, the investigative concept at this stage, taking into account the totality of the prima facie evidence, was reasonable and within the bounds of the duty of care of the police and the prosecution, all the more so that it was accompanied along the way by close judicial review and received the court's approval in a number of instances and in a number of proceedings (and compare to the matter Hagai Yosef, at paragraph 105).