As to the output of the cell phone calls, it is important to mention that this is a cell phone registered in the name of the respondent's mother, and that no claim was raised by the respondent in this context until a later stage. Therefore, even the call from the cell phone at 20:21 is not a conclusive finding that could have cleared the respondent's name in real time, since it was not possible to know who made the call.
- Finally, it is not superfluous to mention that the investigation in question took place in 1999. According to Yitzhak Stern, the head of the investigation team in the case, at that time, telephone call outputs were requested only in circumstances of terrorist or murder incidents, due to budgetary considerations, and therefore no such output was requested (Protocol, p. 160). The trial court rejected the matter and considered them to be part of "A variety of pathetic excuses." noting that in the end, Stern confirmed in his cross-examination that it was necessary to examine the outputs (p. 14 of the judgment). I have examined the minutes of the hearing, and although there is indeed a laconic answer by Stern that "it was necessary to check it" (Transcript, p. 170), it appears from the answer that he meant this That today He used to locate and that he had trouble remembering things as they were. As for myself, I do not believe that this is such a poor excuse, and what was customary in 1999 should not be compared to the period of 2010, when the evidence was heard in court. There were days when the police restricted themselves, for reasons of savings, from issuing phone outputs and locations because they were charged large sums of money by the cellular companies, and "In examining the reasonableness of the action of the law enforcement authorities, it must be based on the available investigative means that were at their disposal at the relevant time." Hagai Yosef, at paragraph 105). Today, this is done as a matter of routine, although the question of who will be charged with the cost is still a matter of dispute between the state and the cellular companies.
- Interim SummaryIn retrospect, it can be said that the police should have conducted additional examinations on the issue of telephone outputs, but in my opinion, this is retrospective wisdom, which does not take into account the status of the investigation as it was constructed in real time, and in any event, it is doubtful whether it can be attributed to a causal connection to the respondent's arrest. I will reiterate the ruling's warning against analyzing things wisely after the fact, and it is good for our purposes Justice Hayut's remarks in the matter Hagai Yosef:
"Insofar as we are dealing with the reasonableness of the conduct of the investigative bodies, the matter must be examined, bearing in mind that in many cases the work of these elements is similar to that of a person who is groping his way in the dark and looking for evidentiary points that will illuminate the situation and enable him to bring the culprits to justice. Not every mistake made during the investigation and in real time constitutes a breach of the duty of care and negligence on the part of the investigating authorities. Indeed, a "small" wisdom in this context is the "wisdom after the fact," which is presented by someone who is already illuminated, when he complains against the investigative authorities that they did not notice or attribute importance to this or that piece of information. In my opinion, an examination of the reasonableness of the conduct of the investigative bodies in this context should be examined in light of the totality of the data that was discovered or could have been discovered in real time."