As to the argument that if the diary had been presented to the respondent, he would have recalled the events of that day, I will reiterate that under the rubric of the day of the incident, all that appears in the diary is the pair of words "long meeting". The matter of payment of rent appears in the respondent's diary for five days Earlier, in the form of the deleted word "rent", and is one of at least six entries that appear on that day (see a scanned copy of the diary in section 86 above). My colleague assumes that since the two dates appear on the same page, it is reasonable to assume that the respondent's memory would have been refreshed "just as the memory of the owner of the pension was refreshed"(Paragraph 11 of his opinion). The conclusion of my colleague Possible - And so I mentioned above - but it suffers from a considerable degree of speculation. In my opinion, the argument that if the respondent had looked at his notes five days prior to the incident and saw the word "rent", this would have led to him recalling that his meeting with the owner of the pension took place Exactly At the time of the commission of the offense five days later, it is not at all convincing (see section 87 above).
As for the attempt to learn from the refreshed memory of the owner of the pension, in my opinion the matter is not similar to the evidence. Indeed, after presenting the owner of the pension with a dated receipt signed by him, he confirmed that on the same day the respondent paid him the rent for his father. However, this situation is fundamentally different from the respondent's situation, which is required, on the basis of one word erased in the diary, to construct a positive alibi. In other words, the owner of the pension was presented with a dated receipt signed by him, and all he was required to do was confirm its correctness and describe the circumstances of its signature. The Respondent, on the other hand, argues that the deleted word "rent" that appears in the five-day diary Previous For the day of the event, it would cause him to remember positively the order of events that are not described in the diary (i.e., that the rent was paid five days later, exactly at the time of the event). In short, it cannot be inferred from the fact that the owner of the pension confirmed that he signed the receipt on the date it appears, that if the respondent had perused his diary, he would have remembered the events of that evening and the exact timetables.
- Evidentiary damage - My colleague, who proceeds from the assumption that the police's failures in failing to seize the diary and the call outputs amount to negligence, is correct to base the existence of a causal link between the negligence and the extension of the respondent's detention also on the evidentiary damage doctrine, and he refers in this context, inter alia, to the judgment Other Municipality Requests 9328/02 Meir v. Laor, Piskei Din 585 (5) 54 (2004) (hereinafter: Meir's Matter) (paragraph 12 of his opinion).
Since I have reached the conclusion that the conduct of the police does not amount to negligence, I do not see the need to address the question of the application of the doctrine with respect to the causal connection component in the present case. I will note, however, that as my colleague noted, even assuming that the police's failures amount to negligence, we are dealing with a situation of "inherent evidentiary damage" (in the words of Guy Shani in his article "Evidentiary Damage and its 'Punishment': In Praise of the Transition from the Existing Model of Shifting the Burden to Models of Proportionality and Indexation") Law 415, 333 (2011) (hereinafter: Second - The Evidentiary Damage) and in his book Presumption of Negligence – Transferring the Burden of Evidence in Tort Law 337-343 (2011) (hereinafter: Second – Presumption of negligence), which is also brought in Israel Gilad Torts Law - Boundaries The Responsibility Volume 2 1357 (2012) which was cited by my colleague (hereinafter: Gilad)). Evidentiary damage is built, in other words, when the evidentiary negligence and negligence that created the damage (and for which the claim is filed) are one. This is in contrast to the "classic" situation, in which the evidentiary damage revolves around a separate act on the part of the defendant – > that leads to evidentiary harm – > prevents the plaintiff from proving the foundations of his cause of action in relation to his direct damage.