VII. And finally, a comment about the amount of compensation proposed by my colleague.
I will reiterate that our case is a tort claim in which the court adopted the determination of the medical expert on its behalf that the respondent suffered a mental disability of 10%. I am not aware of any judgment in tort in which such a considerable sum was awarded as the trial court ruled (NIS 1.8 million "net") and as my colleague proposes to award (NIS 1.2 million "net") for mental disability at the rate of 10% in this context, it is needless to say that neither the trial court nor my colleague thought that there was room to award punitive damages.בית משפט
Judge
Judge A. Arbel:
- I agree with the judgment of my colleague, Justice Y. Amit, and his main reasons. I agree with my colleague that we are dealing with a particularly exceptional case, taking into account the result, in which the respondent's request for compensation according to Section 80(a) of the Penal Law, 5737-1977 (hereinafter: Penal Law or The Law), was rejected by the panel of Judge Rotlevy in the District Court, while his tort claim was accepted by the panel of Judge D. Ganot in the District Court – a situation that, in the words of my colleague, is an anomaly. After the District Court has considered the application under Section 80(a) In a detailed and reasoned decision, the law examined the evidence before it in the arrest proceedings, and reached the conclusion that it was not possible to determine that there was no basis for guilt, and it is extremely difficult to reconcile this determination with the conclusion of the District Court in the tort claim that "the evidence and parts of the evidence were nothing but zero at best" (pp. 22-23 of the judgment).
- After a thorough examination of the material before him, my colleague came to the conclusion that the District Court's judgment in the tort claim focused on the evidentiary "none" when in fact there was a whole corpus of evidence that was available to the police, the prosecution and the courts in the framework of the arrest proceedings. A detailed and careful examination of the evidence, as well as an examination of the investigative failures and the upheavals that the respondent's alibi claim underwent, led my colleague to a different conclusion than that reached by the District Court. I concur with his assertion that there is no causal connection between the disruptions and defects in the way some of the evidence was presented by the police, and the decision to detain the defendant until the end of the proceedings, and that the evidence before the courts in the arrest proceedings was numerous and suspicious. I adopt the words of my colleague that even in retrospect, the investigative concept at the stage of detention until the end of the proceedings, taking into account the totality of the alleged evidence, was reasonable and within the scope of the duty of care of the police and the prosecution, noting that the investigation 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. At the same time, I would like to add a few comments of my own.
- It should be noted that the investigation of an incident in which sodomy was committed on a young girl in her years is a difficult and sensitive investigation. The police are asking for any information to be rescued from the girl, as well as from her immediate surroundings, and to reach the suspect as quickly as possible. For this purpose, police investigators in general, and here in particular, require sophistication and creativity in order to reach the suspect and get him to give what he knows. The task is not easy and varies from case to case according to the special difficulties that the police officers are supposed to deal with and must overcome, within the framework of the rules of what is allowed and forbidden that apply to them. We must take into account the difficulties encountered by the police in its war on crime, in its efforts to fulfill one of its most important functions, which is to decipher offenses and reach their perpetrators, and as has been said more than once, we should not be naïve and demand that police investigators not make any use of subterfuges. Police interrogation is not conducted under laboratory conditions, and it is clear that sometimes tactics of one kind or another are required in order to get an interrogee to cooperate with his interrogators. This does not legitimize the conduct of the police officers in the present case, as detailed at length by my colleague, Justice Amit, and I do not take lightly the seriousness of this conduct. However, it is important to remember that the work of the investigation is usually delicate and complex, all the more so in a case such as the one before us, which deals with sexual offenses committed against a minor.
- I further agree with the decision of the District Court in the claim under Section 80(a) to the Penal Law that the prima facie evidence material was sufficient to formulate a reasonable expectation of the respondent's conviction. Although there were inaccuracies or flaws in some of the evidence presented to the court in the initial arrest proceedings, I am of the opinion, like my colleague, that the respondent is obligated to accumulate real evidence in the early stages of the investigation and significant evidence at the detention stage until the end of the proceedings. There is a difference between examining the evidence in real time when the respondent is still in custody and examining it after the state withdraws the indictment due to doubt about the validity of the evidence. The appellant was released from detention, new allegations were raised that had not been made before, all in the form of "wisdom after the fact". As a colleague, I am not convinced that the failure to present the personal diary to the respondent at the beginning of his arrest prevented him from recalling the events of that fateful evening. I do not take lightly the inaccurate statements of the police investigators, and I do not rule out justified and substantive criticism, and I am even willing to join it. However, I have reservations about the harsh, harsh, and especially offensive criticism that was hurled at the police officers by the District Court.