The matter can be presented in a different way. In this case, in my opinion, the very existence of a causal connection between the police failures and the prolongation of the respondent's arrest was proven by a normal balance of probabilities. The evidentiary damage is expressed in the question of how many days, out of the total period of detention, were caused by the aforementioned omissions. If this is the case, the application of the doctrine – inherent evidentiary damage – is easier in our case than in cases where the evidentiary damage relates to the very existence of the causal connection in its entirety.
This means that the burden of proof on the issue of police failures shifts to the defendants. They couldn't stand it. Their arguments and the evidence submitted do not convince us that the omissions would not have led to a shortening of the period of detention. To be precise, we are talking about part of the period, if not the whole of it. The defendants met the burden in relation to only part of the period, based on the evidence that was submitted. As stated, in my opinion, this result can be reached even according to a normal balance of probabilities, and even without the assistance of the evidentiary damage doctrine.
(2) Violence and humiliation
- Justice Amit discussed at length the reasons why the respondent's claim regarding violence and threats by the police should be accepted. I join this, and I will expand.
Many of the respondent's statements "in real time", i.e., the very days during which he was in the detention cell, indicate the beatings and threats directed at him by the police. Thus, for example, on July 17, 1999, the respondent complained to an informant that the police beat him in the eye and chest, while threatening him to confess to raping the girl. The next day, he complains to the informant that the police are beating him and slapping him. On July 20, 1999, the respondent stated in court that during the interrogations he had been kicked in the back.