However, she adds as follows (ibid.):
Such situations, naturally, will be rare. The rule should be to pay expenses and compensation to defendants who have been acquitted completely.
Justice Englard concurred with Justice Dorner's opinion, while Justice Orr, in the minority, held a different opinion. In his words (ibid. [18], at p. 311):
My approach on this issue is different from that of my colleague Justice Dorner, who holds that there is a rule according to which when the acquittal is "absolute," the defendant is entitled to his defense expenses.
After briefly reviewing the Supreme Court's rulings in the Reich [8] and Yosef and Pimp cases [1], Justice Or summarizes his remarks, and this is what he tells us (ibid., at p. 313):
... I would refrain from establishing a rule regarding the right to receive defense expenses and compensation for a defendant who is acquitted, in the presence of one circumstance, even an important circumstance such as an "absolute acquittal" of the accused. In my opinion, we should adhere to the rule, according to which the court is granted broad discretion in the matter, and that each and every case must be considered according to all its circumstances.
... I would prefer to continue following the path that was outlined, but recently in the rulings [in the Reich cases [8] and Yosef and Pimp [1]].
- In Parashat Macmillan [18] The prosecution withdrew the indictment after hearing the defense witnesses, and-The court decided to acquit the defendant as an order Section 94(a) To the Kindness. This acquittal, the majority justices ruled, is an "absolute" acquittal (or a "full") acquittal, and he said in this context Judge Englard (Name, p. 307):
In my opinion, an acquittal under section 94(a) of the Criminal Procedure Law [Consolidated Version] is a "full acquittal". The legislature simply states that the prosecutor's withdrawal from the charge, after the defendant's response to the indictment, brings with it the acquittal of the defendant from that charge. In the framework of this acquittal, there is no room to give weight to the thoughts and considerations of the prosecution in retracting the charge. The withdrawal of the indictment prevents a reasoned verdict by the court. In these circumstances, it must be assumed, for the defendant's right to defense expenses from the State Treasury, that the acquittal is complete.
- The disagreements between the majority justices and the minority judge revolved both over the fundamental issue of the status of an "absolute" acquittal (or a "full" acquittal) and the question of whether the defendant McMillan was entitled to indemnification for expenses he incurred in his trial (this was a traffic offense and the defendant was not arrested at all). Our concern, of course, is only with the fundamental issue.
- It seems that the fundamental differences of opinion between the majority and the minority in Parashat Macmillan [18] They swelled and intensified beyond their natural and proper dimensions. This is reflected in the minority words of the Judge Or Saying these words (Name, p. 313):
As to the practical result in a case where there is an "absolute" acquittal, it is very possible that there is not much distance between my colleague Justice Dorner's approach and that of mine. On the one hand, my colleague also states that there are exceptions to the rule on which she based her judgment... On the other hand, I am also of the opinion that if it is proven, positively, that the defendant did not commit the offense attributed to him, then this is a consideration of importance and weight within the considerations of whether to obligate the state to bear the defense expenses of the defendant. But