As stated, I would prefer to continue on the path that has been outlined only recently in the rulings [in the Reich case [8] and in the case of Yosef and Pimp [1] – M. 8].
Indeed, it seems to me that where a court determines in clear language that the defendant did not commit the act attributed to him in the indictment – for example: it has been proven to our satisfaction that the defendant did not commit the act attributed to him in the indictment – then it is almost assumable, subject to exceptions, that the court will award him indemnification and compensation. To this, I think, Justice Or will also agree. However, I do not find it justified to imprison the discretion of the court in the cages of "absolute" acquittal ("full" acquittal), "just" acquittal, acquittal "from doubt" and "technical" acquittal. The law does not dictate to us no binary categorization, no ternary categorization, no quadrilateral categorization, and no other categorization, including no multi-categorization. Everything is at the discretion of the court, and the permission is given. In the words of section 80(a) of the Penal Law: Indemnification and compensation will be awarded to the defendant who is acquitted "in an amount that will appear to the court".
A priori categorization – as stated by the majority in the Macmillan case [18] – is capable of binding the discretion of the court contrary to the intention of the legislature. According to the same view, if it determines that the defendant before whom he is acquitted is "absolute" (or "full"), the court itself will in any case refrain from ascertaining the facts of the case on its own merits, whether the merits are "circumstances... justify" the defendant's indemnification for his expenses. As since the acquittal, the recount must begin, and it is by this method of recounting that we decide in the defendant's request for indemnification and compensation. As stated, I will not insert myself into the facts of that case and will not express my opinion as to whether the majority was right or the minority was right on the merits of the matter. In other words, I did not find justice for the patch that the majority put on both eyes when it decided that an "absolute" acquittal was sufficient for a defendant to receive indemnification and compensation.
- Indeed, in the matter of compensation and indemnity there is, and should be, gradual-an intermediate between acquittal and conviction; They deserve to be, and rightly so. Let us remember that as opposed to the first cause of action in section 80 According to the Penal Law, the second ground concerns the circumstances that "justify" the payment of compensation and indemnity, and I will find it difficult to understand how we should deliberately ignore-It is directed from the circumstances of the trial itself, circumstances that are ostensibly the circumstances of the most relevant matter. Compare A Proposal for Costs in Criminal Cases (Law Reform Commission, Canada, 1973). Compare Tentative Proposals for Compensation of Accused on Acquittal (Saskatchewan, Canada, 1987) 23-28.
- Circumstances that justify – or do not justify – payment of indemnity and compensation are all the circumstances of the trial and circumstances adjacent to the trial. In what we said above (in paragraphs 18 to 20) we discussed the circumstances at hand, including: the state was negligent or acted in a manner that did not-properly in the investigation, prosecution or conduct of the trial; The defendant bore the damages-of-Really, etc. In general, these circumstances are divided into three types: Circumstances that concern proceedings-The law includes it; The nature of the defendant's acquittal and the defendant's personal circumstances (circumstances external to the trial). In appropriate cases, it is also appropriate to deny or reduce compensation or indemnity, for example: a defendant who brought upon himself, by acts or statements, the-the charges filed against him, such as misleading the investigating authorities; A defendant who refrained from responding to the accusations leveled against him during the interrogation, etc.
- And finally, as an instruction Article 80 to the Penal Law, House-The trial will not award compensation or indemnification to a defendant who was acquitted unless he finds that "there was no basis for the accusation..." Or he has discovered "other circumstances that justify" granting the request. The burden of proving one of these two grounds rests on the defendant's shoulders; With regard to the first cause of action – that there was indeed no basis for the accusation, and for the matter of the second cause – that there were circumstances that justified indemnification and compensation. With regard to this burden, we will add that it seems that after Basic Law: Human Dignity and Liberty, and until he decides on indemnification and compensation, he will provide a home-The trial itself in circumstances that are not particularly serious. Of course, we will not be able to estimate the weight of those circumstances – what-Even if there is no one case that is similar to the other, this is the general line that we will follow.
and from the general to the individual
- And these were the main points in our case: The complainant lived in the house-She worked in a certain factory in Jerusalem. The appellant worked as a driver for a company that drove her every day-Every day at home-Sunshine to Jerusalem, and back. According to the complainant, the appellant drove one day, after work hours, to her home at home-Sunshine, and on the way it attacked and ran. The complainant further claimed that as a result of that rape she became pregnant and aborted the child (in the sixth week of her pregnancy) and that the documentation about-The abortion remains in the hands of the doctor. Following her complaint, the complainant was examined, and the inspection report determined that "most likely a complete premature miscarriage." The police conducted an investigation, collected statements, and added and collected evidence from various pieces of evidence to investigate the complaint. There was also a confrontation between the complainant and the appellant, but the appellant denied the rape, adding that he did not know the complainant at all. The appellant was arrested, and apart from the denials of the act of rape, he continued to raise an alibi claim, namely: that on the day of the rape, as it were, he was in a different place in the country. The police took testimonies and collected evidence on this issue as well.
- At the end of the investigation, the-The Jerusalem District Court wrote-An indictment in which the appellant was charged with the offense of rape under aggravated circumstances (see paragraph 2 above). Reporter-The indictment summarizes the complainant's complaint about the rape by the appellant; About her pregnancy and the miscarriage of the fetus. The complainant was also interrogated after filing a report.-The home indictment-The Trial. She repeated her first version regarding the pregnancy test, but this time too she did not have the test form. She didn't even remember the doctor's name.
- With the submission of a reporter-indictment, and after being convinced that prima facie evidence to prove guilt had been collected into the investigation file, the-The trial of the appellant's detention until the end of the proceedings. In this decision, the House of-The sentence is that there is evidence in the police file that refutes the alibi version raised by the appellant.
- The police further investigated the alibi's claim, and new evidence was collected in the police file, which could have strengthened the alibi argument he had raised. The complainant, for her part, further gave an additional statement that could have further incriminated the appellant in the act of the offense.
The appellant requested a reconsideration of the detention decision. The court again examined the evidentiary material – including the new evidentiary material – and although it was of the opinion that the appellant's alibi version was not at all solid ("Counsel for the prosecution is correct that the question of the applicant's alibi has not yet been fully clarified, and there are still doubts in the applicant's version..."), it decided that the same version is capable of creating, even prima facie, a crack in the prosecution's evidence ("On the other hand, it is clear today that in view of the completed investigation material, The alibi version presented by the applicant appears to be more well-founded and creates prima facie doubt on the prosecution's evidence"). Thus, despite its determination that "even at this stage, after the completion of the investigation, the evidence provides a prima facie sufficient evidentiary basis to prove the act of rape attributed to the applicant...", the court decided to release the appellant from detention on the condition that he be confined to his home. The appellant appealed this decision on the grounds that he should be released without restrictive conditions, but the Supreme Court rejected the appeal by deciding, inter alia, that there was "more than doubt" in the alibi version raised by the appellant and that "there is a prima facie sufficient evidentiary basis for the appellant's arrest".
- The appellant's trial began on April 21, 1998, as order. In her testimony before a house-In the trial, the complainant repeated the version of rape, including the fact that she became pregnant and the abortion surgery she underwent. Additional witnesses testified on behalf of the state, and during the prosecution's case, the police investigator informed the-The court ruled that an examination conducted "in recent days" did not find any documentation of the-
About the pregnancy test - not at the HMO clinic or at a gynecologist. Afterwards, the defense case began, and the appellant and other witnesses testified. When the defense case was over, the continuation of the hearing was postponed to the scheduled date, but shortly after that date, on May 21, 1998, the State submitted to the court written notice of its decision to withdraw the appellant's charge. We brought this statement at the beginning of our journey (see paragraph 3 above) and we will bring it again: