Judge A. Matza
I agree to accept the appeal, as proposed in the judgment of my colleague Justice M. Cheshin.
Following a reading of the judgment of my colleague Justice Dorner, I would like to comment: There is not, and there cannot be, a dispute that the type of acquittal of a defendant constitutes one of the considerations that the court takes into account in determining the very entitlement of the defendant who is entitled to an indemnity and compensation ruling, and usually even in determining its scope. However, and for the reasons of Justice M. Cheshin, I would refrain from restricting the court's discretion by requiring it to act according to defined and predetermined criteria. Personally, I even doubt whether defining such criteria is possible. The circumstances of the case before us may illustrate the difficulty: in its decision to withdraw the appellant's accusation after hearing all the evidence at trial, the state expressed its opinion that had it known in advance what it knew in retrospect, it would have refrained from filing the indictment. Following a message
The court acquitted the appellant of the charge attributed to him. However, the court's reasons for rejecting the appellant's request for an indemnity and compensation award show that the evidence presented at trial prima facie established his guilt. In other words, had it not been for the state retracting the charge, it is not impossible – and perhaps even close to – that the appellant would have been convicted.
Had we been required, for the purpose of deciding the question of the appellant's entitlement to indemnification and compensation, to determine the type of credit that the appellant was entitled to following the State's notice, we would have faced considerable difficulty. On the one hand, and in light of what was stated in the state's declaration, we should have defined his acquittal as "absolute." After all, according to Justice Dorner, the degree of "absoluteness" of the acquittal is appropriate not only for a case in which there was no basis for filing an indictment in the first place, but also for a case in which in retrospect it became clear that this was the case, and in its request to withdraw the indictment, the state admitted in fact that in retrospect it had indeed found that there was no basis for filing the indictment. On the other hand, and in view of the court's reasons for rejecting the application for indemnification and compensation, it is clear that the appellant's acquittal can no longer be considered except as a "technical" acquittal, which is necessitated only by the State's announcement that it is withdrawing the indictment. If the appellant's entitlement to compensation were derived from the type of his acquittal, we might have faced a gap that seems to be unbridgeable: if we had assumed that the state was caught on the acknowledgment contained in its notice, then we should have said that we are dealing with the person who is acquitted completely, and that in the absence of circumstances justifying the denial or reduction of the indemnity or compensation, he should be entitled to full indemnity and compensation. And if we adopted, as it is, the court's assessment with respect to the chances of conviction, the conclusion derived from this was that we are dealing with a person whose acquittal does not necessarily indicate that he was not involved in the commission of the offense of which he was accused, and therefore he should not be entitled to any indemnification or compensation.