Criminal Case (Petah Tikva) 22481-04-17 State of Israel v. Al-Jamal Moving Ltd. - part 4

The framework of the discussion

97. As detailed above, this indictment was filed against 24 defendants. The case of most of the defendants is over.  This judgment deals with the remaining defendants.  Below I will refer to the evidence and arguments regarding each defendant on his own.

Defendant 8

98. The undisputed facts regarding defendant 8 are that this defendant was the owner of a company (defendant 7), which dealt in the field of waste and employed drivers for this purpose. (See P/85).  In accordance with the agreement signed with Mifaat on March 1, 2015, the defendant, through the company he owns, operated the dry waste transfer station in Yarhiv (P/3, P/4).  The agreement was extended for three years in a contract signed on October 15, 2015 (P/118).  As part of this agreement, the defendant undertook to Mifaat that the waste that would leave the transit station would be transferred only to authorized landfill sites (paragraph 32 of T/118).
99. It should be noted that at the same time, an agreement was also signed between Defendant 7, which was owned by Defendant 8, and Defendant 20, which was owned by Defendant 21, regarding cooperation for the purpose of burying dry waste at Site 28 belonging to Defendant 20. (See P/282).
100. Owned by Defendant 8 or directly or through Defendant 7, there were a number of vehicles, as follows:
101. "Scania" truck M.R. 60-818-13 - The defendant's ownership of the truck was proven by means of a public servant's certificate drawn up by Mrs. Mira Dayan (P/186).
102. Wagon M.R. 61-820-15 - The defendant's ownership of the wagon was proved by means of a public servant's certificate drawn up by Mrs. Mira Dayan (P/186).
103. "Scania" truck M.R. 15-963-58 - The defendant's ownership of the truck was proved by the defendant's confirmation in his statement (P/32, p. 9, line 4) and by means of the public servant's certificate drawn up by Mrs. Mira Dayan (P/186).
104. Gala M.R. 99-217-68 - The defendant's ownership of the cart was proved by means of a public servant's certificate drawn up by Mrs. Mira Dayan (P/186).
105. Gold-colored Mercedes truck M.R. 91-947-33 - The defendant's ownership of the truck was proven by means of a "vehicle license" (P/123) in which the name of defendant 7 appears as the owner. In addition, ownership was proved by means of the defendant's confirmation in his statement (P/260, p. 7, line 21), the defendant's confirmation in his statement (P/32, p. 9, line 2) and by means of the public servant's certificate prepared by Mrs. Mira Dayan (P/186).
106. Volvo truck M.R. 61-618-70 - The defendant's ownership of the truck was proved by the defendant's confirmation in his statement (P/260, p. 7, line 21), additional confirmation in his statement (P/32, p. 8, line 23) and the public servant's certificate prepared by Mrs. Mira Dayan (P/186).
107. Mercedes truck 92-108-33 - The defendant's ownership of the truck was proved by the defendant's confirmation in his statement (P/32, p. 9, line 1) and by means of the public servant's certificate prepared by Mrs. Mira Dayan (P/186).
108. Truck "Mann" M.R. 75-058-12 - The defendant's ownership of the truck was proved by the defendant's confirmation in his statement (P/260, p. 7, line 21), by means of additional confirmation in his statement (P/32, p. 8, line 19) and by means of the public servant's certificate prepared by Mrs. Mira Dayan (P/186).
109. Tow cart M.R. 49-935-31 - The defendant's ownership of the cart was proved by means of a public servant's certificate drawn up by Mrs. Mira Dayan (P/186).
110. "Scania" truck M.R. 61-054-13 - The defendant's ownership of the truck was proved by the defendant's confirmation in his statement (P/32, p. 9, line 4) and by means of the public servant's certificate prepared by Mrs. Mira Dayan (P/186).
111. Towed cart M.R. 98-826-71 - The defendant's ownership of the wagon was proved by means of a public servant's certificate drawn up by Mrs. Mira Dayan (P/186).
112. Volvo truck M.R. 73-867-52 - The defendant's ownership of the truck was proved by the defendant's confirmation in his statement (P/32, p. 8, line 25) and by means of the public servant's certificate prepared by Mrs. Mira Dayan (P/186).
113. Volvo truck M.R. 59-672-61 - The defendant's ownership of the truck was proved by means of a public servant's certificate drawn up by Mrs. Mira Dayan (Public Works Regulations N/20 and T/186). and also through the defendant's testimony in his statement (P/260, p. 7, line 23), in his statement (P/32, p. 9, line 7) and in his testimony in court (May 23, 2022, p. 615, line 21).
114. Orange "Caterpillar" shovel (model 924K) – the defendant's ownership of the truck was proven by the defendant's confirmation in his statement (P/32, p. 9, line 10).
115. Orange "Fiat" shovel with W190 inscription - ownership of the shovel was not proven by direct eyesight. However, according to the confession of the defendant (P/32), who is in possession of 3 shovels.
116. Volvo Shofal L120F M.R. 7949 - The defendant's ownership of the truck was proved by the defendant's confirmation in his statement (P/32, p. 3, line 19).
117. Yellow Volvo Shovel L150F - The defendant's ownership of the truck was proven by the defendant's confirmation in his statement (P/32, p. 3, line 17).
118. An orange shovel with a 190W blue inscription "N. Feldman & Sons Ltd" – the ownership of the shovel was not proven by direct eyesight. However, according to the defendant's confession (P/32), he is in possession of 3 shovels.

Documented Waste Consequences

119. The indictment in criminal case 22481-04-17 in section 41, details 83 waste disposals carried out by these vehicles or by vehicles that made their way directly from the "Yerchaiv" transit station. The accuser presented direct evidence of the perpetration of these consequences. This evidence was presented by the witness Mr. Felix Feinstein, who, as stated above, testified in court and was cross-examined by counsel for the defendants in a number of sessions before the Honorable Judge Nureli, and after the change of position, he again testified briefly before me.  This witness prepared action reports and took photos and videos documenting the consequences of the waste, which were submitted to the court, as detailed as follows:
120. 4 Consequences of waste in the pit dated 11 May 2015 by means of the tools they carried out - M.R. 60-818-13, cart M.R. 61-820-15, mann M.R. 75-058-12 and towed cart M.R. 98-826-71 - were proved by exhibits P/6 (action report by witness Felix Feinstein), P/6A (photographs), P/8 (CD) and testimonies from the transcript of October 25, 2018, pp. 52-54.
121. 3 Consequences of waste in the pit dated 13 May 2015 using the tools they carried out - Volvo MR 73-867-52, cart MR 91-833-72 Volvo MR 59-672-61 - were proven by exhibits P/7 (action report by witness Felix Feinstein), P/7A (photos), P/8 (CD) and testimonies from the transcript of October 25, 2018, pp. 54-56.

• 4 Consequences of waste in the pit from 17.5.15 using the tools they carried out - Volvo M.R. 73-867-52, Galley M.R. 91-833-72, Renault M.R. 49-935-311 and Gala M.R. 99-217-68 - were proved by the exhibits P/9 (action report), P/9A (photographs), P/8 (CD) and testimonies from the minutes of October 25, 2018, pp. 56-62 and of November 29, 2018, pp. 54-55.

28. One dumping  of waste in a pit dated 28.12.15 by Volvo M.R. 73-867-52 Evidence by exhibits P/13 (action report), P/13A (photographs), P/26 (CD) and testimonies from the transcript dated 25.10.18, p. 72.
29. One dumping of waste in the pit dated 31 January 2016 by Mercedes M.R. 91-947-33 was proved by exhibits P/14 (action report), P/14A (photographs), P/26 (CD) and testimonies from the minutes of October 25, 2018, p. 73.
30. 3 Consequences of waste in the pit dated February 4, 2016 using the tools carried out by Mercedes 91-947-33, Volvo MR 61-618-70 were found to be proved by exhibits P/16 (action report), P/16A (photos), P/26 (CD) and testimonies from the minutes of October 25, 2018, pp. 82-83.

• Consequences of waste in the pit from February 9, 2016. One disposal  using a Mercedes MR 91-943-33 was found to be proven by P/18, P/18A and CD P/26.  On the other hand, the alleged dumping by a white Volvo/Mercedes truck was not proven by the accuser in submitting the exhibits in this matter to the case.  The truck's license number was not observed, and it cannot be attributed to any of the defendants.  Therefore, they cannot be convicted of this implication. 
• 3 Consequences of waste in the pit dated 23 February 2016 by vehicles Volvo Levana 73-867-52, MAN 75-058-12 Volvo 61-618-70 were proved by exhibitors P/24 (action report), P/24A (photographs), P/26 (CD) and testimonies from the minutes of October 25, 2018, p. 87. and also by the presence of defendant 8 at the time of the dumping.

125. 5 Consequences of waste in the pit dated 30 June 2016 by Scania and Shopel were found to be proved by Exhibit 57 and Minutes Committee of 25 October 2018, p. 125.
126. 10 Consequences of waste in the pit dated 1 July 2016 by Scania and Shopel were found to be proved by Exhibit 57 and Minutes of 25 October 2018, p. 125.
127. 7 The consequences of waste in the pit dated 2 July 2016 by truck and shovel were found to be proved by Exhibit 57 and the minutes of 25 October 2016, p. 125.

• 6 Consequences of waste in the pit dated 3 July 2016 by truck and shovel were found to be proved by Exhibit 57 and Minutes Committee of 25 October 2016, p. 125.
• 8 Consequences of waste in the pit dated 4 July 2016 by truck and shovel were found to be proven by Exhibit 57 and testimony from the transcript of 25 October 2016, p. 125.
• 7 The consequences of waste in the pit on 5 July 2016 by truck and shovel were found to be proven by Exhibit 57 and testimony of 25 October 2016, p. 125.

43. 5 Consequences of waste in the pit dated August 9, 2016 using Mercedes MR 91-947-33, Scania MR 15-963-58, Mercedes MR 92-108-33, cart MR 43.011-67 and Shovel Cut driven by defendant 8 were proved by exhibitors P/80 (action report), P/82 (photos) and A/83A (CD).

• 3 Consequences of waste in the pit dated 10 August 2016 by means of Scania M.R. 15-963-58, Scania M.R. 61-054-13 and Mercedes M.R. 91-947-33 were proved by the presence of defendant 8 at the scene, and by means of exhibits P/60 (action report), P/60A (photographs), P/83A (CD) and testimonies from the transcript of October 25, 2018, p. 134.
• 2 Consequences of waste in the pit dated 28 August 2016 using Volvo MR 61-618-70 and Volvo MR 73-867-52 were proved by exhibits P/87 (action report), P/90 (action report), P/89 (photos) and A/91 (photos).
• One dumping of waste in the pit dated 30 August 2016 by Volvo M.R. 59-672-61 was found to be proven by exhibits P/92 (action report) and P/94 (photos).
• One  dumping of waste in the pit dated 6 September 2016 by a Volvo Shovel and a Volvo truck M.R. 73-867-52 was found to be proven by exhibits P/95 (action report),97 (photos), P/98A (CD).

341. 2 Dumping of waste in the pit dated March 28, 2017 by Shopel M.R. 7949 and Scania M.R. 15-963-58 were proved by means of P/177 (action report), P/178 (photographs), P/211 and testimonies from the minutes of February 11, 2020, p. 308, and the minutes of June 1, 2020, p. 341.

• One dumping of waste in the pit on 29 March 2017 by a white scania was proved by P/177, P/178, P/212, testimony from the transcript of 11 February 2020, p. 308, and the transcript of 1 June 2020, p. 341.
• One dumping of pit waste  dated May 16, 2017 using Scania M.R. 15-963-58 was proved by Exhibit P/13 (Action Report) and testimony from the minutes of May 16, 2017.
• As to the waste disposal of September 7, 2017. With respect to the two attributed consequences that were carried out by the white Scania M.R. 96-118-79, the Renault M.R. 97-595-86, the Schupel Volvo Model L150OF and the M.R. 96-118-79 wagon, the accuser did not meet the burden required to prove them by means of the exhibit that was submitted and not by the beginning of the testimony of the prosecution witness Feinstein.  In addition, the ownership of the white Scania, Renault and wagon vehicles described above has not been proven and the acts cannot be attributed to any of the defendants.  Therefore, they should not be convicted of these consequences.  However, the accuser proved that one waste was dumped  on that day by the vehicle M.R. 83-569-53 using P/128, which was making its way from the "Yerchav" transit station in the direction of Qalansua.

120. Counsel for defendant 8 raised a series of arguments regarding the reliability of what was stated in these reports. I cannot accept his arguments. In addition to Mr. Feinstein, witnesses who prepared these reports testified before the court.  Erez Avni, Mr. Yaniv Green and Mr. Sagi Azani.  They described their work and how the evidence was collected.  I did not find any flaw in their testimony.  The arguments of the defendant's counsel are based on hypotheses for which no basis has been presented.  For example, counsel for defendant 8 argues that "it is not possible to exclude the possibility...  that the license plate numbers were given to the lookouts in the pit by the investigators at the Yerkhaiv station."  What is the basis for this claim? The same interrogators testified before me, and were even careful in their words.  For example, Mr. Erez Avni, who testified at the meeting held on February 11, 2020, described his way of working and said that he observed the trucks through the camera lens and that in some cases he may have used the enlargement of the images later in the office.  Contrary to the claim of defendant 8 in his summaries, this witness actually said the opposite of what was quoted by counsel for defendant 8.  He testified that he did not receive the truck numbers from the investigators at the Yerkhaiv station.  He confirmed that the second time he observed he had already known some of the trucks (p. 322 in the minutes of the hearing of February 11, 2020).  Counsel for defendant 8 further argued regarding this witness that he was motivated by a tendency to incriminate the defendant, and as evidence he pointed to an incident documented on Monday at 8:00 a.m., where a truck was observed entering the area and not spilling garbage, and the witness in his cross-examination said that it was possible that waste had indeed been spilled and that this was not recorded by him.  However, this incident was not included in the indictment at all.  This fact actually indicates the caution taken by the accuser in this matter while accusing the defendant of events that are backed up by direct and clear evidence.
121. In his summaries, counsel for the defendant also raises a general argument regarding defects in the searches and the seizure of evidence. This argument is made without any explanation or reasoning, but with a casual reference to page 260 of the minutes of the hearing of February 4, 2020. At the hearing, counsel for the defendant raised arguments in the framework of cross-examination, but these were answered by the accusing counsel, with reference to search warrants found in the court file, for example: P/127.  In a decision given in the course of the hearing, the ISA determined that the defendant would be able to raise these arguments as part of his summaries, but after the arguments were raised, a casual reference was made to the transcript.  This reference is not intended to establish a substantive claim.  The searches and seizure of evidence were carried out in accordance with orders issued by the court, and to the extent that the defendant has any claims regarding the legality of these orders or the manner in which they were operated by the investigating unit, he must raise these claims, detail them and substantiate them.  This was not done by examining the material before me, and indeed I did not find any basis for these claims.
122. Counsel for defendant 8 also points to reports marked P/15 and P/15A, in which empty truck entrances are documented, without throwing waste, and according to him, this evidence strengthens the defendant's claim that he removed waste in his area, and therefore the documentation shows the investigators' mistakes in identifying the area of the pit and accusing the defendant of actions that were not carried out in the pit at all. However, a review of the list of evidence that I detailed above indicates that the indictment did not attribute to the defendant the consequences of waste in respect of what is detailed in these reports. Again, it can be learned from this that the accuser did not selectively document what was happening there, but accused the defendant by means of evidence that directly pointed to the commission of offenses by him, and did not do so when there was no evidence to the contrary.
123. Another argument raised by counsel for defendant 8 relates to an observation report prepared by the witness Felix Feinstein (P/7) documenting the consequences of waste in the pit on May 13, 2015. His claim is that the report describes the entry of the same truck 10 minutes apart, and this is impossible. This report did establish the implications detailed above.  The witness Feinstein testified in detail about this report as part of his main interrogation and described the incident.  This incident is also documented in photographs submitted to the court and marked P/7A.  There you can see debris thrown from the same truck, with the filming hours indicated on the photos.  The question raised by counsel for defendant 8 is indeed a question that needs to be examined, but the defendant's ISA, who cross-examined the witness at length at the meeting held on October 3, 2019, and even focused on his cross-examination of this incident (p. 186) and questioned the witness regarding the location of the observation, the conditions of visibility and the limitations of vision, did not ask the witness questions on this matter.  Thus, the court has evidence that clearly documents this event, along with clear and orderly testimony of the witness.  On the other hand, it will be of counsel for defendant 8, which is raised in his summaries, without the witness being given the opportunity to deal with it.  This is not enough to cast doubt on the testimony of the witness who is accompanied by clear evidence.
124. Beyond the above, it should be noted that Defendant 8 himself took responsibility several times in his testimony for pouring waste into the pit. At the beginning of his main testimony, he confirmed that he had indeed committed an offense and threw garbage, but that in his opinion he was chosen as a single victim even though there are other culprits: "During this period, I had my land, there was a pit a long time ago, I took it and poured a pit and I confess, I said I confess, they took me for interrogation about this story, they said you committed a crime, accuse me of a broken pit like millions of cubic meters and you don't know who closed it that you came to the pit at the Khadija site, you come weighing, They would consider there, if you go you get stolen, it's child's play.  You go into a pit, you see a huge unapproved pit, I don't understand who approved, every day the environment would approve, there would be inspectors, what is my interest in building such a pit.  There were millions, I don't know who took this money, I don't know what I did, the government in the Knesset came to this story, no one corrected it, there were fires and no one repaired it, in the end I am the victim.  I worked like a donkey, so that he would come and tell me, I show him.  The first time they came to me, taking pictures, you don't understand the first time they are filming and I told him I made a mistake even on my land" (p. 534, minutes of the hearing of 31 January 2022).
125. The same is true of the same testimony: "There is this land, I don't know who dug it here, next to this pit, at the time Khadija dug and entered, I didn't talk and nothing, my brothers don't know anything. At the time, I was a human being, I came in, there were people filling my pit. My pit was next to him.  You have to come to the field to see what this is about.  The pit on my property, I don't know who dug it.  I have my own land, a hole was dug in it a long time ago, I don't know who, my land was inherited there, I took it and the pit was closed with the waste I poured into the pit" (ibid., p. 536).
126. In his cross-examination, the defendant reiterated this: "You said that you knew that with your license you are only allowed to go to authorized sites.
127. That's right.
128. If you went to an unauthorized site?
129. That's right.
130. So why did you do that?
131. On my property I saw it as an offense and I am sorry and I cleaned up and asked everyone to take".  (Minutes of the hearing of May 23, 2022, p. 618)
132. Further support for the prosecution's evidence is found in the testimonies of a number of drivers, which were submitted to the court file, in which the drivers confirm that they poured waste into the pit on the direct orders of defendant 8, as follows:
133. 'Abdallah Salameh (P/31)
134. Majdi Handalko (P/43)

• Nawaf Jamhur (P/44, P/45)

1. Lukman Salameh (P/46)
2. Osama Jamal (P/48)
3. Samir Othmana (P/49).
4. It should also be noted that the defendant was documented in photographs being inside the pit (P/26, P/80).
5. In view of the aforesaid rule, I have come to the conclusion that the accuser has proved, beyond a reasonable doubt, 80 dumps of waste into the pit carried out by defendant 8.

Waste implications that the accuser seeks to prove from an analysis of the computer outputs of the Yirhiv station and the Koah site

130. In addition to the consequences of the waste documented and detailed above, the accuser attached to the indictment two appendices, which she claimed were sufficient to prove 2,858 additional waste dumps in the pit.
131. The accuser's argument is that from an analysis of the waste reports that came out of the Yerhiv station versus reports of waste entering the 28 site, as well as reports based on the observation of the security cameras taken from the Yerhiv station, it is possible to learn about those thousands of cases in which waste left the Yarhiv station, but made its way to the pit and not to the landfill in a legal way.
132. These reports indicate that trucks loaded at the Yerhav station were loaded with waste and construction waste. Legally, these trucks were supposed to arrive at the 28 site. However, a careful and thorough analysis by the witness, Mr. Felix Feinstein, indicated that many of them did not arrive at Site 28, and even when they arrived, there was a discrepancy between the material that was loaded on them at the Yerkhav station and the material that arrived at Site 28 (P/53, P/54)
133. The witness was not satisfied with this, and therefore, as for a certain period, he took the trouble to watch the cameras that documented what was happening at the Yirhiv station and prepared a viewing report (P/55), which compared what was recorded in the computer files with what could be observed with the naked eye. The first conclusion that emerges is that some of the trucks that were observed were indeed recorded in the station's computers, but there were also trucks that were observed and were not registered. There were also trucks that were observed and recorded, but loaded with waste different from the one recorded in the station's computers.
134. A comparison of these reports indicates that a lot of waste was loaded at the Yerchaiv station and was supposed to make its way to the Kach site, but did not reach there.
135. In view of all these facts, together with the extensive investigative material presented above, which indicated extensive activity of dumping waste by defendant 8 in the pit, the witness came to the conclusion that the waste made its way into the pit. This conclusion is consistent with the results in the field, which indicate the large amount of debris that accumulated in the pit during that period.
136. This conclusion is supported by the fact that in the records regarding those trucks, it is recorded that their destination is: "Qalansua". And since there is no other landfill site in Qalansua other than the cistern, the obvious conclusion is that the waste reached the cistern.
137. The fact that there is no landfill site or transit station in Qalansua was evidenced by means of a public servant's certificate prepared by Mr. Shmuel Yerushalmi (P/185). The Director of Business Licensing in the Qalansua Municipality, Mr. Mahmoud Nassar, even confirmed in his testimony that no business licenses were granted to operate a landfill in the city of Qalansua.
138. Defendant 8 himself confirmed in his cross-examination that there is no station and no landfill in Qalansua (transcript of the hearing of 23 May 2022, p. 617).
139. The accuser is of the opinion that this set of circumstantial evidence leads to only one conclusion, and that is that all the trucks documented in these reports dumped the waste that was found in them into the pit.
140. With regard to the manner in which circumstantial evidence is examined, the Supreme Court ruled that the following should be acted:

"The power of circumstantial evidence is no less than the power of direct evidence (Criminal Appeal 394/20 Chen v. State of Israel, para. 45 (November 2, 2021)).  Circumstantial evidence differs from direct evidence in that it does not directly prove the existence of a fact, but rather it directly proves the existence of a circumstance that serves as a basis for determining the existence of the fact that requires proof, by way of drawing conclusions based on logic and life experience (Yaakov Kedmi on Evidence, Part 2 790 (2009) (hereinafter: Kedmi)).  The inference stage, which is not based on perception by the senses, but rather on understanding and common sense, is the strength and weakness of circumstantial evidence, and therefore caution is required in this process (Criminal Appeal 8328/17 Jaber v. State of Israel, para. 7 (July 28, 2019)).  Accordingly, a defendant can be convicted on the basis of circumstantial evidence "only if the incriminating conclusion, which is inferred from the circumstantial evidence, clearly and decisively prevails over any alternative thesis and no other reasonable conclusion remains" (Criminal Appeal 543/79 Nagar v. State of Israel, IsrSC 35(1) 113, 141 (1980); I have also discussed this in judgments in the trial court, see: Serious Crimes Case (Hai District) 55684-02-13 State of Israel v. Geffen,  Page 31 (May 12, 2014); Serious Crimes Case (Hai District) 10451-05-09 State of Israel v. Gazal, page 32 (October 17, 2010)).