Moreover, the fact that Malka is the main state witness in the present proceeding (even in comparison to the other state witnesses) and whose incriminating statements pass like a middle bolt throughout almost all of the charges, clearly shows that already at the time of the filing of the indictment, the Department for the Investigation of Police knew that Malka would testify in the prosecution's case, and not as a defendant testifying in his defense in the defense case. This is after he pleads guilty and his sentence is sentenced, as indeed requested later by the accuser's counsel in the hearing of July 22, 2015 (p. 22 of the transcript). Only in this way could Malka be made a prosecution witness in the framework of a joint indictment, in accordance with Section 155(a)(1) Otherwise, the prosecution would have faced the rule that accomplices to an indictment are not qualified to testify as prosecution witnesses against each other in the same trial (Criminal Appeal 169/74 Kaduri v. State of IsraelIsrSC 29(1) 398, 401-402 (1974); High Court of Justice 11339/05 State of Israel v. Beer Sheva District Court, paragraph 6 of the judgment of Justice Procaccia (October 8, 2006)).
In view of the importance and centrality that the Department for the Investigation of Police considered to attribute to Malka's testimony for the purpose of proving the charges, it is impossible to accept the claim that she would have filed the joint indictment without knowing in advance that Malka would testify to the other defendants in the prosecution's case. This is especially the case, given that this is the department's flagship case, without a doubt the most significant and complex case it has investigated, and which has been accompanied by the most senior echelons in the department and the State Attorney's Office. It is impossible to accept that in such a case there will be such a basic fault. Even if you say that there was a certain expectation that Malka would choose to testify in his defense (and above it was explained why there is no room for such an assumption), it is not at all reasonable that the Department for the Investigation of Police would have risked waiting for the submission of his confessions to the other defendants only in the framework of the defense case, in a way that might have exposed her to the argument of 'no reply to guilt' on the part of these defendants (and in this context, there is not much in assessing the chances of such a claim. Since there is no way to know what the day will bring, including the possibility that a certain defendant will announce already during the prosecution case that he does not intend to testify in his defense – compare and distinguish: paragraph 13 of my decision of September 3, 2020 in the motion of defendant 4). At the same time, the prosecution had at its disposal a paved and safe way to avoid these concerns by filing separate indictments.
- The many question marks that have accumulated around the manner in which the state's witness agreement with Malka was drafted have intensified in light of testimony given by Malka in December 2021 at the Central District Disciplinary Court of the Israel Bar Association, regarding favors that he had promised him orally and without documentation by Moshe Saada, who served during the relevant period as the deputy director of the Department for the Investigation of Police and who signed the state's witness agreement with him on its behalf. and later a member of Knesset (hereinafter: Dining). As a result, the prosecution announced in an unusual manner on September 15, 2022, near the end of the prosecution's case, its decision to conduct an additional investigation into the case. As a result of the completion of the investigation, seven new prosecution witnesses were added to the indictment, including two defense attorneys who represented Malka during his detention (Attorney Adi Carmeli and Attorney Ofer Bartal). The investigation was completed in November 2022, and a restaurant was also testified. No less unusually, the completion of the investigation was carried out by the Competition Authority, due to suspicions of wrongdoing committed by senior officials of the Department for the Investigation of Police. After the investigation was completed and the indictment was amended, a number of witnesses who were interrogated by the Competition Authority testified before me, including Saada, Adv. Carmeli and Adv. Bartal, as well as the Competition Authority's investigator who collected the messages, Sharon Sheleg.
In his testimony, Saada tried to explain the difficulty presented above, by saying that at the stage when the indictment was filed, Malka was not a key witness in terms of the prosecution: "We didn't rely on Eran Malka at this stage, not at all... We relied on all the evidence in the case... If he had been a key witness, we would have separated the charges and filed them separately. He was not a key witness at this stage" (pp. 22329-22327 of the transcript).