The prosecution did not accept the decision, and decided to appeal it to the Supreme Court. In the hearing that took place before me on July 24, 2017, I allotted the claim a few days to file the appeal. The appeal was filed on July 27, 2017. On July 30, 2017, the Supreme Court decided to delay the implementation of the decision.
- The Supreme Court's decision in the appeal was given on August 27, 2017 by Justice Amit. The decision outlined the outline according to which the defense requests to examine and copy computer materials and mobile phone products. At the same time, the unique circumstances that accumulated in the current proceeding were detailed: the prosecution did not appeal Judge Mack-Kalmanovich's first decision of June 13, 2017, but nevertheless tried to appeal against the selection method determined in the first decision, and not only the technical mechanism determined in the second decision of July 9, 2017; Errors were made in the case, some of which may be inexcusable, in that the prosecution did not document the search it carried out in the digital products and the manner in which the computer researcher operated; The computer investigator did not properly document the search he conducted, carried it out in an in-depth manner, and there is truth in the defense's claim that no searches were carried out in Malka's email inbox or WhatsApp; The indictment describes that the mobile phones were used to commit the offenses, and that WhatsApp messages are even quoted in the indictment, so that unlike other cases, the mobile devices are at the center of the investigation, and the existence of a potential contribution to Fisher's defense in the digital products cannot be ruled out.
From here, Judge Amit examined how, in light of these unique circumstances, it is possible to get out of the impasse in which the proceeding found itself due to the dispute that arose regarding the implementation of Judge Mack-Kalmanovich's decisions, and in order to be able to begin Malka's cross-examination soon. In this context, Malka's suggestion that he himself filter the material in the offices of the Department for the Investigation of Police was mentioned, and the advantages of this proposal were noted. It was held that "The time has come to put an end to the never-ending saga before us", and that Malka will perform the screening for three working days; The prosecution will then inspect his work for an additional three working days; The defense will be entitled to search and review the rest of the material in the offices of the Department for the Investigation of Police for five working days. Justice Amit added that given the limited scope of material for the defense's approach, it is presumed that these dates will be sufficient to locate and discover the relevant material that is at the heart of the matter; And if a dispute arises regarding one item or another, the parties will turn to the District Court in order to decide the matter.
- The Supreme Court's decision rejected the prosecution's position, stating that "All material copied by the investigators should be viewed as 'collected material'" (paragraph 30), and therefore the prosecution must ensure that the defense receives all the seized digital information to exclude material that violates confidentiality, privacy and other conflicting interests. The Department for the Investigation of Police, which has already been responsible for halting the trial for six months (since the end of Malka's main interrogation on February 27, 2017), during which Fisher is placed in electronic handcuffs and the evidence is supposed to be heard continuously, continued to make it difficult for the defense to exercise its elementary right to review the relevant material from the digital material copied by the interrogators. And so, even after the decision in the appeal, nearly half another year continued to pass, during which Malka did not return to the witness stand, and all the resources were directed to dealing with the issue of reviewing the materials – which, in the proper conduct of the investigative authority, should have been fully regulated even before the indictment was filed.
During this period, additional decisions of this Court and of the Supreme Court were required in order to advance the provision of the 'dump' materials for the defense. Thus, on October 25, 2017, in the framework of the Supreme Court's decision on the state's request to delay the implementation of Judge Mack-Kalmanovich's decision from that day, Justice Amit wrote that "In the 'never-ending symphony' related to the investigative materials in this case". On November 2, 2017, Judge Mack-Kalmanovich was required to issue an additional decision clarifying to the prosecution its obligations on the matter; And I also needed it in the hearing on November 13, 2017. On November 23, 2017, the Supreme Court held a hearing on the state's appeal against the decision of November 2, 2017; and on December 4, 2017, the decision was made in the appeal regarding the continuation of the material screening outline. However, even this was not enough to put the parties on track to put an end to the endless arguments. Therefore, I ordered the renewal of Malka's testimony on January 29, 2018, even though all the materials had not yet been transferred to the defense in accordance with the decisions. This is in the hope that it will be possible to advance the screening of the materials from Malka's phones during his cross-examination. This move also did not help. Thus came a unique procedure in which 58!) meetings devoted to the discussion of digital products according to Article 108 To the Kindness. These meetings were held in parallel with the evidentiary hearings, under the supervision of the court, which was required to address the questions that arose during the screening and screening of the materials by the parties' counsel in the courtroom. If necessary, during these hearings, Malka, his counsel and counsel for the State Committee were contacted for their comments regarding the materials whose content raised questions of confidentiality or privacy. During those meetings, a reference was given tens of thousands of digital files that the Department for the Investigation of Police (and not the court or the defense team) had to sort and filter Fetus To file the indictment.