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In this state of affairs, the District Court's ruling, as well as the state's current position, reflect an ill-placed acceptance of a blatant and grave omission. We are dealing with a criminal proceeding in a serious crime case; A person's freedom is at stake; a decade of his life; It is not enough to learn lessons for the future. The fact that nothing was done 'maliciously', as defined by the District Court, does not constitute a satisfactory response. Therefore, as I will elaborate, the doctrine of the defense of justice has the power to even lead to the dismissal of the charge against the appellant."
Justice Grosskopf, who remained in the minority, did not disagree with the severity of the failure to transfer the material and the protection from justice that arose for the appellant as a result. However, he was of the opinion that the consequences of the defect in the conduct of the proceeding should be expressed in a very significant intervention in the sentence imposed on the appellant, but not in the annulment of his conviction, in such a way that his sentence would be shortened by half, for reasons of protection from justice, and would stand at 5 years imprisonment instead of 10 years.
- In the present case, in light of the plea bargain, the possibility of quashing the indictment against Fischer is not on the agenda, nor is there a more moderate remedy that a defense from justice claim might bring, such as the disqualification of Malka's testimony, in respect of which the most numerous and serious flaws were found in this trial (compare Criminal Appeal 4988/08 Farhi v. State of IsraelIsrSC 65(1) 626, 653-654 (2011); Criminal Appeal Authority 5334/23 Abergal v. State of Israel, paragraph 48 (July 14, 2024); Section 56A to the Evidence Ordinance [New Version], 5731-1971). However, other than that, the other differences between the case before us and the case Elmalah point to the extreme severity of the flaws that occurred in our case in comparison to the defect that occurred in the Elmalah With regard to the non-transfer of investigative material, and only because of which the majority justices were of the opinion that it was appropriate to acquit the appellant because of the doubt, let alone to greatly reduce his sentence (a result to which the minority judge also agreed).
In Parashat Elmalah, the answer to the lab test"It was not disclosed to the appellant and his counsel, as well as to the State Attorney's Office, due to a police failure" (Justice Stein at paragraph 15), while the police received the answer a considerable time earlier (ibid., paragraph 3). Still, it was a test conducted in a laboratory in Italy, the findings of which were later transferred to the police, and not in an investigative operation carried out by the police in the first place. The state also explained that the late transfer of the material from the police to the prosecution occurred "As a result of a failure in communication between the various authorities to which the results were reached"And"Not for the purpose of hiding the results of the test, but rather a 'glitch' that was dealt with by refining the procedures to prevent the recurrence of similar cases" (Justice Elron at paragraph 42). On the other hand, the information that the Department for the Investigation of Police withheld here from the defense and the court relates to the actions carried out by the Department for the Investigation of Police By herself, and the documents found in her possession Starting from day one (For example: a promise made to Machlouf on July 20, 2014 that earned him the status of a state witness, at least de facto; a written agreement that Saada made with Malka dated May 4, 2015 and took away their evidentiary power from his statements; a conversation the investigators had with the state witness outside the interrogation room, following which she changed her version regarding the transfer of funds from Fischer to Malka; economic assault orders issued by the Department for the Investigation of Police against Malka on May 7, 2015 without deliberately executing them; disappeared intelligence information provided by Malka on May 10, 2015; contacts with Sasson Chai before he changed his version and gave an incriminating version following which he became a state witness; a benefit promised to the Queen orally prior to the signing of the State's Witness Agreement on June 4, 2015 and as part of the consideration given by virtue of the agreement but not disclosed; and on and on).