on the inadvertent failure to transfer the findings of the defense laboratory test in the ElmalahJudge Elron said that:
"The fact that this is an unintentional omission does not dull the intensity of the infringement of the appellant's rights. Of course, if it had been a premeditated concealment, the situation would have been even more dismal and disturbing; Nevertheless, the current state of affairs, which indicates gross negligence, is serious enough" (ibid., para. 166; and Justice Stein in paragraph 14).
Unfortunately, The nature, scope and methodology of the concealments carried out by the Department for the Investigation of Police in our case make it very difficult to benefit from this lenient assumption of lack of awareness or intention that clear investigative materials are not being transferred to the defense despite repeated requests; and that incorrect answers are given to the court in response to questions that are repeatedly directed to the Department for the Investigation of Police in the midst of the proceeding.
- In addition, the laboratory examination in the Elmalah It did not necessarily point to the appellant's innocence, but only could have assisted him in his defense (Justice Elron at paragraph 167; Justice Stein at paragraph 12). Judge Grosskopf clarified this by stating that "It is not possible to determine that there is a reasonable possibility that the timely disclosure of the negative results of the additional test for the detection of a rape drug would have affected the verdict and led to the acquittal of the appellant"; However, he was of the opinion that since this was evidence that could have helped the appellant's defense to a certain extent, in that if it had been passed on to him at an earlier stage of the proceeding, it would have had some impact on the manner in which his defense was conducted, "Thus, the proper remedy – as is also evident from American and Canadian law, to which my colleagues refer in their opinion – is an intervention in favor of the appellant at the level of punishment, by way of a significant mitigation of the sentence" (paragraph 15). All the more so in the parasha before us, in which we are dealing with many data and materials – and not with a single perspective as in Parashat Elmalah; and the information that was concealed by the Department for the Investigation of Police affected the content of the interim decisions that were made (including the defense's requests for investigative materials and the dismissal of charges), as well as the prolongation of the proceeding and its diversion to areas where it would not have been necessary to deal with them at all if the investigation had been conducted in a proper manner, and at least if it had been in the investigation file to reflect the deficiencies that occurred during it.
- Moreover, in Parashat Elmalah The defense was allowed to re-examine the complainants in another cross-examination after the answers to the laboratory test were discovered, and nevertheless it was ruled that this did not cure the defect (Justice Elron at paragraphs 46, 141, 167). This is not the case in our case, where the two more serious concealments that took place – Saada's memorandum of May 10, 2015 (N191/2) and the email message sent that day by the Director of the Department for the Investigation of Police (N198/2) – were discovered eight years after the beginning of the trial, four times greater than the two-year delay in the discovery of the material in the affair Elmalah. Not only that, even when the materials were already discovered, they were not found in their natural place, that is, in the investigation file, but in a pile of blank forms in the offices of the Department for the Investigation of Police (the memorandum) and in Saada's home (the email). And even so: these two critical documents were discovered during Saada's cross-examination, after Malka had already left the witness stand for the second time and completed his supplementary cross-examination, so that even the "allotment of improvements" that was made possible for the defense in the affair Elmalah, in the case before me, refrained from the defense, given that the two aforementioned documents relate to intelligence information provided by Malka in the framework of a secret agreement with the investigative authority.
- Judge Elron stood in the Elmalah On the importance of the 'right to defend one', which is one of the cornerstones of the defendant's right to a fair trial, he referred to the decision of the Supreme Court in one of the interim proceedings that took place in this case (Miscellaneous Criminal Applications 5881/15 State of Israel v. Fischer (December 15, 2015)). He explained that the right to defend is expressed, inter alia, in the right granted to the defendant upon the filing of the indictment to receive all the material collected during the investigation, and "All this, even before the defendant is required to provide a detailed response to the indictment. This aspect reflects the approach of criminal law, according to which the defendant has the right to build his line of defense in accordance with the evidence in the file" (paragraph 126). He also noted there – relying on the Supreme Court's ruling in Biton's case in the Ma'ase Nissim case (Criminal Appeal 6426/21 State of Israel v. Biton (28.1.2024)) - that this structure of the criminal proceeding "which grants the defendant extensive procedural rights as aforesaid, is not done only in the name of protecting his rights, but rather on the assumption that a criminal proceeding that is clarified while violating the defendant's right to defend himself impedes the purpose of clarifying the truth – and certainly does not contribute to it... This right is not only of a 'technical' nature, but it has significant implications for the defendant's ability to deal with the power disparity between him and the accuser and to base his defense on the broadest possible evidentiary basis" (paragraphs 126-127). As a result:
"The right to defend is not limited only to the defendant's ability to build a line of defense, the defendant must be given a fair opportunity to present his line of defense to the court, in a way that will allow the court to get an impression of this line of defense in real time, while formulating its opinion on the evidence presented in the trial. After all, if the defendant is able to present the line of defense only after much of the evidence has been heard in the trial and when the court's position regarding his guilt has already been formulated to a large extent, then at this stage the very presentation of the line of defense may have a negligible effect on the defendant's ability to convince the court that he is right.