Thus, despite the accuser's announcement of March 21, 2018 of her intention to elaborate on the explanation that in the indictment "the facts attributed to Eran Malka are different from those attributed to defendants 2-3", in practice the only two facts in the indictment to which the accuser referred in the hearing that took place the next day, and in respect of which there may be a substantive difference between Fischer and Malka – as distinct from the difference between David and Malka – are Fischer's presence (the first fact) at the meeting that took place at his home (a second fact) in which, according to David, she allegedly obstructed the proceedings of the trial. The additional distinction made by the accuser in that hearing that when David was Fischer's counsel at the time, she committed the offense of obstruction as his "extension", is incapable of establishing a relevant distinction between Fischer and Malka, even though David served as Fischer's counsel and not Malka's, since "attributing an absolute offense to another person, by virtue of the principle of mission or delegation, must be based on an explicit provision of the legislature. as opposed to mere interpretation" (H.M. 95/80 Sternschus v. State of Israel, IsrSC 35(1) 661, 665 (emphasis in original)); and such a provision is not found in the law regarding the offense of obstruction of justice that requires criminal thought and is not of a strict liability type (see also the rule that denies vicarious liability in criminal law and makes it conditional on a special provision in the law: S.Z. Feller, Foundations of Penal Law (Vol. 1 – 1984) 103, 693-688; Y. Kedmi, On Criminal Law (Part 1, New Edition - 2012) 415-421).
- Document: In the aforementioned hearing of March 22, 2018, counsel for the accuser referred to her response in the hearing of July 14, 2016, to the preliminary arguments raised by Fischer. In response to Fischer's argument that the charge in the night meeting affair does not reveal an offense, the accuser's counsel noted in the hearing on July 14, 2016, that "Defendant 3 is a branch of Defendant 2, she represents him at that time... When the sender is present with the sender and the sender commits a criminal offense and the sender does not prevent him, then he commits the offense together. Defendant 2, in the circumstances described in the indictment only, should have had reservations and disavows himself in a positive manner in order not to sponsor the incident" (p. 126; See also p. 131). Insofar as the intention is that the relationship between Fischer and David was in itself a source of imposing a duty on Fischer (the client) to intervene actively in order to prevent the disruption of the proceedings of the trial carried out before his eyes by his counsel (as the accusing ISA further clarified at p. 127: "When a suspect is in a situation where his lawyer is disrupting an investigation and coordinating versions, it should be prevented"), this approach is erroneous. As stated, the emissary cannot serve as a basis for attributing the offense of obstruction of justice to the sender for the actions of the emissary. At the same time, the presence of the sender at the place where the agent commits the offense is an independent fact that is not derived from the mission and does not impose liability for the mission itself, but at most, in certain situations it may impose liability for the ability to control the presence derives from the presence.
On such a case, it was ruled that one of the exceptions to the rule that excludes vicarious liability in criminal cases is when "a person is present at the very place where the offense was committed, and he had the power to prevent it from being committed, since the instrument in which it was committed... Either the perpetrator or both of them were under his supervision at the time, and yet he did not intervene" (Criminal Appeal 325/64 Attorney General v. Yarkoni, IsrSC 18(4) 20, 57 (1964); similarly the Sternschus case, supra, at p. 666). However, even in such a situation, the responsibility of the person present at the scene of the offense does not stem from the sender-sender relationship, but rather is "an extension of the rule... that presence at the scene of the offense, which is not accidental, is proof, albeit only prima facie proof, of aiding and abetting the offense" (Parashat Yarkoni, ibid.; For a focus on the question of presence, see also A. Lederman, "Vicarious Liability in Guilty Offenses," Iyunei Mishpat 10 (1984) 61, 92). Hence, even if we assume – for the sake of discussion only – that it is conceivable that a scenario in which Fischer committed an offense by not interfering in David's disruptive activities, the basis for such liability requires Fischer's ability to supervise and control David's statements in a manner that enables him to interrupt them, and it is not enough that David served as his attorney in the interrogation of claims by virtue of various laws that were discussed at the meeting. As explained in Criminal Appeal 115/77 Lev v. State of Israel, IsrSC 32(2) 505, 518 (1978):