Criminal Case (Jerusalem) 28759-05-15 State of Israel v. Eran Malka - part 99

In the hearing on November 29, 2018, counsel for the accuser emphasized that the decision on the defense of justice claim as a preliminary argument (as distinct from a decision on this claim in the framework of the judgment) should be made only on the basis of the material that existed at the time the indictment was filed, without taking into account the additional facts that arose during Malka's testimony; and this is all the more so since the accuser's position is, as stated, that the decision to dismiss the fourteenth indictment against Malka was based, inter alia, on evidentiary considerations.  At the same time, counsel for the accuser did not present any additional distinctions that arise from the indictment and from the interrogation material between Fisher and Malka regarding this charge, beyond the distinctions she made in the hearings of July 14, 2016 and March 22, 2018, as detailed above.  Counsel for the accuser clarified that the delay in filing the motion in March 2018, nearly three years since the amended indictment was filed in June 2015, which includes the deletion of the indictment against Malka, made it difficult to reconstruct the explanations for the move, and caused that the inquiry conducted by the Department for the Investigation of Police in order to prepare the response to the request was not necessarily exhaustive, since "then it was more difficult to get the exact picture", and for this reason, the response stated that the explanation given in it for the decision of the director of the department,  is the result of an "attempt to trace" the reasons for the decision (pp. 6758-6761).  As to the version raised by Malka in his cross-examination that Adv. Liora Nahon, one of the State Attorney's Office signatories to the original and amended indictment, was the one who initiated the dismissal of the indictment against him, counsel for the accuser noted that prior to the filing of the response to the motion in March 2018 (and in any case prior to Malka's presentation of the said version) she had spoken with Adv. Nahon and heard from her (possibly based on an inquiry that Adv. Nahon conducted with Malka's lawyers) that the initiative to drop the indictment against Malka had come on the part of his lawyers, as indeed written in the response (ibid.).