As for refraining from interrogating a litigant or a defendant:
Such avoidance will affect the weight that should be attributed to his testimony, in addition to giving real weight to the defendant's version and even accepting his version in appropriate cases" (Dr. Yaniv Vaki, The Law of Evidence, Volume 1, forthcoming in 2020).
In Criminal Appeal 7915/15 Gadban v. State of Israel [published in Nevo] (July 9, 2017), the Supreme Court discussed the evidentiary consequences of refraining from interrogating a defendant on a substantive point, and the justices' opinions were divided. According to the approach of the Honorable Justice Barak-Erez, which was joined by the Honorable Justice Zilbertal, discretion should be left to the court as to the weight that should be attributed to the results of refraining from cross-examination of a defendant, while in the opinion of the Honorable Justice Hendel, refraining from cross-examination of a defendant should lead, as a rule, to accepting his version on the same issue. In any event, and even if there is a dispute, it is sufficient that all the justices were of the opinion that refraining from cross-examination, in certain circumstances, may lead to the acceptance of the defendant's version of the issue on which he was not interrogated.
In our case, and in view of the fact that this is a central issue according to the indictment, I saw fit to give evidentiary weight to that abstention, and to view the defendant's version as constituting an additional layer in the final conclusion. Needless to say, this version is consistent with the rest of the evidence heard in the aforementioned context.
- The set of data detailed above leads to the conclusion that the prosecution was unable to prove any involvement of the defendant in promoting the meeting with Noble Energy, real-time knowledge of the manner in which the meeting was organized, and knowledge of its contents. In fact, and beyond proving that the defendant was informed of the very existence of the meeting – a fact that does not complicate – nothing has been proven in the aforementioned factual context.
The meeting between Shemen and senior officials at Noble Energy - Summary
- The dispute over this component focused on the question of whether Ben-Eliezer, through Azoulay, arranged for a meeting between representatives of Shemen and Noble Energy officials, in the interest of the defendant's economic interests.
An examination of the concrete evidence presented in this context leads to the conclusion that the prosecution failed to prove the factual scenario alleged by it in section 17 of the indictment, with regard to Ben-Eliezer's intention and actions. On the basis of the positive evidence presented, it is possible to reach the conclusion, with high probability, that the organization of the meeting was based on the Exclusively Ben-Zaken and Azoulay, who operated within the framework of the independent axis on which I was standing, and without any involvement of Ben-Eliezer.