Criminal Case (Haifa) 19071-09-18 State of Israel v. Anonymous - part 16

Of course, in addition, we must be careful of the duplication between my determination with respect to section 4.4 of the indictment, according to which the defendant slapped G. on a number of occasions, and what is alleged in section 4.5 of the indictment, according to which it is also alleged that the defendant slapped G.

259. As for the threat described in paragraph 4.5 of the indictment, none of the witnesses before me described such a threat.
260. Therefore, I determine that the accuser has not been able to prove, beyond a reasonable doubt, the occurrence of the events described in paragraph 4.5 of the indictment.
261. Section 4.6 of the indictment – On August 30, 2015, C and D went for a walk with V. got lost, and when G. and D. returned home, the defendant shouted at them and slapped them.  G. closed himself in the bathroom and only got out of it when the complainant returned home.

• In her testimony before me, the complainant stated that she had arrived at her home, and had heard from the defendant that G. had left the house and lost V. on the way. A few minutes later, she found G. in the bathroom, crying - and left the house with G. and V.  She asked G. to tell her what had happened, and G. told her that the defendant had kicked him and beat him.  The complainant herself did not witness the incident of violence and heard about it from G.  It should be noted that in her statements [P/2 and N/3], the complainant repeated the story of a similar incident, without significant contradictions.  There are differences [for example, on the question of where exactly G. told the complainant that the defendant had hit him – while they were at home or outside?; what was the exact manner of the assault – pushing? slapping? kicking? a combination of them?].  However, in my opinion, the core of the story is consistent and coherent.
• , as may be recalled, did not testify in court, and in his interrogation before the children's investigator he did not give any description of the said incident (or other events).
• told the children's investigator that the defendant had hit and shouted at her and G., because they had lost V. during a bicycle trip. The defendant slapped them on the cheek, and told them to sit on the number.  When the complainant returned home, they told her what had happened, and only then did the defendant "release" them.  The complainant then took V. from kindergarten, and went with him to his grandmother (the complainant's mother).  The children's investigator was under the impression that D. had experienced the incident.
• told the children's investigator that G. had lost him, and then the defendant shouted at G. and knocked him off the bicycle and beat him. The children's investigator had difficulty assessing the reliability of the aforementioned incident, since the material details provided were incomplete.

262. I noted above that the complainant's testimony is reliable to me. On the face of it, it appears that the incident that she described in her testimony [i.e., her return home and the defendant's statement that G. lost child F. during a trip; G.'s seclusion in a bathroom; G.'s story that the defendant beat him] did indeed take place in the manner described.  The complainant's description is also supported in part by the testimony of child F. (with all the difficulty inherent in his testimony, taking into account the impression of the children's investigator of the reliability of what he said) and in D.'s testimony (with all the difficulty inherent in her testimony, taking into account that the complainant did not mention D.'s involvement in the incident at all).
263. However, as noted above, the complainant herself was not present at the event. She gives the statements as she heard them from G., who did not testify at all, and during his interrogations before the children's investigator did not make any reference to the said incident.  The words that G. gave to the complainant are admissible as evidence of the truth of their content, since they were the statement of a victim of an offense, shortly after the commission of the offense (and in fact, even at the first opportunity given to G. to complain about it).  Reinforcement for G.'s version before the complainant lies in G.'s mental state [crying, fear of returning home if the defendant is at home], as well as D.'s testimony before the children's investigator.
264. The situation is different with regard to what is attributed to the defendant in this section, according to which he also beat the girl D. The evidence in her case amounts to her own testimony, without any evidentiary support.  The complainant's testimony does not refer to D.'s presence at the scene, or to the defendant's violence against D. in that incident.  The same applies to the other witnesses and those involved.
265. Therefore, I hold that the accuser has proved, to the extent required in a criminal trial, that the incident described in section 4.6 of the indictment took place, insofar as it relates to the violence that the defendant committed against child C. In the absence of sufficient evidentiary support, it remains doubtful whether the defendant used violence in the same incident against the girl D. as well.
266. Sections 4.7 and 4.8 of the indictment – throwing a phone at Girl A, a mobile phone at A.'s head, during 2014 (Section 4.7 of the indictment) and a wireless phone during 2015 (Section 4.8 of the indictment).

• said in her testimony that about six months before they left the house, she spoke to a friend on the phone. She does not remember what she was arguing with the defendant about, but the defendant took the phone from her hand and threw it at her head in the middle of the conversation.  It is a cordless phone of the house.  The incident may have occurred in 2014.  Although the indictment describes two incidents, it is one incident.
• The defendant denied that such an incident had occurred.

267. What emerges from the compilation clearly indicates that this was a mistake on the part of the drafter of the indictment. This is not a case, even according to A., of two different incidents, but of one.  It is not clear why the accuser's counsel insisted, even during her oral summaries, that the defendant should be convicted in two different incidents, especially in view of the fact that she was unable to point to any evidence to support this claim.
268. In any event, A.'s testimony is reliable to me. She was meticulous and did not take an extreme approach with regard to the events attributed to the defendant.  She was not even present at the family treatments, and therefore the claim of "contamination of the interrogation" (which I rejected on its merits) does not relate at all to A.'s testimony and does not have the power to crack A's credibility.
269. I therefore determine that the incident described in section 4.7 of the indictment was not proven at all. It was proven to me, and to the degree of certainty required in a criminal trial, that the defendant committed the act attributed to him in section 4.8 of the indictment.
270. Section 4.9 of the indictment – During 2014, the defendant kicked D. in the stomach and threw a chair at her:

• told the children's investigator that about a year before her interrogation, the defendant kicked her in the stomach. It was at home, while her sister A. was on a trip.  All the other members of the household were present at the house at the same time, but no one saw it.  In addition, the defendant pushed a white chair on her, which broke.  The defendant did all this because he was angry with her because she had knocked down the sign (of the air conditioner).  She told the complainant about it that day.  The children's investigator was impressed by the reliability of the description of the aforementioned incident.
• The complainant stated in her testimony that D. told her that the defendant had beaten her. She herself did not see it.  She also did not know about the defendant's violence against children D. and F.  It was only after the family treatments that she found out about it.  In this context, it should be noted that the complainant stated in her interrogation with the police [P/4] that D. told her about an incident in which the defendant beat her, because she knocked down a sign of the air conditioner.  She heard about it from D. only after they left the house.
• stated in her testimony that she did not recall seeing physical violence by the defendant towards D. Verbal violence – there was.  B. made similar statements during her interrogation with the police (P/5).
• stated in her testimony before me that the situation towards D. was usually calm, but the defendant also hit her if she said something that he did not see. She remembers one incident in which D. did not say hello to the defendant, and in response the defendant kicked D.  In her cross-examination, she was also asked to relate to an incident about which she recounted in her statement [P/8], according to which the defendant kicked D. and slapped her, at some point in the six months before they left the house.  The event took place in the living room.  A. stated in her testimony that she remembered the incident "for sure," and that she was "almost" in the tenth grade.  She also noted that she had difficulty remembering a specific incident of violence on the part of the defendant towards D., since there were many of them.
• The defendant denied any incident of violence against the girl D.

271. What emerges from the compilation: Even if I accept D.'s testimony as reliable (inter alia, in view of the children's investigator's impression of the reliability of her version) – there is still a need for evidentiary support of the type of assistance, according to section 11 of the Law for the Amendment of the Laws of Evidence (Protection of Children).  In my opinion, none of the evidence brought by the accuser can be regarded as aiding and abetting in this context.

• The complainant's testimony cannot be used as assistance, since according to the complainant's own testimony she heard about the incident from D. weeks and months after it occurred. It is therefore clear that this is also not the testimony of a victim of an offense, which was given shortly after the act or at the first opportunity to complain about the incident.  It is doubtful whether the complainant's testimony is admissible.  Moreover, the complainant's testimony is inconsistent with D.'s version (who, as may be recalled, told the children's investigator that she had told the complainant about the incident of violence that same day).
• 's testimony cannot be used as aid, since according to her version, she did not see any incidents of physical violence on the part of the defendant towards D.
• 's testimony cannot be used as aid, since on the face of it, it appears that it describes another alleged incident of violence on the part of the defendant against D. Nowhere in A.'s testimony does she say that this was a violent incident that stemmed from the knockdown of an air conditioner sign (except for other reasons); Nowhere in A.'s testimony does she describe the use of a chair (or the breaking of a chair as a result).  The main points – D. states in her testimony before the children's investigator that at the alleged incident – all the members of the household were present, except for her sister A., who was on the trip at the time.

272. Therefore, the testimony of child D. regarding the incident described in section 4.9 was left alone, without evidentiary support of the type of assistance. The necessary conclusion is that the accuser did not prove the occurrence of the incident mentioned in this section, with the degree of certainty required in a criminal trial.

Interim Summary:

273. For the convenience of the reader, I will therefore summarize the "bottom line" in relation to each of the events described in the indictment, in their order:

• Section 3.1: The accuser proved that during 2015 the defendant told the complainant the sentence "I will strangle you, it will take me five seconds to kill you"; There is no doubt about the sentence "I'll throw a bottle of wine at you and kill you, it will take me five minutes."
• Section 3.2: The accuser proved that on the night between 1-2 September 2015, the defendant entered the children's room where the complainant was sleeping, placed an object in front of her and strangled her. The complainant woke up because of this, and a short time later the defendant left the room.
• Section 3.3: The accuser proved that on October 30, 2015, late at night, the defendant entered the room where the complainant was sleeping, shouted at her and told her, "You touched the documents, what do you think, I can kill you."
• Section 3.4: The accuser proved that during 2014, at an unknown date, the defendant pushed a laundry rack hard at the complainant, which damaged her body.
• Section 3.5: The accuser proved that during 2013, at an unknown date, the defendant threw a plate containing fish at the complainant. The plate didn't hit the complainant, it soiled her and shattered.  The accuser further proved that on another occasion the defendant threw some cutlery at the complainant, which hit child F, who was next to the complainant at the time.
• Section 3.6: Doubt remains as to the occurrence of the events described in this section.
• Section 4.1: The accuser proved that on many occasions and at unknown times, the defendant called his children derogatory names and even said various statements to them relating to the injury to their bodies, such as: "I will blow your face off"; "I'll give you a slap that no one gave you"; "I'll push you against the wall, it'll be your end."
• Section 4.2: The accuser proved that during 2014, when girl B. suffered from toothache, the defendant told her that if she continued to speak, he would hit her, and her whole mouth would hurt [it should be clarified that the two statements detailed in section 4.2, as well as the statement mentioned at the end of section 4.1, all relate to the same incident].
• Section 4.3: The accuser proved that during the years 2014-2015, at an unknown exact date, during Friday evening, the defendant assaulted B. and hit her in the face with the palm of his hand, because she leaned her chin on a drink bottle.
• Section 4.4: The accuser proved that during the relevant period, the defendant used to slap G., as a matter of routine. The accuser was unable to prove that the defendant used to take G. into the room and the shower and beat him there, while shouting at him to open his eyes and forbidding him to cry.
• Section 4.5: The accuser was unable to prove beyond a reasonable doubt that during the relevant period, when complaints were received about G.'s performance at school, the defendant used to beat G. and punish him. It was not proven that on one occasion the defendant threatened G. that he would take him to the forest and leave him there.
• Section 4.6 of the indictment: The accuser proved that on August 30, 2015, children C and F went out for a bicycle ride. got lost, and when G. returned home, the defendant shouted at him and hit him.  As a result, G. closed himself in the shower room, and left it only when the complainant returned home.  Doubt remains as to the accuser's claim that in the aforementioned incident the defendant also attacked the girl D.
• Section 4.7: It was not proven that the defendant assaulted A. during 2014, when he threw a mobile phone at her.
• Section 4.8: The accuser proved that during 2015, at an unknown exact date, the defendant attacked A. by throwing a home (wireless) telephone at her, which hit her.
• Section 4.9: It has not been proven beyond a reasonable doubt that during 2014 the defendant attacked D. by kicking her in the stomach, and that he threw a chair at her.

274. In view of the aforementioned factual determinations, the question of the defendant's conviction of the offenses attributed to him in the indictment will be examined below.

The legal aspect: