Testimony of a Victim of Violence - Veres Gasta:
- A basic rule in the laws of evidence is that hearsay testimony is not admissible as evidence of the truth of the content of what was heard. However, the Evidence Ordinance provides exceptions to this rule. Thus, for example, section 9 of the Ordinance allows for the admission of testimony based on hearsay, which concerns a statement made during or close to the commission of the offense. The rationale for this exception lies in an ancient doctrine in common law, known by its Latin name res justa. Similarly, section 10 of the Evidence Ordinance also establishes a number of exceptions to the rule that disqualifies hearsay testimony:
"Testimony about a statement made by a person who allegedly committed an act of violence, and the statement relates to that act or its circumstances, will be admissible even if the person who said it is not present as a witness and should not be brought to trial because he is deceased or exhausted or sick or absent from the country, provided that one of the following statements is fulfilled in that statement:
(1) It was said at the time of the act of violence, or shortly afterwards, or after he had had the first opportunity to complain about it;
(2) It relates to the act of violence in the order of events to the extent that it is a link in the chain of circumstances directly related to the commission of the offense;
(3) It was said while he was dying, or believed to be dying, in the wake of the act of violence."
- At the basis of the alternatives in section 10 of the Evidence Ordinance is a similar rationale, according to which the circumstances of the statements were made – establish a presumption as to their veracity [cf. Criminal Appeal 3452/11 Shaltiel v. State of Israel [published in Nevo] (July 8, 2013). The case law determined that the element of "proximity" will be examined according to the circumstances of the case [see, for example, Criminal Appeal 3263/13 Ben Shitrit v. State of Israel [published in Nevo] (March 19, 2017)].
- Thus, for example, in Criminal Appeal 436/80 Amousi et al. v. State of Israel, IsrSC 35 (2) 566, the court examined the question of the admissibility of the testimony of a doctor to whom the complainant had given a description of rape, during her examination at the hospital. The conversation with the doctor took place a few hours after the complainant's conversation with the police. It was determined that the doctor's testimony was inadmissible, and did not meet the conditions of section 10 of the Evidence Ordinance:
"It is highly doubtful whether the said section 10, which deals with the complaint of a victim of violence, can, indeed, assist us in the circumstances of this case, since the patient's words were not uttered at the time of the act of violence, nor is it the first opportunity she had to complain about the act, which was carried out in her, because the conversation, which we are discussing here, was already a third opportunity and not the first after the incident. The patient met the policemen and spoke to them, and they described her frightened and frightened appearance, her bursts of tears, and her wrinkled and dirty dress in the grass and thorns, but the patient told them that she had not been raped. Afterwards, she met her sister Kochava Shmuel in Kfar Shaul, but she did not give her any details and only cried. Only afterwards was the physician Dr. Schwartzman called to her, and she heard the patient's words; The court sought to rely on the testimony of this doctor, in accordance with section 10(1) of the Evidence Ordinance [New Version]. As explained, this testimony cannot fall within the scope of the provisions of section 10(1) stated in the circumstances of this case... Therefore, I am of the opinion that the arguments of the learned defense counsel should be accepted, who argued that the trial court could not regard the doctor's theory as admissible evidence in the circumstances of this case."