For further application of section 10(1) of the Evidence Ordinance - see also Criminal Appeal 9641/12 Sa'ad v. State of Israel [published in Nevo] (August 5, 2013).
Delay:
- In a series of rulings, the court recognized the delay as a grounds for "protection from justice." This was when the investigation and prosecution proceedings were conducted while 'dragging their feet', and caused real harm to the defendant's ability to defend himself. In other cases, it was determined that the passage of considerable time contradicts the duty of justice and fairness required by conducting a proper criminal proceeding. In Criminal Appeal 1611/16, 4238/16 State of Israel v. Vardi et al. [published in Nevo] (October 31, 2018), it was held that in exceptional cases, it is possible to recognize the application of the principle of protection from justice, due to the passage of significant time in the indictment. This is done when three cumulative conditions are met: the time that has elapsed from the time the offense is committed until the indictment is filed; The harm to the defendant's defense due to the delay is real and tangible; There is no satisfactory reason for the Authority's conduct (for example, due to the complexity of the proceeding, the conduct of the investigation, or the burden of the investigation). It was further held that where the court finds that the delay in the case of a defendant is indeed onerous, it must examine whether the defendant has a claim of protection from justice, in accordance with the three-stage test for the application of the doctrine [see, for example, Criminal Appeal 4855/02 State of Israel v. Borowitz, IsrSC 59 (6) 776].
- Having said all this, we will turn to examine the evidence brought by the parties. I will preface by noting that evidence was brought on behalf of the parties describing "opposing worlds". The prosecution presented evidence and testimonies describing the common home of the defendant and the complainant as a home full of terror, humiliation, threats and violence. The defense presented evidence and testimonies describing the house as a functioning and normative home. Naturally, the accuser pointed to similar details in the testimonies as points that indicate the credibility of the witnesses on her behalf. Details that are not similar were described as not cracking the "kernel of truth" in the prosecution's testimonies. On the other hand, the defense pointed to those similar details – as indicating "coordination of testimonies" and "contamination of the investigation." Details that are not similar were emphasized, as indicative of falsities and contradictions that undermine the ground beneath the prosecution's version.
As in many other cases, the prosecution's testimonies on the one hand, and the defense testimonies on the other, were colored "black or white". And as in countless other cases, the picture seems to be more complex, and includes many intermediate shades.