22' Judge Hellman: It's a sentence of condition, You won't do anything, something will happen. What will happen?
The Witness, Mr. Vanunu: But that's talk,
22' Judge Hellman: What does it take for someone who hears this to understand that it will happen??
The Witness, Mr. Vanunu: I don't know, Baggage"
(pp' 347 For the record, Lines 21-7).
- And so on., Later on Vanunu's testimony, It is evident that he played the character of a criminal, and this should not be blamed. At the same time, Similar, Because in several stages, During dubbing, He crossed the permissible limit. The witness Vanunu testified at length before us, When his testimony taught, Because he did not see his words and his appeals to the defendant as a threat, He did not notice that he was pushing the defendant towards a narrow corner that could not be broken, All this in order to achieve his goal and to obtain answers and explanations from a defendant who asked at the beginning of the dubbing process to assert his innocence by stating that "I didn't murder him... I don't know... I saw an article on WeNet" - (A/20 Min 46:00 ). In light of the defendant's words, one of the informants shouted, " What Are You Fucking Your Mind". When immediately afterwards, The informants cast aspersions on the defendant, They suspect him of collaborating with the police, This forced the defendant to take out his pants pockets and lift his shirt in order to allow the informants to see, Because he doesn't record them (See - The course of the conversation/20 , Min 46:50).
- The same is true of the testimony of the second informant, Lasri, This informant also did not really understand the impropriety of his actions and the predatory interrogation method he used.
- As you may recall, There is no visual documentation regarding the interrogation exercise that was carried out. All we have is the audio recording of the second dub. Naturally,, Listening to the recording does not allow us to get a complete and exhaustive picture of what is happening inside the detention cell. Even after hearing the testimony of the informants before us, and the impression of them, No response and/Or an explanation that can dispel the heavy fog that surrounded the act of dubbing inside the cell. Content of the conversation between the informants and the defendant, Tone of voice, The shouting, The sequence of speech, The nature and frequency of the questions addressed to the defendant, The fact that the informant Lasri at some point left the cell (Without documentation even in a memorandum detailing his departure, Its Essence and Purpose) and returned to him with a bunch of questions regarding the number of stabbings; All of the following evidence"They also taught about the use of pressure measures that included a considerable degree of threat to the defendant, They are not answered/An appropriate explanation that satisfies the mind, During the testimony of the informants in court. Sure., In my view, these threats go beyond the scope of a legitimate ploy that the investigative authorities were entitled to employ, and they spilled over into an improper and illegitimate area with regard to investigative methods. In these circumstances, Definitely plausible, that the defendant's incriminating confession did not stem from his own free will, So the birth of this confession was done under pressure and threats. Hence, Berry, Because, A confession that was born prematurely, Forcedly and even before she succeeded in forming a membrane that would allow her to continue to live independently (If only while relying on something else), It should not be adopted into our bosom, and it should not be established, For in its light a thing will kiss.
- As to the tone of the defendant's speech; According to the accuser's position, It can be seen that his tone of voice changed when he wanted to tell about details and things related to the murder (When, on the other hand,, Regarding the rest of the parts of the story that he told to the informants, The defendant adopted a normal tone of speech for himself), This indicates the truth of his words and that he did not feel threatened by the informants. Severny, Because there is no room to adopt this approach of the accuser. One of the reasons for this, He; What do I have to say in a high tone; What do I have to say in a normal tone?; This is when the technical aids used do not allow for tracing the content of the sentences that were said in a whisper, and when the content of the defendant's confession contradicts a substantial part of the details prepared in relation to the occurrence that underlies the proceeding here. Not only that., The Supreme Court has often insisted that there are a wide range of possible responses to stressful situations. See, for example, the words of 22' Justice Hendel in the Mirez (Name in paragraph 7 To the Judgment):
"...Different people have different ways of dealing with conflict situations. For example, There are those who break down instantly, There are those who react aggressively and there are those who try "Control" In the situation: Try to calm down, Solicit, Explain or gain the aggressor's trust. The last way of dealing does not mean that the threat is not taken seriously. The difference is in the proposed solution to the threat. To illustrate the point, Take a case in which a criminal suddenly threatens a couple with a gun and demands their money. Suppose one of the partners is screaming or crying, The other tries to calm him down and tells the offender that all his demands will be met and that he will remain calm. Can we conclude from the fact that only the first one feels threatened??..."
- The Defendant's Conduct in the Detention Cell, The various links in the chain of the interrogation exercise that is the subject of dubbing, The development of the defendant's version vis-à-vis the interrogation method adopted by the informants, The duration of the interrogation exercise from the moment the defendant entered the cell until the stage at which he confessed (18 Minutes), Lack of visual documentation, Age of the Defendant, Its characteristics vs. the personality and body characteristics of the informants, The time when the interrogation exercise took place, The investigative flaws that accumulated over the course of the busy day of interrogation until the stage when the defendant entered the dubbing booth (When he had not yet met his parents) His initial version inside the cell when he tried to hold on to the claim, Because he has no hand or leg in the murder, And the stage in which he began in"The Collaboration" With the informants, (That came after remarks that included insults, Insult, Shouting and a considerable amount of threat, For evil will befall him., If he is not willing to cooperate with his cellmates who were portrayed by him as serious criminals, Among other things, in light of their conduct vis-à-vis the interrogator); All of these together, Showing a real violation of the right to remain silent and the fairness of the criminal proceeding; Harm that affected the defendant's version and confession.
- Even if we let go for a moment, Because the invalid ancestors who led the defendant to give a confession that was not of his own free will were not used., Surely it can be said, Because the method of investigation, In the event that we are at our doorstep, exceeded the permissible limits and violated the defendant's right to a fair trial and the purity of the criminal proceeding.
- Given the above,, In my opinion, The defendant's confession should be invalidated, Both according to the legislative track and the purpose of protecting the credibility of defendants' confessions and the interrogee's right to autonomy of free will, and according to the jurisprudential track that aims at the defendant's right to a fair criminal trial.
Weight of the saying:
- Inadmissibility of the defendant's confession as I determined above, may apparently make the examination of its weight redundant. Hall, In the circumstances of the case, I also found it appropriate to consider the weight of the defendant's confession.
- In the previous chapters, I discussed the content of the confession and what it has to do with reality.. Yes, I noted the inner weight that should be given to that confession. More often than, It became clear to us, Because the defendant's words, According to the version that underlies his confession, Contradict The objective findings as they occurred on the ground. Moreover,, With regard to certain points, the defendant's version was even unfounded. All of these undermine the weight of the defendant's statements and confession. Admittedly, There were details in his confession that resembled reality. Hall, There were other details, are also substantial and prepared (Surely only the real murderer and the investigators knew about them, Example; The number of stabbings and their exact location) that the defendant's version as part of his confession, Standing in contradiction to them.
- Moreover, I am unable to accept the accuser's argument that, The defendant's confession serves as a confession that includes the motive for the offense, The manner in which the deceased was murdered, The defendant's conduct after the murder and even the process of blurring the traces after the murder. According to the accuser's arguments, She did take her heart to an essential and important detail regarding the number of stabbings (According to the defendant's version on which the accuser seeks to rely) that does not match the findings at the scene. Hall, In her opinion, This does not take away its evidentiary power from the confession. In this context, the accuser referred toCriminal Appeal 2270/10 Gas N' State of Israel [Posted inNevo] (31.5.12) She asked him to teach us, Because: "The fact that Thanksgiving incorporates false facts, It doesn't have, per se and in any situation in order to take away its evidentiary power from the confession".
Needless to say,, For in the same matter to which the accuser referred, Name, The claim was examined and ruled, Because some of the alleged contradictions are not like that, Some of them are not substantial, Some of them stemmed from inaccuracies or stemmed from a lack of understanding, and some of them were false, and that these were details that the appellant added as part of the story he produced (Name, Section 23 To the Judgment). This is not the case in the case of a case that is placed at our doorstep; The contradictions and inaccuracies in the defendant's confession here related to a number of essential links in the chain of events, as well as to essential details located at the core of the events.
- I discussed above the conduct of the second dubbing and the details that were provided in the framework of it. Yes, It has not escaped my notice that some of the statements that were given by the defendant, They were indeed true words, Example: The Defendant's Dispute with Y', The fact that the deceased was on an electric bicycle, The fact that he was masked and the fact that he was stabbed in the back. At the same time, I see fit to mention again, Because other and additional details, Essential and Important Aspects of the Description of the Event, They do not coexist with the defendant's confession, Such as; The Detail of the Time of the Event, Does not correspond to reality; Detail of the number of stabbings, Does not correspond to reality; The defendant's story regarding his actions after the incident, It does not correspond to the situation; His arguments regarding the details of his clothing at the time of the incident, as well as regarding the place of accommodation on the night of the incident and his mother's conduct shortly after the incident, Contradicting the proven facts on several points, Even to the attitude of the accuser herself. The same applies to the claim that concerns the location of the stabbings - In the absence of visual documentation, It is not possible to see the exact location that the defendant pointed to as the location of the stabbings. It turns out that, The defendant was accurate in some of the details and in others he contradicted the findings at the scene. The contradictions and inaccuracies relate to important details located in the central links of the chain of occurrence, So we have no interest in contradictions and/or inaccuracies that are on the margins of the event.
I see fit to mention again, that the defendant was brought into the detention cell where the dubbing took place, After a long and exhausting day of interrogations that, As mentioned, Started dubbing in the middle of the city, He continued with the exhausting interrogation of the defendant by the interrogator Ben Lulu, after which an interrogation proceeded on the way from Afula to Hadera, By Investigators C'Haad and Abzach, and ending with the defendant's income at an hour 21:42 To the informants' cell. Here is also the place to refer to the testimony of the defendant before us in a' 554 For the record, There he explained that the matter of mistaken identification, As revealed in the second dub, Uploaded later to the version of the"Mistake", As it came up in the first dubbing, When the two informants, As part of the first dubbing, Use the word frequently "Mistake" and created in the defendant the seeds of this version.
- It turns out that, Even if we had passed the stages of acceptance, Thus, the power of the defendant's confession will not stand for her to pass the internal test, and as such, It should not be given decisive weight , until no incriminating finding can be based on it. A well-known rule is, Because, Sometimes, The Degree of Tangible Violation of the Fairness of the Criminal Proceeding, Can hurt the weight of the confession, If not in its admissibility. Our Seeing Eyes, Taking into account the flaws that occurred in the investigation process, Similar, Because there is no room to give this shaky confession any weight on which an evidentiary tower can be built that is sufficient for the purpose of convicting the defendant.
Examination of the existence of circumstantial evidence to prove guilt:
- After the invalidation of the defendant's confessions, as they were presented to the informants, it remains to examine whether there is circumstantial evidence that can prove guilt to the extent necessary in a criminal trial. It should be emphasized that the accuser did not seek to substantiate the charge on the basis of circumstantial evidence. The accuser put all her faith in the confession that the defendant gave to the informants, to which she found additional evidence in additional evidence, according to her approach.
- As I have begun and noted, a number of pieces of evidence were placed on the court's desk that could indicate, to one degree or another, a suspicion of a certain involvement on the part of the defendant in the murder; These are: the behavior of the defendant's mother on the night of the murder and her search for her son; the figure seen on one of the security cameras chasing the deceased, who later turned out to be the defendant; Communication studies and surveillance of the defendant's phone, including the defendant's text messages and calls on the night of the murder; The simulated reconstruction and the defendant's behavior at that moment, the defendant's version and his statements to his interrogators, and other evidence.
- It is evident that there is no direct evidence in the hands of the accuser to prove guilt, other than the confession to the informants. Hence, and since I have found those confessions to be inadmissible, it is necessary to examine whether the conviction can be based on circumstantial evidence that was presented. As is well known, a conviction can be based on circumstantial evidence where only one logical conclusion can be drawn from it that establishes a basis for a conviction. On the other hand, to the extent that it is possible to provide the body of circumstantial evidence with a reasonable alternative explanation consistent with the defendant's innocence, then a conviction should not be based on such evidence (Criminal Appeal 4656/03 Miropolsky v. State of Israel [Published in Nevo] (01.12.14); Criminal Appeal 6932/17 State of Israel v. Ilan Yosef [Published in Nevo] (11.10.18)).
As a rule, in a criminal case that relies on circumstantial evidence, the prosecution must prove that the evidentiary mosaic leads to one and only reasonable result of the defendant's conviction.
- Apart from the evidence that led the accuser to suspect the defendant here; After the latter's arrest, a number of investigative actions were taken, whether it was search warrants, the arrest of other persons involved, dubbing and interrogation of the defendant and others.
- First of all, I will note that the police officers who searched the defendant's home found a pottery in their hands. The police were unable to trace the knife, which was allegedly used to commit the murder and was returned to a drawer in the kitchen of the defendant's parents' home (according to the defendant's version). As stated above, upon the defendant's arrest, his home was searched and many knives were seized. However, laboratory tests that were carried out did not indicate positive findings that could indicate the murder weapon.
- Below, I will examine a variety of different arguments and/or avenues, with the examination done separately in relation to each and every claim:
- The defendant's place of residence after the murder: The defendant initially claimed in his statements that he had been at his parents' house all night and that he had not left the house. Even at the first stage of the investigation process, it became clear to the accuser that this argument had nothing to rely on; This was against the background of the fact that the defendant's mother was looking for him that night, went out into the street in a panic, police officers arrived at her home and they were also present to know that the defendant was not at home. Later that night, the mother sent text messages to her son. As to this detail, there is no dispute that the defendant lied to his interrogators in his statements to the police. At first he claimed that he had been in his house all night, and later claimed that he was scared and went up to the attic and stayed there all night (see details of his statements to the police below). {Why did the defendant lie and what are the implications for this? - see discussion below}.
When the defendant was asked why he did not see fit to respond to the text messages his mother sent him, he replied as follows: "... After I was arrested in a drug case, my parents kept worrying about it and didn't want me to go out at night, so when my father was abroad, when my mother would fall asleep early, I would go out and sit with S. or my uncle Nadav, and when she called me I didn't have the strength to answer her and that she would dig for me and tell me well, come home now. So I stayed to sleep at S.'s" (p. 494 of the transcript, lines 6-11). He also reiterated this answer in the course of his cross-examination (p. 539 of the transcript, lines 3-10).