In the framework of Criminal Appeal 557/06 Alak v. State of Israel [Published in Nevo] (given on April 11, 2007), it was ruled as follows:
"When the court is faced with a decision regarding the weight of a foreign statement – to the tribe or to the charity – it is entitled to make use of the considerations set forth in the section, and inter alia, it is entitled to weigh the statement against the other evidence presented in the trial. However – and this should be emphasized – the list of considerations that appear in the section is not an exhaustive list (Criminal Appeal 949/80 Shohami v. State of Israel, IsrSC 35 (4) 62, 70; 10 Kedmi "On the Evidence" Part Rishon (5759-1999) at p. 297, hereinafter: Kedmi), and the considerations stated therein are not necessary or cumulative (the Abutbul case, supra, at p. 529)..."
See also - Interest Al-Aqa (to which the accuser referred in her summaries), where it was ruled as follows:
"By virtue of the provision of section 10a(c) of the Evidence Ordinance, the court may prefer the version given by the witness in external statements to his testimony in court, provided that he specifies the reasons that were at the basis of his decision. The section also enumerates possible reasons for which the court may prefer the version given by the witness within the framework of foreign statements over his version in his testimony. Among these reasons are the circumstances of the giving of the statement; the evidence presented at trial; The witness's conduct in the trial and the signs of truth revealed during it. However, as emphasized in the case law, this is not a closed list or even an accumulative requirement (Criminal Appeal 803/80 Abutbul v. State of Israel, IsrSC 36(2) 523, 529 (1981); Criminal Appeal 949/80 Shohami v. State of Israel, IsrSC 35(4) 62, 70 (1981)). The case law also recognized additional considerations, which are of great importance in examining the question of whether to adopt the witness's version in foreign statements. These include, inter alia, the reason provided by the witness for changing the version in his testimony, and the manner in which each of the versions given by the witness – in the external statement and in the testimony – is integrated into the totality of the evidence presented before the court (Criminal Appeal 476/84 Debs v. State of Israel, IsrSC 39(4)533, 546 (1985))."
- In order to trace the correct and just result in this context, there is no choice but to refer to the words of witness S., as they were reflected in his statements to the police. S. was interrogated by the police for a long time, and it was clear that we were interested in long and exhausting interrogations. It should be emphasized that he was interrogated on suspicion of assisting the defendant after the murder, as well as on suspicion of drug trafficking and distracting a minor from using drugs. As clarified, the drug cases were closed, both against S. and against the defendant, due to lack of evidence.
- 's statements to the police were submitted to the court file and these were marked, P/211 to P/218. In his first interrogation on 06 March 2016, P/211, after consulting with an attorney, he gave a version on his behalf. In the framework of that statement, many material details regarding the murder were not provided, because he did not remember to say whether he had met the defendant that day, noting that they might have met in the course of their work. He also noted that at around 10:00 P.M., he went out to smoke a cigarette, didn't realize exactly what had happened, saw someone on the floor with a bicycle, police arrived and he went home. He also noted that when he went out to smoke a cigarette, he was alone. Needless to say, in the framework of that statement, the witness noted that there had been a case in the past in which the defendant was attacked by S. in the store.
Moreover, at p. 30 of P/211 (lines 7-9), witness S. said that on the night of the murder, he saw a commotion of people, and then, he went to look and examine the meaning of the matter. He said he thought it was someone who had been "beaten."
- In his second interrogation of the same day, 6 March 2016, in the evening (P/212), S. was interrogated regarding the matter of drugs. Yes, he was asked about the names of clients and denied any connection to the offense of drug trafficking and/or the removal of a minor to drugs. Regarding the murder incident, the witness noted, throughout the interrogation, that it was an incident that took place about a month ago and that he had very severe memory problems. The witness added that he did not remember the details about which he was asked. The witness reiterated that he did not remember many details from that day and that he was not involved in any offense. In the course of that interrogation (p. 32 ibid.), he referred for the first time to the defendant and claimed that in a meeting that took place between them after the murder (perhaps a day or two after the incident), they spoke to each other, and his words were expressed in his testimony: "I must have told him that he had a full, full house near his house... And he had a lot of mobility, and he said to me, "Yes, I heard that someone was murdered with a bicycle, this way and that" (ibid., lines 27-29)
Later, S. noted that the defendant told him that it was written in Mako that it was murder (p. 33, lines 5-6).