It was also held in the majority opinion in the Hajj Yahya that the opportunity to interrogate the witness is not necessary in the face of the demonstration silence, since the silent witness declares in his silence that he is not willing to create an infrastructure for comparison between the versions. The interrogation was exhausted, as it were, because he made it unnecessary by not answering everything they asked him. Hence, even in this state of affairs, the requirement of opportunity given to the parties to cross-examine is met. The same is true of the witness who answered the questions with a stack of words and incomprehensible words. According to the halakha established in the case of Hajj Yahya, this does not mean that there is no opportunity to interrogate, as long as there was an opportunity to see the witness and be impressed by his reaction.
In a case where a witness refuses to cooperate on the witness stand and answer the questions asked, or most of them, but at the same time does not deny what he said to the police, there is no impediment to accepting his statement even without relying on Section 10A(a) to the Evidence Ordinance, since confirmation of things that were given during the interrogation makes the written statement admissible (Criminal Appeal 71/76 Merrill v. State of IsraelIsrSC 30(2) 813 (1976)).
Thus, when a witness appears to testify physically, despite his refusal to testify, or he fills his mouth with water, is silent, does not answer questions, or answers in a meaningless manner, he can be seen as a "witness in the trial" for the purpose of Section 10A(a) to the Evidence Ordinance. This was even when the defense was not allowed to cross-examine the witness in an effective cross-examination.
The Third Condition concerns the difference between the testimony and the statement in a substantive detail, or when the witness denies the content of the statement, or claims that he does not remember its contents. As determined in case law, this requirement is satisfied whenever the witness does not repeat what he said when it comes to material matters, andIt does not have to be expressed in the contradiction between them (See Criminal Appeal 9265/96 Abramov v. State of Israel, 35(3) 481; Criminal Appeal 9613-04 Zion Ben Simon v. State of Israel (4.9.2006)). In order to satisfy this condition, it is sufficient that we are dealing with irrelevant answers by the witness or those that were given in order to fulfill the obligation, and whether we are dealing with evasive answers or even denial of the very fact that the statement was made. When there are substantial contradictions between the witness's statements in court and his statements to the police, then we are dealing with testimony that differs from the statement in a substantive detail (see: Criminal Appeal 657/81 Danoch v. State of IsraelIsrSC 36(3) 818; Criminal Appeal 365/81 Oshri v. State of Israel; Criminal Appeal 116/87 Nahmias v. State of Israel, 41(4) 716; Criminal Appeal 254/88 State of Israel v. Tamsum, 44(4) 663; Criminal Appeal 2251/90 Hussam bin Mujahid v. State of Israel, 48(5) 221).
- Section 10A(c) The Evidence Ordinance states:
"The court may rely its findings on a statement made under this section, or on part thereof, and it may prefer the statement to the witness's testimony, all if it deems it necessary to do so in light of the circumstances of the case, including the circumstances of the statement, the evidence presented at trial, the witness's conduct in the trial, and the signs of truth discovered during the trial, and the reasons will be recorded".