As to the box in the provision of the section, "The Signs of Truth Revealed During the Trial" The case law held that this expression does not relate specifically to the marks that arise from the witness's face and movements during the testimony. He refers to the process of comparing the statements made by the witness with other evidence, or examining them according to the logic and life experience that is available to the court to help when dealing with the evidence that requires filtering and assisting in deciding between the versions (Yaniv and Aki, Law of Evidence - Volume 3 1351-1353 (2021)).
So yes, The preference of the foreign statement over the testimony given in court is at the discretion of the court, similar to the weight that should be given to this statement. The preference for the statement will be made in accordance with the balancing tests set out in the section - the circumstances of the statement, the evidence presented at trial, the witness's behavior at trial, and the signs of truth discovered during the trial.
- and from the general to the individual; As noted, during the complainant's testimony in court, in the midst of his main interrogation, it became clear that the complainant was deliberately refusing to cooperate in his testimony in a deliberate, hostile and defiant manner, and refrained from responding to the questions addressed to him by the plaintiff and the court. The complainant even blatantly refused to answer basic questions, such as where he was hospitalized and why he needed medical treatment. The defendant repudiated his statements to the police officers at the hospital, denied them and contradicted them (for example, the question of where he had cut his hair, and the sequence of events of the day he was shot). Therefore, after a hearing, the prosecution's request was granted, the complainant was declared a "hostile witness" and the accuser received recorded footage of the complainant's interrogation on July 28, 2022 at the hospital (P/100) and the main points of his statement as recorded by Policemen Siyanov and Yehia (P/66).
The complainant's testimony is a clear case in which the prescribed conditions are met In section 10a(a) to the Evidence Ordinance, in a manner that justifies accepting as admissible evidence the complainant's statement to the police officers Siyanov and Yahya, which was taken from him at the hospital. As stated, the main points of the statement were documented in writing, and continuous recordings of the statement (despite its poor quality) were submitted to the court, and the police investigators who collected it testified on behalf of the prosecution and were questioned about it. The complainant was a witness in the trial, and the parties were given an opportunity to cross-examine him. Finally, there is a huge gap between what the complainant said to the police officers at the hospital and his testimony in court - the gap between someone who is familiar with the details and someone who refuses to repeat them and "remembers" nothing and knows nothing.
- During the testimony of the complainant's wife, a decision was made to receive her statements from the police by virtue of the Section 10A(a) to the Evidence Ordinance, because the witness chose to remain silent in her testimony in court. However, unlike the complainant, the complainant's wife repeatedly referred to her statements to the police, and confirmed that she had given the truth in her statements to the police, that she had signed them and that she did not retract her planned statements (P/64, P/65). The witness also noted that she called the police after the incident, and gave the police the truth (p. 329 of Pruth). As noted, a witness who stands on the podium but refuses to testify or cooperate is also considered a hostile witness. His silence is a defiance of the desire to voice and investigate him. The complainant's wife confirmed the content of her statements, and when she chose to remain silent in her testimony and not to cooperate, the conditions were fulfilled Section 10A(a) to the Evidence Ordinance. As stated, the statements of the complainant's wife were documented in writing and even photographed, and in her testimony she referred to her words to the police during her interrogations, while saying more than once that everything she said was true and she did not retract it. The complainant's wife testified on behalf of the prosecution and the parties were given an opportunity to interrogate her. Therefore, since the complainant's wife adhered to her silence on the witness stand, her statements to the police were accepted as admissible evidence.
- The complainant and his wife came together to give their testimony in court. First, the complainant's wife testified, and then the complainant himself testified. A comparison of the complainant's wife's conduct and attitude when she gave her statements before the trial began with her testimony in court shows an abysmal change and a sharp turn in her ability to cooperate. Vadoku, the complainant's wife, gave her statements to the police on July 20, 2022 and July 26, 2022, when she had no communication with the complainant, since he was anesthetized for medical treatment. Her second interrogation was documented on video, and it is clear from it that at the time she was imbued with motivation and a strong desire to do everything in her power to help the law enforcement agencies capture the person who shot her husband in front of her eyes and thus endangered her and her toddler son. As detailed above, the complainant's wife made sure that the police were documenting her words, and promised them to testify in court and do whatever was necessary, according to her, to catch the shooter and that the judicial system would punish him. On the other hand, when she arrived to testify, about 10 months later, accompanied by the complainant, it was evident that she was frightened, frightened, and anxious. The complainant's wife did not hide her fears by saying:... I'm in a place where I'm threatened, come on, the person here is...". The complainant's wife appeared to be in an internal struggle, and it is clear that she was under pressure that limited her from untying her tongue and telling the court everything she wanted, as a witness who witnessed the shooting incident. At the beginning of her testimony, the complainant's wife gave a taste of her silence because she did not believe in the court system, but concluded her testimony by telling the judges of the panel: "You are doing holy work and thanksgiving". In between, the complainant's wife's internal struggle, among herself, due to some restrictions that bound her and prevented her from giving her testimony, led her to crying, stress, and even vomiting. At the same time, the complainant's wife said, more than once, that she had told the police the truth in her interrogations, as follows: "I stand behind my testimony word for word, yes? Everything I said was exactly what I couldn't talk about" (p. 322 of Pruitt); And: "Everything I said in the testimony was all recorded, that's exactly what happened. When you see it, you will know that this is exactly what it was" (p. 322 of the protégé). Moreover, and this is the main thing, an examination of the content of the complainant's wife's statements received real confirmation from the photographic footage of the events in the playground, regardless of the question of the identity of the shooter.
Therefore, I am convinced that what was recorded by the complainant's wife before the police, and even recorded on video, are truthful, and this is according to my impression, which is not mediated by the manner in which she gave her testimony in court, as expressed in her answers and responses as quoted above, and I found them to be preferable to her testimony in court and to give them the full weight they deserved.
- The metamorphosis in the conduct of the complainant's wife, with regard to the giving of her testimony, is not detached from the change that was evident in this matter for the complainant as well. As noted, the complainant gave his statement to the police shortly after he woke up from a coma of about eight days, from the date of the shooting incident. From the testimonies of the policemen, and especially from listening to the recording of the conversation between the complainant and the policemen, it was evident that the complainant's fears and fears were evident, as he did not want to cooperate with the police and give his version of the incident during which he was shot. The complainant explicitly stated that he feared for the life of his son, who, as mentioned, was by his side in the shooting incident. The police spoke to him in order to persuade him to help them capture the perpetrator, while refraining from telling him about the defendant's arrest as a suspect in the act, and also sought to calm him down by hiding from him that his words were being recorded. Until finally, the complainant changed his mind and instructed the policeman: "Write." At that time, the complainant provided many personal and family details about the perpetrator of the shooting, which he said he had known years earlier, including: his full name, nickname, address, description, age, origin, the tragedy experienced by his family following his brother's death, the details of the conversation that took place between them - first at the entrance to the barbershop and later in the playground, the type of weapon used by which the shooting was carried out, the distance between them during the shooting, the business relationship between them, and more. The complainant even identified the shooter according to a photo shown to him by the police, only after he provided his name and identifying details about the defendant. It should be clarified by now, after listening to the conversation between the complainant and the police over and over again, and despite the difficulties in hearing everything that was said, in view of the background noise and the weakness of the complainant's voice, it appears that the complainant knew very well who he was, and gave precise details about him, and all this without the police directing him or putting words in his mouth. In fact, all the identifying details provided by the complainant about the defendant were found to be correct and based on separate evidence - for example: his address, nickname, description, the death of his brother in tragic personal circumstances, his financial entanglement, etc. - as will be further expanded later. It has not escaped my notice that the complainant confused the name "Tegania" with the names of the accused, since he immediately corrected himself and clarified that he was referring to "Ashbir Tarkin", also known as "Yayo". As has been ruled more than once, the court may split a foreign statement that has been found to be admissible, adopt parts of it as reliable, and reject other parts by way of "plagines of speech" (Criminal Appeal 6900/98 Akav v. State of Israel, IsrSC 35(3) 126, 141-142 (1999)).
The first sign of the change in the degree of cooperation was revealed when the complainant's wife informed Officer Sayonov that the complainant was not interested in coming to another interrogation, even though it was scheduled for him at the request of the complainant's wife herself, as detailed in a memorandum prepared by Officer Sayonov on August 4, 2022, and detailed above (P/94).