In this context, I will appeal to a criminal appeal 8721/04 Ohana v. State of Israel, paragraph 21 (June 17, 2007), where it was held that:
"The temporary concealment of evidence clearly violates the protected values underlying the offense of obstruction of justice, and it has real potential to thwart the judicial process. Therefore, it is appropriate to apply the rule of expectation to this offense, and to conclude the existence of the mental element required where the defendant foresaw that the delay in handing over the evidence to the police is liable to lead, with a near certainty to the disruption of the proceedings of the trial."
Thus, we are dealing with a behavioral-objective offense and not a consequential offense, i.e., there is no need for a connection between the behavioral component - "doing something" - and the possible result of the failure of a judicial proceeding. It is therefore possible to suffice with the "intention" to prevent or thwart a judicial proceeding, even without achieving the aforementioned result, and the offense does not require that the act done in practice have an impact on the course of the investigation or trial (see, for example: Yaakov Kedmi on criminal law, Updated Edition, 2009), pp. 1575-1576, 1579; Criminal Appeal 150/88 Lushi v. State of IsraelIsrSC 42(2) 650 (1988); Criminal Appeal 236/88 Eisman v. State of IsraelIsrSC 44(3) 485; Criminal Appeal 8702/12 Zawi v. State of Israel, para. 21 of the opinion of the Honorable Justice A. Rubinstein (July 28, 2013)).
- In our case Policeman Emanuel Aviv prepared an action report on July 20, 2022 at 13:21, in which he documented, among other things, that during the search of the defendant's room in his family's apartment, the conversation took place between them as documented in the action report as follows: "I asked him again if he understood why I was with him, the detainee told me that it must have something to do with the shooting, I asked him what I was looking for, you want to tell me, the detainee nodded with his head and pointed to me with his right hand the shape of a gun. I told the detainee if he was willing to show me where it was, the detainee told me that he was afraid for his family and that I would promise him that I would take care of him and his house, and then he would take me to the area where he put it in the area of the sea in Jaffa. I told him to stop, I couldn't promise him such a thing because I couldn't be a security company, and that he had to tell the interrogation exactly why he was afraid and what happened that made him do what he did. At this point, I ended the conversation with the detainee because he didn't want us to talk anymore because I don't promise him anything he asks for" (P/12). All this, even before the defendant was told of the occurrence of an incident that included shooting. Policeman Aviv repeated this in his testimony as well (pp. 193-195 of Prut). Reinforcement of the defendant's statement is found in the defendant's arrest report on July 20, 2022 at 15:25, when he said in his response to the arrest: "I need you to take care of my family so that they don't get hurt" (P/13), similar to his demand from Policeman Aviv as a condition that he disclose where he hid the weapon.
- Concealing the gun and refusing to reveal its location is considered concealment of evidence with the intention of obstructing a judicial proceeding. In the present case, this is a foreign statement by the defendant, during the search that was carried out in his home, after he was arrested and his rights were read to him. The testimony of Policeman Emanuel Aviv, who documented this foreign statement, among other things, was found to be reliable and his words were not concealed. Moreover, this was reinforced by additional evidence of the type of "something else", since the defendant's silence in his interrogations on this matter as well (P/74A, P/74B), and his false testimony in court meet this evidentiary requirement.
- Once it is determined that the defendant used a firearm, and when he tells the police officer that he hid the gun, while setting conditions for his cooperation, so that in the end the weapon was not found, I am satisfied that the determination that the defendant concealed evidence with the intention of disrupting a judicial proceeding is necessary. As stated, we are dealing with a behavioral offense that does not require a result. The defendant's conduct indicates that there is a mental element of awareness of the nature of his actions and the circumstances of their execution, with a special intention to disrupt the trial proceedings in his case in order to evade the fear of the law.
- Therefore, I am satisfied that in the defendant's case, the elements of the offense of Obstruction of justice, and he must be convicted of carrying it out.
Unlawful possession of a knife
- Section 186(a) to the Penal Law entitled "Unlawful possession of a fist or knife", states as follows:
"Anyone who holds a fist or knife outside the boundaries of his home or yard and does not prove that he held it for a legitimate purpose shall be sentenced to five years' imprisonment."