Criminal Appeal 1204/23 State of Israel v. Michael Yehuda Stettman

Criminal Appeal 1204/23

Judge Alex Stein:

Basic Concepts

1. Judgment stands for the truth. This statement is especially true in relation to criminal law.  The criminal law practiced in our districts has two overarching goals: convicting the guilty and acquitting the innocent.  For these purposes, a primacy status that cannot be diminished or diluted under any circumstances, whatever it may be.
2. A basic rule has been with us since the beginning of the life of the state. It was determined inCriminal Appeal 1/48 Sylvester v.  Attorney General, IsrSC 1 5 (1948) (hereinafter: the Sylvester case), as follows:

"Since this is the first criminal appeal in the State of Israel and the formal arguments have occupied a significant place in it, I consider it obligatory to say here what in my opinion should be the attitude of the court in criminal trials to procedural claims.  One of the legal scholars once nicely referred to the Penal Code as the criminal procedure as "the criminal's magna karta." There is great wisdom in this terminology.  They want to emphasize the idea that the criminal procedure and its laws contain a barrier to miscarriage of justice in favor of the defendant.  They want to give the defendant full and fair protection.  But this healthy idea must not be distorted by exaggerating formality.  Good criminal procedure should certainly give the defendant full protection in order to prevent miscarriage of justice, but criminal proceedings should not take the form of an Ashkookan game in which one wrong move determines the fate of the game.  The role of the criminal trial is to produce a light of the law.  It is indeed better for ten wicked people to be found guilty than for one righteous person to be found guilty, but what is this about? When the question is proof of guilt and not when Scripture speaks of technical deficiencies in the indictment and the like.  To questions of this kind, the rule shall not apply to the enjoyment of doubt" (see: ibid., at p.  18; emphasis added - A.S.).

3. As a result, a judge who sits on the court in a criminal matter must rule on the truth of the law, and he has no higher public-state duty than this. This is the practice in the trial courts that hear witnesses and are impressed by the rest of the evidence, and this is how the appellate courts are supposed to operate.  It has been a precedent with us, since time immemorial, that "when it sits down to appeal, the Court of Appeals must give the same judgment that should have been given in the first instance [...] and even without an explicit provision in the statute, this duty is imposed on the Court of Appeals by its very nature, as it is an appeal" (see: High Court of Justice 86/58 Buganim v.  Chief of the General Staff, IsrSC 12 1653, 1663 (1958) (emphasis added)).  The obligation to give a true judgment comes in tandem with the general and broad authority to do so.  With regard to this power, we have long known that "the jurisdiction of the Court of Appeals is not limited to clarifying the reasons for the appeal, but rather it is broad and extends over the entire area of the dispute, as was the case in the Court of Staff" (see: Criminal Appeal 54/79 Borowitz v.  State of Israel, IsrSC 34(1) 197, 206 (1979) (hereinafter: the Borowitz case)).
4. The Ottoman Settlement [Old Version] 1916 This fundamental principle - which, as noted, embodies the authority and duty of the court to render a true judgment - shall be called the principle of truth This principle is almost fully enshrined in section 213 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: the Chesdap), which deals with the jurisdiction of the Court of Appeal.

12-34-56-78 Chekhov v.  State of Israel, P.D.  51 (2)