When a collective dispute was added, as stated above, to section 149, which deals with protection from justice, the definition adopted is: "a material contradiction to the principles of justice and legal fairness." In the wake of the Israeli ruling, it seems that the outcome test and not the prosecution test were adopted (for an analysis of this question, see: Tamir, Intention to Discriminate, ibid., at p. 640). The discrimination itself is examined according to an objective test. In this regard, the words of the Honorable Justice D. Barak Erez in the Darwish case (in paragraph 12 of her judgment) are appropriate:
"In our method, the question of discrimination is also examined according to an objective test, i.e., the test of the outcome. A decision that leads to a discriminatory result will be invalidated even if it is based on a pure motive and even if it is an unconscious discrimination."
In light of the words of the Honorable Justice Y. Zamir in the Zakin case, it is appropriate that the result be examined, and not only the motive behind the conduct of the prosecution. It should be emphasized that when it comes to the violation of equality in other matters, the emphasis is always on the result and not necessarily on the motive (see, in this regard: Criminal Appeals Authority 4562/11 Muhtasev v. State of Israel [published in Nevo] (2013), and Yitzhak Zamir and Moshe Sobel, "Equality before the Law", Mishpat Ve-Mishmal 5 165, 188 (560)60). Of course, the motive, and the degree of infringement of equality, will be central considerations in the balance between equality and other values, which must also be conducted in the framework of the examination of whether this is a violation of equality within the framework of the defense from justice claim. In addition, the degree of good faith, and the considerations of the authority, even when the result is a violation of equality, will be examined in the framework of the question of what remedy should be granted to the defendant.