The issue of evidentiary damage as a ground establishing the claim of "protection from justice" was also discussed in case law. In Criminal Appeal 933/95 Kashi Meirowitz, Earthworks v. State of Israel (unpublished, [published in Nevo], given on May 16, 1995), the Honorable Justice Dalia Dorner held that:
"... The assumption is that all the investigative material is likely to assist the defendant in his defense...
It follows from this that the burden of contradicting the assumption that the investigative material that was not made available to the defendant is relevant to his defense rests with the prosecution. This burden is heavy: only where the prosecution has presented evidence beyond a reasonable doubt that investigative material that has not been made available to the defendant is irrelevant to his defense, will he be convicted."
The duty to disclose the investigative material derives from the authority's duty to preserve the evidence in its possession. However, the loss of evidence, due to negligence, which does not prejudice the defendant's defense, may not necessitate the granting of relief for the failure to conduct the trial (Nakdimon, at p. 393). In a number of cases, in which the claim of evidentiary damage was accepted as a ground establishing the "defense from justice" in practice, it was proven that the evidence was central and essential to the defendant's defense.
In the case law, we also found another option for granting relief in the event of loss of evidence, namely the determination of the assumption that the lost evidence was sufficient to support the defendant's version (Criminal Appeal [Jerusalem District] 1069/99 State of Israel v. Atzmon, unpublished, [published in Nevo], given on April 29, 1999).
As for the argument that the indictment should be quashed or the defendants should be acquitted due to investigative failures, the rule is that the court must ask itself whether these omissions amount to leaving a reasonable doubt as to the defendant's guilt, and whether these are omissions so serious that the defendant's defense has been deprived, who is unable to properly deal with the evidence against him and prove his version. As stated, it is not enough to point to an investigative failure in itself in order to lead to the acquittal of the accused, unless it is a failure that causes material harm to the defendant's defense.