In Criminal Appeal 10082/04 Abramov v. State of Israel (unpublished, [published in Nevo], given on October 25, 2006), the Supreme Court held that: "Investigative failures may lead to the acquittal of a defendant... However, this does not mean that every omission, or even the accumulation of a number of omissions, will necessarily lead to an acquittal... The question that the court must ask itself is whether the omissions amount to leaving a reasonable doubt as to the guilt of the defendant..." (See also Criminal Appeal 4414/05 Abu Hattab v. State of Israel [unpublished, [published in Nevo], given on November 20, 2006]).
And in Criminal Appeal 6858/04 Anonymous v. State of Israel (unpublished, [published in Nevo], given on September 8, 2005) it was held: "... Where the defendant's defense has not been deprived, the failure of the investigation in itself is not sufficient to bring about the acquittal of the accused..." (See also Criminal Appeal 7535/02 Odeh v. State of Israel [unpublished, [published in Nevo], given on December 2, 2002]).
Recently, the Supreme Court, in Criminal Appeal 5124/08 Jaber v. the State of Israel (unpublished, [published in Nevo], given on July 4, 2011), addressed this issue, and in its rejection, it argued that investigative failures should lead to the dismissal of the indictment.
- After examining Bae's arguments-Defendants 1, 3, 4 and-5 With regard to the application of the defence from justice, I have reached the conclusion that the claim should be dismissed.
As for the claim that the court was exposed to "involved and questionable" prosecution witnesses, which should have been prosecuted, I did not find any substance in it. The prosecution's decision not to file an indictment against them is rooted, at least prima facie, of substantive considerations, and in essence it is a matter of the lack of sufficient evidence for the purpose of prosecuting them. This is not selective enforcement, and in any event, there is no similarity between what can be attributed to those witnesses and the charges attributed to most of the defendants. It should also be noted that this argument is tantamount to harnessing the cart before the horses, since the court has not yet spoken on the question of whether these are indeed "questionable" witnesses, as claimed, or whether we are dealing with witnesses who gave true testimony, at least in those parts of which they testified in court.