(ibid., at p. 227, and see also: Criminal Appeal 6864/03 Rockenstein v. State of Israel, IsrSC 58(4) 657 FCriminal Appeal 10852/04 Nijem v. State of Israel, Unpublished, [Published in Nevo]granted on February 12, 2009).
Parties to the commission of the offense
- One of the questions that arises in this case relates to the status of some of the defendants in this case, and whether they should be viewed as accomplices in the commission of all or some of the offenses, to the extent that it is determined that they were actually committed. Therefore, we must address the question of whether we are dealing with participants in the commission of the offense, whether as co-perpetrators or as accomplices.
Section 29 of the Penal Law states:
"(a) Commits an offense – including committing it together or through another.
(b) Those who participate in the commission of the offense while committing acts for the commission of the offense are committing them together, and it does not matter if all the acts were committed together, or if some of them were committed by one and some by another."
Article 31 30Penal Law Interest In "Helper" Which is defined as follows:
"Anyone who, before or at the time of the commission of the offense, committed an act in order to enable the commission, to facilitate or secure it, or to prevent the apprehension of the perpetrator, the discovery or denial of the offense, or in order to contribute in any other way to the creation of conditions for the commission of the offense, is assisting."
The distinction between a joint perpetrator and an aide was discussed by the Supreme Court inCriminal Appeal 4389/93 Mordechai v. State of Israel, IsrSC 50(3) 239 (hereinafter: "Mordechai Judgment"):
"The difference between the joint perpetrator and the accomplice is expressed in the fact that the joint perpetrators serve as one body to carry out the criminal mission. They are all prime offenders. The responsibility of each of them is direct. Each of them takes part in the main commission of the offense. The contribution of each of the performers together is 'internal'. Each of them is part of the criminal mission itself... Indeed, with regard to the joint execution, it is possible to divide labor among the offenders, in such a way that they will act in different places and at different times, and without each of them having exhausted the offense, provided that his part is essential to the realization of the joint plan. The unity of space and time is not essential, provided that the part of each of them is an internal part of the criminal mission... The Honorable Justice Dorner noted this: '... The responsibility of the joint perpetrator is not limited to a particular criminal act. The context of the matter indicates that the provision applies to participation in the execution of the criminal plan, which may consist of several criminal acts, each of which constitutes an offense in itself' (Criminal Appeal 1632/95, Meshulam et al. v. State of Israel, IsrSC 49 (5) 534)... The perpetrator together has functional control, together with the others, over the criminal activity and its development. He is her master (see M. Kremnitzer, "The Perpetrator in Penal Law – Lines of His Character," Criminal 1 (1990) 65). It is part of its common format (see the explanatory notes to section 29 of the Penal Bill (preliminary part and general part), 5752-1992, at pp. 129-130). He participates 'in the commission of the offense while committing acts to commit it' (section 29(b) ofthe Penal Law... The helper – like the solicitor – is an indirect and secondary partner. It assists in creating the conditions for the commission of the offense by the main offender (or the main offenders who commit it together) (section 31 ofthe Penal Law). The donor's contribution is external. It is not an internal part of the criminal mission itself. He is not the initiator, he is not the one who decides the execution, and he does not control the execution. He is not a master of execution. He performs auxiliary acts that are separate from the commission of the offense by the main offender, and which are 'capable of facilitating, facilitating or securing the commission' (section 31 ofthe Penal Law) '... Those who played a part in the formation of the offense expressed themselves in the actions of auxiliary and bear criminal responsibility as an auxiliary... The aide therefore does not participate in the commission of the offense itself, but rather his part is expressed in the actions external to the offense' (the Honorable Justice Dorner inCriminal Appeal 1632/95 Meshulam et al. v. State of Israel, IsrSC 49 (5) 534)." (ibid., pp. 250-251; see also: Criminal Appeal 5206/98 Abboud v. State of Israel, IsrSC 52(4) 185; Criminal Appeal 1639/98 Dahan v. State of Israel, IsrSC 55(4) 501 and Criminal Appeal 2111/99 Hairu v. State of Israel, IsrSC 58(1) 411).