"... When the status of a person who has been interrogated by the police changes and he becomes a witness to a suspect in the commission of the offense, he has an even broader right – to remain silent during his interrogation without saying anything even with regard to questions that if he had been a witness, he would have been obligated by law to answer them..." (See also: Criminal Appeal 597/88 Angel v. State of Israel, IsrSC 46(5) 221; and Criminal Appeal 5825/97 Shalom v. State of Israel, IsrSC 55(2) 933, in which the Supreme Court addressed the defendant's lack of explanation as to why he was not willing to give a version during the interrogation).
Admissibility of the recording of conversations that Defendant 3 had with Defendant 1 and Yehoshua Shlosh
- During the trial, in the main case and in the parallel case, the prosecution requested that two CDs be submitted, in which the conversations of defendant 3 with defendant 1 and Yehoshua Shlosh were recorded. In my decision on 18 November 2009, I addressed, first and foremost, the question of the obligation of defendant 3, Araldo Frizzi, to submit as evidence to the court an audio CD in which a conversation he had with defendant 1 was recorded. I also discussed the prosecution's request to re-testify Defendant 3 at the trial of Yehoshua Shlosh, in order to use it to present the CD of the conversation that the two held.
In the body of the decision, I addressed the question of the technical admissibility of the CDs, as opposed to the question of their weight. This is in view of the arguments of counsel for defendant 1 that these CDs are inadmissible as evidence in court, because the original storage media on which the conversation was recorded was destroyed, and as such, it is impossible to guarantee that the content of the conversation that was copied to these CDs is reliable and reflects what was said in the conversation.
After considering the arguments of the parties in this matter, I decided that it is possible to accept the CDs as evidence, and at the same time – the transcripts that were edited, as secondary evidence that can assist the court. The main reasons that led me to make this decision will be presented below.