The case law has set a number of tests for examining the admissibility of recording a conversation as evidence. Most of them, like all of them, are intended to ensure that the recording is reliable and faithful to reality, and see what is stated in Yaakov Kedmi's book on the evidence, part two, p. 1143 (combined and updated edition, 5764-2003) (hereinafter: "Kedmi"):
"The test of technical admissibility is intended to ensure that the recording is reliable and faithfully reflects what happened in reality at the time it was made, i.e., that it is a proper and reliable recording facility, that the recording itself is complete, clear and decipherable, and that nothing has been done to distort the truth, neither by improper interference in the recording process nor by improper interference with the recording film afterwards."
With the technological developments in the field of recording, it was determined that the reliability of a tape would be examined according to the completeness of the recording and less according to the technical details of the method of recording, as stated in criminal appeal 2801/95 Corkin v. State of Israel, IsrSC 52(1) 791, 803:
"The center of gravity has been shifted from the technical details of the integrity of the recording – the device and the films – and from the skill of the recorder, to the integrity of the recording, with defects and defects interrupting the conversation not invalidating the film's admissibility in the first place, unless they leave a concern that the recording does not present a reliable picture of the conversation."
In light of this, I do not believe that the absence of the original storage media in which the conversation was recorded, i.e., the recording device itself, impairs the reliability of the recording, and this, as stated, provided that it is submitted to the court in full, in order to faithfully reflect the conversation that took place.
Moreover, following the deletion of the original recording, the CDs, to which the conversation was copied, constitute secondary evidence that can be accepted as an exception to the rule of better evidence (see Kedmi, at p. 597 on this matter). The court may require this kind of evidence to reach the truth, if it is convinced that the original recording was not destroyed intentionally. It is clear that if defendant 3 wished to conceal the entire content of the conversation from the court's eyes, he would have taken the trouble to delete its contents from his personal computer and the CDs in his possession. Hence, the deletion of the original conversation from the recording device was not done with the intention of concealing the existence of the evidence, and it is possible that this is rooted in the lack of foresight of the developments in the case (as stated in criminal appeal 869/81 Snir v. State of Israel, IsrSC 38(4) 169, 203, 222). In these circumstances, there is no difficulty in submitting a copy of the conversation, i.e., the CDs to which the conversation between defendant 1 and defendant 3 was copied and the conversation between the latter and Yehoshua Shlosh, as evidence to the court.