Wei sought to support her arguments, inter alia, in the judgment in criminal case (Jerusalem District) 371/04 State of Israel v. Saida (30 October 2005). However, this is not the same as evidence. There were representatives of the committee (the client) who asked the contractor (a bidder who received the execution of the works) to arrange additional price quotes, after which they said "as if he had won" (for example, in paragraph 20 of the judgment); In this way, the matter is substantially different from the conduct of the charges that are the subject of the indictment (and it is possible that they are somewhat similar to the conduct discussed above with respect to the ELA transaction that was not included in the indictment before me (see paragraph 914 above; since the coordination was made behind the backs of a civil appeal and without her knowledge, the reference to section 188A(1)(b) of the British Enterprise Act 2002 does not even change it).
- Trifles – Another argument raised by the defense is that in the circumstances of the case, the exception set forth in section 34G of the Penal Law dealing with trivial matters applies (for example, paragraphs 814-837 of Harel's summaries). In this context, it was argued, inter alia, that the suppliers-defendants could not request an exemption from the arrangements between them due to the exemption given to IBM, that the arrangements did not harm the public coffers, since the civil appeal is an experienced customer with bargaining power, and that a supplier that submitted a high coordinated bid at the request of another supplier did not receive compensation for it, since the submission of coordinated bids was a sick evil in the market.
I cannot accept these arguments. Our matter does not come – nor does it come close to coming – in the realm of trivial matters.
Section 34Z of the Penal Law instructs that "a person shall not be held criminally responsible for an act if, in light of the nature of the act, its circumstances, its consequences and the public interest, the act is trivial." The purpose of this principle is to exclude from the application of the offense those acts that do not reach the threshold of criminality, which are below the threshold of severity and anti-sociality, which are of minor value and have minimal harm. It was held that the exception, which is an exception to the rule, should be applied with caution and where the effect of the act is so minimal that it is inappropriate to taint the perpetrator with a criminal conviction (Ariel at paragraphs 23-26). The trivial exception applies in principle even when we are dealing with offenses of the Competition Law (e.g., the Borowitz case, at paragraphs 88 and 184, the Ariel case at paragraphs 27-29, and see also Additional Civil Discussion 3113/03 A.M. Haniot (Jerusalem) 1993 in Tax Appeal v. Jerusalem Municipality in paragraph 12 of the decision of the Honorable Justice (as he was then called) M. Cheshin and cited there (10 July 2003)). In the Supreme Court's ruling, the opinion was expressed that in view of the mechanisms set forth in the Competition Law, which allow the parties to a restrictive arrangement to request in advance an exemption or approval of an arrangement whose harm to competition does not justify prohibiting it, this raises the obstacle facing those who claim the applicability of a trivial restriction and that the opening of this restriction is narrower and permission to pass through it will be given sparingly (the Ariel case, at paragraph 29).