Section 10A of the Evidence Ordinance - Note
- Shachar, as mentioned above, worked at Wei and was subordinate to Oshri. Naveh worked in Triple C under Nahum. During the trial, the statements that were collected from Shahar and Nava during their interrogations at the Competition Authority were submitted to the court file (Shahar's statements were marked P/557(1)-(11); P/557(12) is his interrogation at the Competition Authority; Naveh's statements were marked P/2-P/4). In their summaries, the parties disagreed as to the admissibility of these statements, especially Shahar's statements, and as to the possibility of relying on them as evidence of the truthfulness of their content, by virtue of the provision of s. 10A of the Evidence Ordinance [New Version], 5731-1971.
- Shachar's Statements - As stated above, Shachar's statements in his interrogations were submitted during the trial. The statements in the notices were proven in the trial. Both in Shahar's testimony during which he was presented with extensive parts of what he said during the interrogations (e.g., p. 2758, s. 20 - p. 2759, s. 2) and usually even before the submission of the statements themselves, and later on in the testimony of the interrogator Adi Egozi (Egozi), who collects the relevant statements (p. 3929, paras. 11-20; in fact there was no real dispute regarding the giving of the statements, p. 6970, S. 22-23). To begin with, the notices were submitted in order to understand the conduct and course of Shachar's investigations at the Competition Authority, without being asked at the time to accept them as evidence by virtue of section 10A of the Evidence Ordinance (p. 2945, paras. 17-18; and before that, p. 2868, paras. 13-17). However, contrary to the arguments raised by some of the defendants in their summaries, the accuser did not declare that she would not seek to construct external statements of Shahar in his statements by virtue of section 10A of the Evidence Ordinance (and also at p. 2918, paras. 1-4, to which they referred, there is no such statement). Moreover, at the time of the submission of the statements and also later and after the testimony of the person who made the statements, it was clear that the accuser could request that at least those external statements be made in the statements in relation to which Shahar was directly interrogated during his testimony (e.g., p. 2943, paras. 19-21; p. 4985, paras. 13-23), and the accuser even clarified later on on various occasions that in her summaries she would seek to receive some of the statements by virtue of section 10A of the Evidence Ordinance (p. 4985, S. 1; p. 5097, s. 4). In any event, as is well known, "where a statement outside of a witness was submitted... A party may ask the court at the summative stage to accept it as evidence for the purpose of section 10a(a), even if he did not draw the attention of the court and the other parties to such a possibility at the time of filing the statement..." (Premium, Part 1 374; See also Criminal Appeal 803/80 Abutbul v. State of Israel , at paragraph 3 of the judgment of the Honorable Justice (as he was then called) M. Shamgar (April 26, 1981); Criminal Appeal 365/81 Oshri v. State of Israel , at paragraph 11 of the judgment of President Y. Cohen, where the determination was upheld that questions relating to the use of the provision of s. 10A should be discussed at the sentencing stage (December 26, 1983)). In our case, there is no dispute that the statements in the notices were proven. There is also no dispute that Shahar was a witness in the trial, that the parties were given an opportunity to interrogate him, and that they did so extensively and comprehensively. In this state of affairs, in those matters in which Shachar's testimony differed in a material detail from what he said in his statements or claimed that he did not remember the words, the conditions for admissibility are met in accordance with section 10a(a) of the Evidence Ordinance. Another question is whether there is room in certain circumstances to prefer foreign statements and statements made by Shachar in his statements during interrogations to things he said in his testimony at trial, by virtue of section 10a(c) of the Evidence Ordinance. This matter will be examined to the extent that it is necessary individually, taking into account a concrete external statement whose preference is required and the determination of findings on the basis of it, while referring to his testimony on the matter at hand and on the basis of all the circumstances and the rest of the evidence that was presented. It should also be noted in this context, for the sake of caution, that as a rule, I did not see the preference and determination of findings over such a foreign statement where the accuser did not point out in her summaries that Shahar was interrogated in his testimony in a concrete manner in relation to that statement or in relation to the matter on which it was referred. Finally, and beyond what is required, it should be noted that the defense's arguments relied on the significance of the very submission of the notices. However, as stated above, for the most part, during his testimony, Shahar was presented with what he said in the statements, while confirming what he said and relating to them on their merits, even before the submission of the statements themselves. In any case, the practical significance of the submission of the notices themselves is limited.
- Naveh's Statements - As stated above, Naveh's statements in his interrogations were also submitted during the trial. The notices were submitted at the request of some of the defendants and with their consent (pp. 82-83). The parties clarified that the submission of the notices did not constitute an agreement by any of them to the rule stated in the notices, in a way that left an opening for each party to request to build on external statements of one kind or another (ibid.). The accuser also clarified that she agreed with the same statements made by Naveh in his interrogations that were contrary to his interest (p. 83, paras. 3-5, paras. 14-16). The possibility of relying on Naveh's statements by virtue of Section 10A of the Evidence Ordinance gave rise to less controversy in the parties' summaries. In any event, there was no dispute that Naveh's statements were proven at trial since his statements were submitted with consent. Naveh testified at the trial and was interrogated for a long time. Therefore, whenever Naveh's testimony differs in a material detail from what is stated in the notices, or when he did not remember the matter, there is no difficulty in determining that the conditions of admissibility are met. The question of whether in certain places the things he said in his interrogation should be preferred to what was stated in his testimony will be discussed to the extent that this is necessary in the context of the hearing of the various charges and in relation to an individual statement.
A note regarding the impression of the testimonies of Shachar and Naveh
- As stated above, Shahar and Naveh testified at the trial as prosecution witnesses, after each of them was convicted as part of a plea bargain made with him. In the hearing of the charges, we will address the relevant parts of each testimony as necessary. At this stage, we will comment in a general way regarding the impression that arose from the testimonies of Shachar and Naveh.
- Shachar - Shachar's testimony spread over ten meetings.
The testimony gave the clear impression that Shahar was in opposition to the accuser, while on more than one occasion he showed conspicuous hostility towards her and hurled harsh accusations at her (see, for example, p. 2705, para. 3, "They are judged for it like the last of the thieves"; P. 2613, paras. 18-22, where he explained that he did not want to come and testify after "the Competition Authority brought us to such a situation after our honor, livelihood and soul were trampled upon over the course of a decade and the people were incited... One on the other..."; p. 2621, paras. 5-18, where he accused that the Competition Authority is not looking for the truth, but only to "sew a file"; p. 2956, paras. 3-15, where he argued that the Competition Authority was the "Authority for Abuse" that destroyed his life; and on and on).