Therefore, I saw fit to make a number of inexhaustible comments on this matter as well.
- Examination of the Implications of the Unlawful Search in the Framework of the Main Proceeding
- As a rule, when the court hearing the main proceeding comes to examine evidence, it is not bound by the judicial conclusions reached by the panel that heard the case at the investigation stage (see, for example: Miscellaneous Criminal Applications 8087/95 Zada v. State of Israel, IsrSC 50(2) 133,150-146 (1996); Mamet Case, at para. 9; Miscellaneous Criminal Motions 1572/05 Zoaretz v. State of Israel, para. 7 [published in Nevo] (April 10,2005); Other Appeal (Hai District) 52758-07-21 Ben Harush v. Coastal District Police, paragraphs 27-31 [published in Nevo] (August 1,2021); see also Kitay Sanjaro, at p. 302). In addition, when the need arises to examine judicial decisions made at the interrogation stage or actions taken by the authorities at that stage, the examination is made against the background of the considerations examined in real time and the information that existed at the time, and not on the basis of information that was later discovered (see, for example: Miscellaneous Criminal Applications 2477/15 Gabbay v. State of Israel, para. 8 [published in Nevo] (May 4,2015); Criminal Appeal 5104/06 in Newryshville v. State of Israel, para. 9 [published in Nevo] (May 21,2007); Criminal Appeal 5923/07 Shtiawi v. State of Israel, para. 12 [published in Nevo] (April 6,2009); Criminal Appeal (Hai District) 22379-08-20 Schumacher v. State of Israel, para. 26 [published in Nevo] (November 19,2020); Criminal Appeal (Nevo) 42878-06-16 Sachs v. State of Israel, para. 33 [published in Nevo] (December 13,2016); see also Kitay-Sanjaro, at p. 365).
There are two reasons for this: The first is the understanding that the uncertainty that prevails at the interrogation stage requires decisions to be made under a certain ambiguity, so that the attempt to criticize decisions made at this stage on the basis of information that was later discovered is "wisdom after the fact", and may lead to erroneous conclusions regarding the justification of the decisions made. The second reason relates to the essence of the main proceeding and the limited and defined role of the court hearing it: to determine the guilt or innocence of a defendant and to sentence him accordingly (Yaakov Kedmi on Criminal Procedure: Part Two - Proceedings After an Indictment, Vol. 1,1496-1498 (updated edition, 2009); ibid., vol. 2, pp. 1653-1654). In this framework, even when it is determined that there was a flaw in a judicial decision from the investigation stage, the examination conducted by the court hearing the main proceeding focuses on the implications of that decision on the defendant's case - for example, on the question of the admissibility and weight of the evidence collected - and not on the justification of the judicial decision on its merits (see, for example: Criminal Appeal 2996/09 Anonymous v. State of Israel, paragraphs 55-59 [published in Nevo] (May 11,2011); criminal case (Shalom J.M.) 23015-03-15 State of Israel v. Topolansky, para. 10 [published in Nevo] (December 22,2016); criminal case (Shalom Y.M.) 1934/05 State of Israel v. Vanunu [published in Nevo] (February 19,2006)).