It should be remembered that the Israel Police and in this matter the traffic examiner who was in charge of the investigation, Maayan Tsabari, explained that in relation to the Kia vehicle involved, the Israel Police could not unload the data from the airbag computer at all, since the Israel Police does not have the appropriate software for this, i.e., Kia vehicles are not supported in Israel and it is not possible to unload data from them at all.
As mentioned above, during the trial, an attempt was made by the defense, with the accuser's consent, to unload and receive data from the airbag computer of the vehicle involved, but this was unsuccessful.
In relation to the defendant's vehicle, traffic examiner Maayan Tsabari testified that the Israel Police made an attempt to unload data from the airbag computer, but the cables it ordered did not support this.
There is no dispute, that it is correct and proper that the Israel Police would have acted to complete the direction of the investigation of extracting data from the airbag computer of the defendant's car, as it had sought to do at the beginning of the investigation.
The Supreme Court established an important rule in relation to evidentiary damage:Criminal Appeal 2869/09 Hamad Zeinati v. State of Israel, given on November 9,2011. In this case, the Supreme Court recognizes evidentiary damage as a legitimate claim in a criminal proceeding:
"The case law held that the question of the applicability of the evidentiary damage doctrine in criminal law should not be addressed at all, since unlike the burden of proof that exists in the civil proceeding, the burden of proof in the criminal proceeding is in any case on the prosecution. Therefore, the prosecution has the duty to prove the guilt of the defendants beyond a reasonable doubt on the basis of the evidence it presents to the court. The lack of evidence that could have been used by the defendant, in this context, can establish a reasonable doubt, which the prosecution must raise in any case.
Accordingly, the rule is that not every lost investigative material will be sufficient to interpret the evidence against the respondent and that all the prosecution's evidence together must serve as a basis for a conviction beyond a reasonable doubt, even if there was stronger evidence of the defendant's guilt.
At the same time, the court ruled, it is appropriate to distinguish between two types of cases in which evidentiary damage was caused to the defendant. The first case is a case in which the investigative authorities refrained from developing investigative directions that could, according to the defendant, assist in his defense. In such a case, the application of the evidentiary damage doctrine is meaningless, and the investigative directions that have not been developed can serve as evidence that raises a reasonable doubt for the defendant.
This is different when the evidentiary damage is in relation to the evidence submitted to the court. In this case, the investigative failures substantially limit the defendant's ability to challenge the reliability of the evidence, and even its admissibility. In these types of cases, it is appropriate to adopt the doctrine of evidentiary damage in a manner that is appropriate to the purpose and structure of the criminal law. "