Case Number

HCJ 9264/04

Date Decided

6-6-2005

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The third respondent (‘the respondent’) was indicted in the Jerusalem Magistrates Court for an offence of committing an indecent act. The victim of the alleged offence (‘the complainant’) kept a personal diary and the parts that were relevant to the period during which the complainant and the respondent were acquainted with one another were photocopied and sent to counsel for the respondent.

Counsel for the respondent applied to inspect the whole diary under s. 74 of the Criminal Procedure Law. The Magistrate Court ordered the prosecution to produce the whole diary for inspection by the court, after an ex parte hearing where it heard only the arguments of the respondent. The decision was upheld by the District Court on appeal. The state filed a petition in the High Court of Justice to set aside the decision to produce the whole diary, on the grounds that the court had no jurisdiction under s. 74 of the Criminal Procedure Law to order the state to produce the whole diary, since it was not in the possession of the state, and that a proceeding under s. 74 of the Criminal Procedure Law disproportionately violated the right of the complainant to privacy. According to the state, counsel for the respondent should have filed an application under s. 108 of the Criminal Procedure Law to order the complainant to produce the whole diary, since this would violate the complainant’s privacy to a lesser degree.

Held: The power of the court to inspect material under s. 74(d) of the Criminal Procedure Law should be interpreted broadly. The fact that material is not in the possession of the prosecution and the fact that there is an alternative proceeding under s. 108 of the Criminal Procedure Law do not deprive the court of the power under s. 74(d), even if they may limit its use. The main consideration when the court exercises its power under s. 74(d) of the Criminal Procedure Law is the relevance of the material to the indictment and the likelihood that it will be of benefit to the defence.

When the inspection of material involves a violation of the basic rights of witnesses or complainants, the court should find the proper balance between these rights and the rights of the accused to a fair trial.

With regard to personal diaries, the tendency will be to regard those parts that relate to the subject of the indictment or the accused as ‘investigation material’ that the accused has a right to inspect. By contrast, those parts of the diary that do not relate to the indictment will tend not be regarded as ‘investigation material.’ The defence will have the burden of showing that there is a real possibility that the material will be of benefit to the defence, and that this is not merely a speculative and remote hope.

As a rule, the High Court of Justice does not intervene in the interim decisions of the criminal courts. But the decision of the Magistrates Court was made ex parte, and the petitioner had no opportunity of making arguments supporting the complainant’s right to privacy. This was a serious procedural defect that justified the intervention of the High Court of Justice.

Petition granted in part.

Keywords

Administrative Law -- Discretion, Criminal Law -- Criminal Procedure

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