Case Number

CrimA 5121/98

Date Decided

5-4-2006

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should not be admissible in evidence, because it was made in consequence of the interrogator failing to advise him of his right to consult a lawyer. Under Israeli law there was no statutory or case law precedent for the exclusion of evidence because of the illegal method of obtaining it, but the appellant argued that the court should adopt such a doctrine, in the spirit of the Basic Law: Human Dignity and Liberty, which was enacted in 1992.

Held: (Majority opinion — Justice Beinisch, President Barak, Vice-President Emeritus Cheshin and Justices Rivlin, Procaccia, Levy, Naor and Joubran) In view of the normative change in the Israeli legal system introduced by the Basic Law: Human Dignity and Liberty, and in the absence of legislation on this issue, the time has come to adopt a case law doctrine of inadmissibility for illegally obtained evidence. The appropriate doctrine for the Israeli legal system to adopt is not an absolute doctrine, but a relative doctrine of inadmissibility, which allows the court to exclude illegally obtained evidence at its discretion.

The criterion for excluding illegally obtained evidence is that the evidence should be excluded if admitting it would substantially violate the right of the accused to a fair trial, considering the circumstances of each case on its merits. This doctrine is therefore a ‘preventative’ one, rather than a ‘remedial’ one. Its aim is to prevent a violation of the right of the accused to a fair trial, rather than to educate and deter the police authorities from future violations of the law.

Factors that should be taken into account when the court exercises its discretion are the character and seriousness of the illegality that was involved in obtaining the evidence, the seriousness of the offence, the degree to which the improper investigation method affected the evidence that was obtained and the social damage and social benefit involved in excluding the evidence.

The case law doctrine of the inadmissibility of illegally obtained evidence is a general one and it applies to all types of evidence, including defendants’ confessions, notwithstanding the statutory arrangement regarding defendants’ confessions in s. 12 of the Evidence Ordinance [New Version].

In the specific case of the appellant, the failure to inform him of his right to consult a lawyer was intentional, and this was a significant factor in reaching the decision to exclude the confessions he made in the interrogation.

(Minority opinion — Justice A. Grunis) It is questionable whether a broad doctrine of the inadmissibility of illegally obtained evidence should be adopted in case law rather than in legislation.

In the specific case of the appellant, in view of the fact that the police interrogator did advise the appellant of his right to remain silent, the failure to advise him of his right to consult a lawyer should not be sufficient to justify an exclusion of the confessions. The significance of the intentional nature of the failure to advise the appellant of his right to consult a lawyer was questionable, both because the doctrine being adopted does not have an educational-deterrent purpose, and because it is hard to conceive of such an omission by a professional interrogator being unintentional.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Criminal Law -- Criminal Procedure, Evidence -- Admissibility

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