¹ 2 L.S.I. [N.V.] 198.

² See Kinsbraun (1953) 7 P.D. 261, 263Google Scholar; Bashari (1963) 17 P.D. 675, 680Google Scholar; Moor v. Estate of Bitz (1978) (I) 32 P.D. 654, 657. But cf. Beider v. Levi (1969) (I) 23 P.D. 594, 602.

³ The Bill with annotation appears in (1981) 34 HaPraklit 137Google Scholar.

⁴ See (1953) 8 HaPraklit 255Google Scholar.

⁵ E.g., the Law of Evidence Revision (Protection of Children) Law, 1955, (9 L.S.I. 102) based on sec. 93 of the 1952 Bill; the Law of Evidence Amendment (Warning of Witnesses and Abolition of the Oath) Law, 1980, based on secs. 19 and 20 of the said Bill; the Evidence Ordinance (Amendment) Law, 1955, regarding certificates by public servants, based on sec. 73; and the Law of Evidence (Amendment) Law, 1968, (22 L.S.I. 222), regarding the privilege attaching to the evidence of lawyers and physicians, influenced by sec. 97.

⁶ See the introduction to the Bill, op. cit., supra n. 3 at 138.

⁷ The article was by Conn J., written in 1962, and the case was Nagar (1981) (I) 35 P.D. 133, both cited in the introduction to the Bill.

⁸ These sections were toilsome and the Supreme Court has frequently urged the intervention of the legislature. A Bill of 1969 proposed replacing Ottoman law by new regulations, but in view of the criticism it encountered, it was not pursued. See Abramson, A., “The Confutation of Documents” (1970) 2 Mishpatim 120Google Scholar.

⁹ See 5 Wigmore, , Evidence, (Chadboum rev., 1974) 1367Google Scholar.

¹⁰ For instance, A.G. v. Judge Conducting Preliminary Investigation (1959) 13 P.D. 23; Avitan (1977) (II) 31 P.D. 527 and the sources there cited.

¹¹ For instance, Salton (1973) (II) 27 P.D. 346, 351.

¹² S.H. 1043, p. 43.

¹³ The Bill's explanatory notes state that sec. 15 (a) thereof re-enact sec. 174 and rule 183. This is not quite accurate and the variation should not have been over-looked.

¹⁴ For instance in applications by way of motion under rule 305 of the Civil Procedure Rules, 1963, and in matters of succession under rule 6 of the Rules of Procedure in Matters of Succession, 1965. Affidavits are also employed in such ancillary matters as replying to interrogatories and discovery of documents: see rules 120–21, 123, 128 of the Civil Procedure Rules.

¹⁵ Although we are not at all certain that this resolves the problem of red-tape and delay, as the authors of the Bill think. See explanatory notes to sec. 22.

¹⁶ L.S.I. (Special Volume), Penal Law, 1977.

¹⁷ Sec. 17 (a) of the Evidence Ordinance (in respect of deponents) and sec. 26 (a) (in respect of experts, physicians and public servants).

¹⁸ Apirion v. Cohen (1966) (III) 20 P.D. 628, 631.

¹⁹ (1974) (II) 28 P.D. 518. The case involved “an election appeal” to the District Court under secs. 72 and 73 of the Local Authorities (Elections) Law, 1965 (19 L.S.I. 261) which was dismissed. Under sec. 73 (a) the judgment of the District Court is final and no appeal lies against it either by leave or as of right. The petitioners, however, argued that the District Court judgment was null and void since they were not allowed to examine the deponents, contrary to sec. 17 of the Evidence Ordinance. The Supreme Court therefore dealt with this provision and did not address itself to the special procedural rules of High Court of Justice actions.

²⁰ See Harnon, E., The Law of Evidence: Part II (Jerusalem, 1977, in Hebrew) § 27.3Google Scholar.

²¹ (1981) (IV) 35 P.D. 640. The judgment was written by Kahan D.P., Barak and Shilo JJ. sat with him.

²² Ibid., at pp. 641–42. Emphasis added.

²³ The explanatory notes observe that “the Supreme Court has held that notwithstanding the use of the imperative, what is involved is the Court's ‘power’” i.e., the Court is not obliged to enable cross-examination. From what is said in the text, it is submitted that the authors were not precise about the existing definition of the law.

²⁴ Since the rule excluding hearsay does not issue from any statute but is a rule of case law received from England, sec. 53 should perhaps have opened with an express provision that a statement made by a person not in the course of trial is admissible evidence and then gone on to say what it does, that “where the court decides on the basis of a statement as aforesaid, it shall specify in its decision. …” Another possibility would have been to add to sec. 2: “everything likely to lead to proof shall be treated as admissible evidence, including statements by a person made not in the course of the trial.”

²⁵ See op. cit., supra n. 3 at 140.

²⁶ If this change is adopted, the pressure on appellate courts will increase on questions of fact, since in hearsay evidence the court of first instance does not possess the advantage of obtaining a first-hand, unmediated impression of the original witness under cross-examination.

²⁷ The Federal Rules of Evidence, 1975 contain two groups of exceptions to the rule excluding hearsay: first, all those in respect of which the question is not important whether the original maker of the statement can be brought to court to be examined; secondly, those where the inability of calling the maker of the statement is a precondition to the admissibility of the hearsay evidence. Each of these groups concludes with a residual exception under which any statement not falling within the preceding exceptions is admissible if like assurance exists of its credibility and a number of specified conditions are met. Thus the residual exception of the first group is in the following terms:

“(24) Other exceptions. — A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence, However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.” For an extensive discussion of these residual exceptions, see 4 Weinstein's, Evidence (New York, 1981) 803–4, 804–2Google Scholar.

²⁸ For a discussion of this matter, including the development that has occurred in Israel, see for instance, Harnon, op. cit., supra n. 20 at § 19.3.

²⁹ It is not clear from sec. 48 whether the right of appeal is available only to the parties or also to the witnesses themselves. All it says is that the decision is appealable. It is noteworthy that on a plea of privilege it is the witnesses rather than the parties who have a particular interest to persist in opposing the disclosure of the evidence by employing all possible processes. Sec. 146 of the Criminal Procedure Law (disqualification of judge) obviously refers only to the parties. It may be noted further that if appeal against a plea of privilege is made available, the question arises why only when the plea is rejected? A party may well be adversely affected by a decision admitting the plea and desire to appeal at once against it.

³⁰ Tacson (1970) (I) 26 P.D. 95, 98, 104.

³¹ In Yasin (1963) 17 P.D. 1541, 1556, Agranat P. said that “in arriving at a decision whether the circumstances compel us to conclude that the confession is not admissible, far be it for the court to pay heed to the contents” (emphasis added). By contrast, in Abu Midijam (1980) (IV) 34 P.D. 533, 534, although taking up this position, Landau J. was far less categorical, reverting to the view that he would not oppose the legislative abrogation of the little trial.

³² Cohn, J. in Baranes (1976) (III) 30 P.D. 507, 512Google Scholar. In Bar Ziv (1981) (II) 35 P.D. 576, 585–86 Barak J. observed that in his opinion the court should properly decide this in every instance according to its discretion; the question, however, was not directly decided and was left open for further consideration.

³³ For a further discussion of the little trial, see Harnon, op. cit., supra n. 20 at 280–81; 11th Report of the Criminal Law Revision Committee on Evidence (General), paras. 54, 61–65, Cmnd. 4991 (1972).

³⁴ This argument is obviously valid only on the assumption that the final provision of sec. 36 of the Bill is not accepted, as explained below in the text.

³⁵ As emerges from the decisions of the Supreme Court and the Sirota-Eitan Report of January 1980 on the use of force during interrogation and detention and the means of enquiring into complaints against the police. This Committee, nevertheless, did not propose that the conduct of enquiring into these complaints should be taken out of the hands of the police, but merely recommended the setting-up of a special unit in the office of the Attorney-General consisting of examining lawyers, to accompany the handling by the police of complaints. The police, however, do not seem willing to accept even this modest recommendation, which can only strengthen the case of those opposed to discarding the little trial.

³⁶ (1979) (III) 33 P.D. 376, 381.

³⁷ See supra n. 31 at pp. 539, 540.

³⁸ This all seems to be the view of the majority of the judges of the Supreme Court.

³⁹ Cmnd. 8092 (1881). This Commission dealt with the state of criminal procedure in England, over a period of about three years (1978–80). It took oral and written evidence and initiated twelve studies, including field work by psychologists who followed-up police interrogations. The final report based on all this material is 240 pages long: The Report of the Royal Commission on Criminal Procedure, HMSO, Cmnd. 8092 (Jan., 1981).

⁴⁰ Sec. 4.132 of the Report, ibid. at pp. 116–117 (Emphasis added).

⁴¹ See sec. 52 of the Bill and the accompanying explanatory note.

⁴² The Bill does not refer to this at all.

⁴³ See sec. 52 of the Bill and the accompanying explanatory note.

⁴⁴ See n. 43.

⁴⁵ See sec. 34 of the Bill.

⁴⁶ Evidence Ordinance (Amendment No. 4) Law, 1979; for full English text and commentary on this amendment, see “Digest: Recent Legislation and Cases” (1980) 15 Is.L.R. 559 at 570–576Google Scholar.

⁴⁷ See review of “Harnon, Law of Evidence, Part I,” in (1971) 3 Mishpatim 188, 189Google Scholar.