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On May 28, 1967, one Solomon Hamatprest voluntarily presented himself before the military authority, after having failed for a number of years to report for registration and medical examination as required by a notice published under the Defence Service Law, 1959 (hereafter called the Law). Omission to fulfil a duty imposed by this law constitutes an offence punishable by two years imprisonment under section 5(a) (1) of the law; and where such offence is committed “with intent to evade defence service”, the maximum penalty is increased by section 35(b) (1) to five years prison.
Before the Six Day War those who shirked defence service had consistently been charged with the lesser offence. But in the wake of the War this offence had been covered by an Amnesty Law; and that was probably why Hamatprest, among others, had been committed for trial under the alternative graver offence, involving “intent to evade defence service”, which had been explicitly excluded from the amnesty.
1 Hamatprest v. A.C. (1968) (I) 22 P.D. 3.
2 Hamatprest v. A.G. (1968) (II) 22 P.D. 536.
3 One can “despair both of the solution and of the morality thereof” (per Cohn J. in Further Hearing, at p. 546).
4 It may be mentioned that “knowledge” as a philosophical notion assumes representation of a state of things which is coincident with objective truth, whilst in the context of the “knowledge” rule, it is foresight, approaching high probability, concerning consequences of a conduct.
5 Kahanovitz v. A.G. (1949) 2 P.D. 890; Ajami, Shalom and others v. A.G. (1959) 13 P.D. 421; A.G. v. Grunwald (1958) 32 P.E. 3; A.B. v. A.G. (1960) 14 P.D. 310; Prof. Kurt Sita v. A.G. (1961) 15 P.D. 1373; A.B. v. A.G. (1962) 16 P.D. 2397; A.B. v. A.G. (1962) 16 P.D. 2305; Luck v. A.G. (1966) (II) 20 P.D. 590.
6 Kahanovitz v. A.G. (1949) 2 P.D. 890, 894–5.
7 Ajami, Shalom and others v. A.G. (1959) 13 P.D. 421, 432.
8 A.B. v. A.G. (1960) 14 P.D. 310.
9 (1959) 13 P.D. 421, 432.
10 (1958) 32 P.E. 3, 60–61.
11 At p. 9.
12 A.B. v. A.G. (1960) 14 P.D. 310, 312.
13 Criminal Appeal, at p. 9: emphasis in original.
14 Ibid. The emphasis is that of the author.
15 Ibid. at p. 10.
16 Ibid. at p. 8–9.
17 Further Hearing, at p. 551.
18 Criminal Appeal, at p. 7.
19 Further Hearing, at p. 550.
20 “The accused need not actually desire such injury. In the vast majority of espionage cases, spies have acted out of a desire to gain some financial or other benefit.” (Sita v. A.G. (1961) 15 P.D. 1373, 1378).
21 For the moment, the problem, which can be considered subsidiary, of whether constructive knowledge serves as a substitute for intention, will be ignored. At this stage, discussion will be confined to actual knowledge.
22 A typical example in this regard is attempt to commit an offence, which requires actual intention but is characterised by the very absence of circumstances or consequences which might lead to the completion of the offence.
23 Since, if there is a desire to bring about the forbidden act, then the person concerned acts with “intention”, and no construction is required.
24 This is actually no more than a logical step towards comparing dolus indirectus with dolus directas.
25 (1961) 15 P.D. 555.
26 Ibid. at p. 557.
27 Despite the inherent contradiction in the idea of the commission of an intentional offence through constructive knowledge of the relevant circumstances of the offence, it may be said that had the legislator intended to apply the presumption of section 44 (d) of the Defence Service Law to the offence under section 35 (b) (1) as well, this would not have actually been such a serious departure from principle as has been suggested. In other words, anyone agreeing with the view of the Deputy President can maintain that in effect the legislator has created an exemption from the obligation to prove knowledge of the fact that an order to report has been issued, in those cases where it is impossible not to be aware of such an order. People do not live in a vacuum, and with regard to military duties in this country, there is not a single young person who does not expect the publication of an order requiring him to report, nor is there a reservist who is not aware of such duties. If the national consciousness of a person liable to service is not a factor, then at any rate the security conditions of the State and the actual participation of all members of the public in defence service draws his attention to the situation whether he likes it or not. After all, what is the most effective way of informing a person of his duty to report? Would personal service of the notice suffice? Even then, there would be those who would claim that the notice did not reach them or was not delivered to the right person, or that the addressee was away from home at the time the notice should have reached him. There also use would have to be made of presumptions under which, if the notice had been delivered to some relative, neighbour or janitor, or if it had been affixed to certains places, it would be taken to have been duly brought to the notice of the addressee. In this matter, the various procedural rules regarding service of documents are enlightening. They lay down a number of presumptions, entailing significant legal consequences. This being the position, is it not preferable to have a system whereby an order is published relating to whole categories of persons liable to service, according to various criteria, where general awareness of the order is of itself an additional factor contributing to individual awareness?
It is difficult to appreciate the absolute “condemnation” of the rule laid down in section 44(d) of the Defence Service Law. After all, what more effective step can be taken? Should everyone be allowed to plead ignorance where it is obviously impossible to be ignorant? No system of serving notices of the kind described would be practicable without formal recourse to presumptions. In such instances a plea of ignorance cannot be supported; on the contrary, such a plea might show not only that the person concerned actually knew, but even that he had the intention to evade the duty to which such knowledge relates. In other words, the presumption in this case is by no means a fiction; its function is merely to remove from the area of dispute a fact reasonably inferred from the very publication of the order. Thus the view of the Deputy President, under which the rule in section 44(d) of the Defence Service Law may also be applied to the offence of failure to report with intention of evading defence service, is not entirely unjustified.
28 According to the view of the Deputy President, presumed knowledge is also sufficient, a fortiori actual knowledge; but this does not prevent discussion being confined to the case of actual knowledge.
29 Further Hearing, at p. 546.
30 Ibid., at p. 568.
31 Ibid., at pp. 547–8.
32 Obviously, reference to “knowledge” includes reference to “shutting one's eyes”.
33 (1968) (II) 22 P.D. 147, 149.
34 Criminal Appeal, at p. 9.
35 Intention may be specific not only because of a particular purpose; for example, “premeditation” is “specific” by the mental process of its formation. In this article, however, the expression “specific intent” refers only to intention characterised by achievement of a particular purpose, in the absence of any clarification in this regard.
38 Other examples of offences of this kind include forgery of documents with intent to obtain some property, under section 5 of the Penal Law Revision (Offences of Fraud, Extortion and Oppression) Law, 1963; assault with intent to commit a felony under section 251(a) of the Criminal Code Ordinance, 1936; housebreaking, under section 295, Ibid., abducting a child with intent to steal from its person, under section 260, Ibid.
37 See to the same effect, Bein, D., “Knowledge Which Reached a High Degree of Probability” (1967) 2 Is.L.R. 18.Google Scholar
38 Criminal Appeal, at pp. 9–10.
39 See n. 4 and Yakobovitz v. A.G. (1952) 6 P.D. 514, 545–6.
40 This sequence is imposed by simple logic: for the “knowledge” rule to apply, nothing more than knowledge is required, whereas in order to make use of the presumption of “intention”, knowledge is not always sufficient. Although the perpetrator is aware of the consequences of his act, the judge may take the view that he had no intention of bringing them about.
41 As to the nature of the presumption of “intention”, see below.
42 See, Further Hearing, at p. 546, for the distinction between the state of mind of “shutting one's eyes” and the concept of “constructive knowledge”.
43 (1954) 15 P.E. 1373, 1379.
44 (1962) 16 P.D. 2397, 2406.
45 (1966) (II) 20 P.D. 590, 592.
46 Further Hearing, at p. 546.
47 Abu Rav'ia v. A.G. (1963) 17 P.D. 2913, 2935–6.
48 Further Hearing, at p. 546, per Agranat P. “the state of mind of ‘Shutting one's eyes’ is in law equivalent to actual knowledge”, but not to intention.
49 See section 216 to the C.C.O., 1936, which defines the notion of “premeditation”
50 See Further Hearing, judgment of the President, at p. 544; Criminal Appeal, judgment of the Deputy President, at p. 10.
51 In the opinion of the Deputy President, in Criminal Appeal, at p. 10.
52 Such as offences against the security of the State with intent to injure the security of the State, or the offence of trespass with intent to annoy a person in possession of property.
53 See Williams, Glanville, Criminal Law (2nd ed.) pp. 38–44Google Scholar: “There is one situation where a consequence is deemed to be intended though it is not desired. This is where it is foreseen as substantially certain.” (p. 38); Smith, and Hogan, , Criminal Law (1965) pp. 35–36Google Scholar, “A man intends a consequence of his act when he foresees that it may result and desires that it should do so or foresees that it is substantially certain to result.” (p. 35); Perkins, , Criminal Law (1957) pp. 657–658Google Scholar, “Intent includes consequences which (a) represent the very purpose for which an act is done (regardless of likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)”; Silving, Helen, Constituent Elements of Crime (1967) p. 224Google Scholar, “Thus, ‘intent’ means decision to act in knowledge that as a practical certainty all statutory attending circumstances are present and the statutory consequences will occur as a result of the defendant's conduct”; The A.L.J. Model Penal Code [Comment to Section 2.02, Tentative Draft No. 4, (1955) pp. 123–132]; “regarding the distinction between acting purposely and acting knowingly” it is stated: “The distinction is no doubt inconsequential for most purposes of liability; acting knowingly is ordinarily sufficient”, (p. 125); The German Draft Penal Code (1962), para. 16. “Intention. Anybody who seeks to effectuate the definitional elements of the act, or who knows or takes it for granted that he will effectuate them, or who considers such effectuation possible and does not mind it, acts intentionally”; Code Pénal de l'Empire d'Ethiopie (1957) art. 58, “l'intention délictuelle est réalisée aussi lorsque l'auteur, sachant ou se rendant compte que son acte peut entraîner des conséquences illicites et punissables, l'accomplit néanmoins en acceptant celles-ci pour l'éventualité où elles se produiraient”.
54 As is appropriate in every instance of an offence of intention consisting in the aim to achieve the natural consequences of the conduct constituting the offence.
55 This conclusion is based on the judgments of the President and Landau J., interpreted as above, combined with the judgment of the Deputy President who took the view that the sub-section also applies to constructive knowledge, and a fortiori to actual knowledge.
56 This conclusion is based on the judgments of the President and of Landau J., combined with the judgment of Cohn J. who does not deny that the presumption in section 44(d) applies to an offence under section 35(a)(1). On the other hand, the Deputy President held firm to his view that “section 35 (a) (1) combined with section 44(d), together, comprise the offence laid down in section 35(b)(1) of the Law. As to the intricate question which I mentioned in my previous judgment, namely, if so, why did the legislator not entirely omit section 35(a)(1), my reply is because nonfulfilment of the duty mentioned in section 35(a)(1) can apply to the duties specified in sections 3 (e) or 33 [of the Law] or in section 2 of the Schedule to the Law.” (Further Hearing at p. 551 and Criminal Appeal at p. 10).
57 Criminal Appeal, at p. 8.
58 Ibid., at p. 9.
59 (1952) 6 P.D. 514, 545–6.
60 (1962) 16 P.D. 2397, 2402.
61 Ibid.
62 Ibid., at p. 2406.
63 In Shabbat v. A.G. (1967) (I) 21 P.D. 197, the President said: “the presumption that the accused intended the natural consequence of his act (and therefore foresaw such consequence when committing the act) is not a presumption of law which cannot be assailed, but is merely an evidentiary presumption, which the prosecution can indeed rely on in the absence of reliable evidence to the contrary, but which cannot be taken into consideration if from the evidence as a whole the intention of the accused is so ambiguous that there is reasonable doubt whether, when committing the act, he actually intended the said consequence or foresaw it” (pp. 209–210).
