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Last-Modified: 1999/06/11

Presiding Judge: We shall now read the grounds of Decision
No. 79 which was the Decision on the submission of the
Sassen Document.  These are the grounds of the Decision by
Judge Raveh and myself:

In Session No. 74 held on 12 June 1961, a ruling was given
on the application of the Attorney General to allow
submission of the "Sassen Document" as evidence for the
Prosecution.  The grounds of our Decision are as follows:

According to the explanation given by the Attorney General
and the expert opinion of Captain Hagag, which was accepted
as Prosecution exhibit T/1392, the Sassen Document consists
of some seven hundred photocopied sheets, purporting to be a
typewritten transcript of tape recordings made of
conversations held over a period of four months in 1957
between the Accused and a journalist called Sassen, as well
as eighty-three pages called File No. 17, which are
photocopies of notes made during the same period by the
Accused in his handwriting.  We have also been told that on
the transcript of the recordings there are a large number of
corrections and comments in the Accused's writing; but in
about one quarter of the transcript (some fifteen out of
sixty-two recording tapes) there are no such corrections or
comments at all.

Counsel for the Defence did not deny that File No. 17,
together with the corrections and comments referred to
above, were in the Accused's handwriting, but with reference
to the transcript one of his submissions was that this is
not an authentic, accurate transcript of what was recorded
from the Accused's mouth, but that Sassen changed the
Accused's words as he saw fit, in order to make the
transcript into better journalistic material, for
publication as a book co-authored by the Accused and Sassen.

We are not convinced that the Sassen Document in its
entirety is admissible for the purpose for which the
Attorney General wished to submit it, that is to say as a
statement made by the Accused outside the Court, except for
those parts written by the Accused in his own handwriting
and those sections of the transcript which are necessary for
understanding of those same parts, as stated in our grounds
of Decision No. 79.

Those parts which are not in the Accused's handwriting are,
as stated above, a photocopy of a typewritten document
purporting to be a transcript of tape-recordings.  On the
nature of such recordings and transcripts the following was
said in Criminal Appeal 11/58 (12 Piskei Din 1905, on pp.

     "In fact, the recordings replace testimony about the
     contents of a witness' statement, made by the person
     who heard the statement being made.  Consequently, the
     recording is not evidence in itself, but must be
     submitted through a witness who can give testimony and
     attest to having heard the words coming from the mouth
     of the person making the statement.  Such testimony is
     to be considered as primary evidence, while the
     recording in this sense is similar to a photograph
     submitted by a witness, in lieu of a verbal description
     of a pictorial rendering in Court of what appears in
     the photograph.  As for the record by way of transcript
     made from what is to be heard in the tape recording,
     this is simply an aid to allow the Court to follow the
     recording and subsequently consider its contents (see
     the article by D.W. Elliott: Mechanical Aids to
     Evidence (1958), Criminal Law Review 5)."
(See also Criminal Appeal 28/59 13 Piskei Din 1205, 1209).

It follows from the above that the transcript in itself does
not have any value as a document, and even less as a
document the contents of which are binding on the Accused.
The primary evidence which the Prosecution should have
submitted is the testimony of Sassen who, according to the
argument of the Attorney General, heard these words being
uttered by the Accused, and who had them recorded in the
transcript.  A second witness could have been a man called
Fritsch, who according to Counsel for the Defence was also
present when the conversations between Sassen and the
Accused were tape-recorded.  The Attorney General did not
ask us to hear either of these two as witness for the
Prosecution, but requested that the document in question be
submitted on its own merits, without any further testimony.

In the arguments before us reference was made to Section
37(2) of the Criminal Procedure (Trial upon Information)
Ordinance.  There is a judgment by the Supreme Court in the
Mandate period (Criminal Appeal 26/44, 11 Palestine Law
Reports 87), according to which it would appear that this
section was applied to written statements (a complaint to
the police) made by the accused some four years or so before
the crime with which he was subsequently charged.  If this
supposition is correct, Section 37(2) would also apply to
the statement under discussion, so that in any case there
would be a formal objection to the submission of the
transcript without Sassen's testimony.  However, we did not
consider it necessary to go into the question of the correct
interpretation of Section 37(2), and our opinion on the
admissibility of the transcript as such as a statement by
the Accused is not based on this section, but on
considerations on the substance of the matter.

In his arguments the Attorney General also presented
alternative grounds for admitting the transcript as
evidence, as follows:

(1) According to its contents: The Attorney General argues
that there are many passages in the transcript which both in
content and in style are identical to what the Accused said
in his Statement to the Police (exhibit T/37).  In this
respect the Attorney General is obviously not interested in
proving the passages which are identical in the transcript,
with those in exhibit T/37; rather, his aim is to prove by
means of such identity of content and style other passages
in the transcript in respect of which there is no such
identity.  It is our opinion that it is not possible to use
such internal comparisons of contents and style, in order to
justify the admission of the entire document as the
Accused's document.  We found no grounds for doing so in the
quotations cited by the Attorney General from Wigmore and
Phipson in support for this argument.

(2) According to the corrections and comments made on the
transcript in the Accused's handwriting: The Attorney
General argues that in so doing the Accused "adopted" as his
own the contents of the entire document.  The connection
between those parts of the transcript on which there are no
such corrections and comments and those parts where
corrections and comments appear, he asks to establish by
means of evidence (Captain Hagag's expert opinion) to the
effect that the entire transcript, except for one page, was
typed on the same two typewriters.

In reply, the Defence argued that although the Accused began
making corrections to the transcript, it very quickly became
clear to him that the document was not a faithful record of
what he had said.  Whereupon he protested to Sassen, and
they then drew up a written agreement specifying the
conditions for their future co-operation.  In any case, the
Accused did not correct everything which needed correcting.
To which the Attorney General replies that if the Accused
claims that the corrections are not complete, then he should
point out in his testimony which passages in the transcript
are not a faithful record of what he said.

When discussing the admissibility of the transcript, it is
not up to the Court to decide on the parties' versions with
regard to the accuracy of the transcript as a record of what
the Accused said.  The question at issue was merely whether
the comments and corrections which the Accused made to the
transcript turn it prima facie into a document which in its
entirety reproduces what the Accused said, in such a way
that the Accused is then obliged to explain whether, and to
what extent, that is not so.

It was our view that there are not sufficient grounds for
admitting the transcript even in this fashion.  If the
Accused had signed the pages of the transcript, or even
signed it only at the end, in confirmation of its
authenticity, then he would obviously have adopted it and
turned it into his own statement.  However, in the absence
of a signature, the comments and corrections could only have
made the entire transcript into an admissible document in
one of the following instances:

     (i)if the comments and corrections would prove prima
     facie that the entire transcript represents what the
     Accused said, or
     (ii)if the comments and corrections would change the
     original nature of the document - i.e., a transcript of
     a tape recording - and turn the whole document into a
     statement by the Accused.

It is not necessary to waste many words in order to justify
the conclusion that neither case applies here, in view of
the following facts:

     (1)there are no comments and corrections on about one
     quarter of the tapes;
     (2)five spools seem to be missing from the transcript,
     (3)the Accused numbered more than two hundred comments
     and corrections - and this is agreed between the
     Attorney General and the Defence - which do not appear
     in the transcript, and only a quarter of which are
     preserved in File No. 17, and the rest has not been

It is our opinion that the comments and corrections included
in the transcript are not such as to change into an
admissible document those parts of the tapes where
corrections appear, nor parts of the corrected tapes -
neither into a transcript of a partially authenticated
recording, nor into a written authenticated statement by the

Apart from the transcript itself, we know nothing about the
circumstances in which the corrections and comments were
made.  The Prosecution should have brought evidence about
those circumstances.  Since it did not propose doing so, the
burden of proof should not be shifted to the Accused; in
other words, the question is not one of the weight to be
attached to the transcript, as argued by the Attorney
General, but of the actual admissibility of the document as
a record of the Accused's words, whether oral or written.

The mere fact that someone makes comments and corrections to
a transcript is not unambiguous, and does not require any
prima facie conclusion that that person has adopted either
the whole transcript or parts of it as a faithful record of
what he said or wrote.  Such an unambiguous conclusion would
only be justified, even prima facie, if the circumstances
under which the comments and corrections were made had been
clarified to us.

Moreover - and here we differ from the opinion of our
colleague, Judge Halevi: - we do not see any basic
difference between whole tapes without corrections and parts
of tapes without corrections, since we cannot define a
yardstick for determining the precise quantity of
corrections required to turn an inadmissible document into
an admissible written or oral deposition.

As far as there are various possible ways of considering the
matter, we preferred a more stringent approach, since we are
dealing with a document which the Prosecution wishes to have
considered as a statement by the Accused made outside the
Court, i.e., incriminating evidence purporting to come from
the Accused himself, and therefore special care must be
taken to have it sufficiently verified as a record of what
he actually said or wrote.

With regard to File No. 17 and its entire contents, we
treated this as a document written by the Accused.  There is
no dispute that the entire contents of this file contains a
correct photograph of what the Accused wrote in his own
handwriting, and since this file, including all the papers
in it, can stand on its own, it is not, prima facie, subject
to the same ambiguity referred to above with regard to the
comments and corrections made to the transcript, so that
there is no need to clarify the circumstances under which
the contents of File No. 17 were written down.

Therefore we have decided to admit File No. 17 in its
entirety, and accordingly it is clear that those passages
from the transcript which are numbered, and without which
the comments bearing the same numbers are not intelligible,
must be admitted together with it.

Judge Halevi:  Unfortunately, I must differ from my
honourable colleagues' opinion on this important question.
In my opinion, the Court should have admitted not only the
additional comments to the transcript of the recording made
in the Accused's handwriting, to the submission of which the
learned Counsel for the Defence did not object (i.e.,
exhibit  T/1393, File 17), but also the transcript of the
recording itself, insofar as it has prima facie been
verified (as I shall show further on) by means of
corrections and comments made in the Accused's handwriting.

The significance of this matter is that it provided the
Court with a unique opportunity (unless the Attorney General
will succeed in verifying the document, in its entirety or
in part, in cross-examination of the Accused, who has
meanwhile elected to testify under oath) to glance into the
world of the Accused, and to become acquainted with his
version and explanations of the events under discussion, as
presented by him in detail when he was a free man in
Argentina, to his journalist friend Sassen, partly as
material to be made into a book, and partly "off the
record," or not for publication in his lifetime.  Naturally,
at this stage no views should be expressed as to the degree
of credibility of the "Argentinian"  version, which should
have been minutely scrutinized and weighed in the light of
all the other evidence.  However, it may be stated with
assurance that widening the ambit of the evidence in this
Court, by including the Accused's previous version and his
explanations which were made outside the framework of any
legal proceedings against him, would in itself have been
likely to be useful in elucidating the truth.

The grounds for my decision on the admissibility of parts of
the transcript in question (47 out of 62 tapes of the
recording) are as follows:

The transcript submitted by the Attorney General claims to
be a transcript of 62 recording tapes and falls naturally
into 62 transcripts (separate parts of the transcript), each
of which is numbered according to the tape it was
transcribed from.  Forty-seven of these transcripts of tapes
bear corrections and comments in the Accused's handwriting,
in addition to being related by means of a special
referencing system to additional comments by the Accused
which are part of exhibit T/1393 (i.e., File 17, referred to
above) which is entirely in the Accused's handwriting.  It
is my opinion that the above corrections, comments and
additions made in the Accused's own hand provide a direct
link between the Accused and the 47 transcripts referred to,
thus making these into documents of the Accused which may be
submitted in evidence against him, and which it is up to him
to explain.

The fact that the Accused and Sassen held a series of
conversations in Argentina, which were recorded and dealt
with the Accused's activities during the Nazi period, is not
in dispute.  This fact was acknowledged by the Accused in
his comments on the publications in Life (T/47-51), and he
also referred to "a typed transcript of a recording" (eine
maschinenschriftlich wiedergegebene Tonbandtranskription -
T/48, page 7).

The question to be decided at this stage is whether the
typescript in the possession of the Attorney General is a
prima facie authentic record of what the Accused said in
these recorded conversations.  Since the entire substance
and form of the said transcript (of which we have had a
general description) clearly show it as purporting to be a
word-for-word transcript of a recorded conversation between
the Accused and Sassen, with indication of the consecutive
numbers of each of the recording tapes, the Accused, when
adding the above corrections and comments to the 47
transcripts in question, clearly realized that the material
he was proofreading and commenting on was no ordinary
document, but a document purporting to be a word-for-word
transcript of his own words, as recorded.  Under these
circumstances it would appear obvious that when the Accused
proofread this particular document and added various
comments to what are alleged to be his recorded words, he
was treating the material which he was correcting and
annotating as a true rendering of his recorded words, and by
this behaviour of his he thus impliedly confirmed the
authenticity of the record.  Therefore, it is my opinion
that the learned Attorney General is right in applying to
the 47 aforementioned transcripts the judicial precedents as
to "adoption of his statements" (or, more accurately and
more pertinently, "confirmation of his statements" by the
Accused. See Phipson, On Evidence, 9th edition, page 295:

     "Documents which are, or have been in the possession of
     a party will...generally be admissible against him as
     original (circumstantial) evidence to show his
     knowledge of their contents, his connection with, or
     complicity in, the transactions to which they relate,
     or his state of mind with reference thereto.  They will
     further be receivable against him as admissions (i.e.,
     exceptions to the hearsay rule) to prove the truth of
     their contents if he has in any way recognized, adopted
     or acted upon them."

See also Wigmore on Evidence, Volume 4, paragraph 1073, pp.
90-92, 97.

This legal proposition cannot apply to the 15 transcripts
from the tapes to which no comments or corrections have been
made in the Accused's handwriting.  For authentication of
these 15 transcripts, the learned Attorney General bases
himself on the identity of the typewriter used with that
used for the rest of the typed material, as well as on the
stylistic similarity between the Accused's language in these
transcripts and the style in his statements to the police
(T/37).  I do not consider this to be a sufficient base for
authenticating these transcripts, and in the absence of
confirmation by the Accused, or by another witness, they
cannot be admitted as evidence against the Accused.

As for the 47 transcripts which are prima facie
authenticated by the Accused's corrections and comments,
none of the arguments of the learned Counsel for the Defence
concern the admissibility of these documents, but only to
the weight to be attached to them.  The argument as to
incompleteness (the fact that apparently five further tapes
and some 150 additional comments by the Accused are
missing), is no argument against the admissibility of the
available material, but only against the weight to be
attached to it.

The Attorney General's inability to submit to the Court the
transcripts of all the recorded conversations between the
Accused and Sassen, does not invalidate the transcripts of
those conversations which he is in a position to submit.
His inability to find all two hundred comments which the
Accused made on the transcripts, or which the Accused
intended to make, does not invalidate either the transcript
or the fifty comments in File 17.  It should be noted that
these comments by the Accused are in the nature of further
admissions, and do not as a rule refute the correctness of
the record.  Whether the Accused adds to the substance of
what he was recorded as saying, or whether he detracts from
or qualifies, or goes back on his words as recorded - still,
what the Accused said at first were also his words, and no
additional comments can affect their admissibility, but only
the weight to be attached to them.

The argument that Sassen faked or distorted the recorded
conversations seems prima facie to be contradicted by the
behaviour of the Accused in correcting the transcripts of
the 47 tapes and in making substantive comments on them;
under these circumstances, the burden of proving this
allegation is on the Accused.  The argument as to the
written agreement with Sassen to the effect that nothing
should be published that had not been confirmed by the
Accused's signature would appear prima facie to apply to
publication only, and does not negate the fact that the
statements were made; it stands to reason that the Accused
wished to reserve to himself the right of deciding on the
extent of publication, as well as on the final version in
which his words would be published, but for the purposes of
a criminal trial any utterance by the Accused, insofar as it
is relevant to the matter under discussion, is admissible as

The argument that the Accused did not manage to correct all
of the typed material applies mainly to the 15 transcripts
which bear no corrections or comments in the Accused's
handwriting and which have consequently not been admitted as
being authenticated.  The rule of "errors and omissions
excepted" applies prima facie to the 47 transcripts
corrected by the Accused, who is entitled to draw attention
in his testimony to any error or mistake in the recording of
his words and to make corrections accordingly.

As to the Attorney General's application to admit the
transcript in question on the basis of the identification of
the Accused's handwriting only - which the learned Counsel
for the Defence did not deny - the question has arisen as to
whether the Attorney General should call Sassen as a
Prosecution witness, since, according to the learned Counsel
for the Defence, Sassen's evidence is "the best evidence"
for proving what the Accused said, or whether the Attorney
General, as he argues, can leave it to Counsel for the
Defence to call Sassen (or any other witness who was present
during the conversations) as a witness for the Defence, if
he so wishes.

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