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Colonial Cases

Attorney General v. Orphali, 1929-1930

[murder - appeal]

Attorney General v. Orphali

Court of Appeal, Palestine
1929-1930
Source: The Palestine Bulletin, 21 November 1929

 

JEW SENTENCED TO DEATH FOR MURDER.

   Joseph Orphali, of Jaffa, charged with shooting at and murdering two Arabs during the disturbances, was yesterday found guilty and sentenced to death.  He has also to pay L.P. 250 to members of the family of the murdered men.  The case will come before the Court of Appeal for its decision.

   This is the first instance in which a Jew has been found guilty of murder in connection with the riots.  A Sephardi Jew of Jaffa was, it will be remembered, charged with murder, but was found not guilty and acquitted.

 

The Palestine Bulletin, 26 January 1930

URPHALI VERDICT SET ASIDE.

Court of Appeal Orders Retrial.

... The appellant had asked for an opportunity to present fresh evidence which was not available at the trial.  The judgment of the Court of Appeal was that the accused should be given the opportunity to present fresh evidence.  The judgment of the Criminal Court of Assize was set aside.

...

THE JUDGMENT.

   The President of the Court of Appeal said that considerable care had been taken to consider the evidence given by eye-witnesses to the Lower Court along with their previous statements to the examining Magistrate.  It was argued that from the position where three of the four eye-witnesses were the things they described could not be seen.  While fully alive to the impossibility of reconciling these differences they held that this question was to be decided by the Court of Trial.

   It has also been argued that at that time the police were near the house of the accused, and it was impossible for the accused to have shot.  This has been supported by the details of the evidence.  There is one fact we are bound to deal with.  It is that the Prosecution there was evidence of eye-witnesses that Mohammed Tartar was short while running by the house of the accused.  The description given by the eye-witnesses and that given by the examining doctor of how the deceased was shot differs.  It is quite impossibly that the wound inflicted should have been aimed at such a range.

Case Remitted.

   If the evidenced of the eye-witnesses were rejected, it would have great bearing on the truth of the case.  The defence say they are in possession of fresh evidence.  In view of the difficulties in this case, we hold that opportunity should be given for the Court to hear new evidence.  The judgment is set aside.  The case will be remitted to hear fresh evidence.

 

The Palestine Bulletin, 3 April 1930

REHEARING OF ORPHALI CASE.

   Orphali was condemned to death for the murder of Arabs during the riots.  He wad found guilty by the court in Jaffa but on appeal the case was sent back for retrial.  The retrial opened yesterday and it is expected that the decision will be given to-day.

The Palestine Bulletin, 4 April 1930

URPHALI SENTENCE TO DEATH.

Swears To Innocence.

   Yesterday the Chief Justice delivered judgment in the Urpahli case, again sentencing the man to death.  The Judgment refers to the evidence of two Non-Commissioner Air Force Officers, Flight Sgt. Hollis and Corp. Weeks., who have both testified that they heard no other firing whilst they were with Mr. Riggs' party near the Urphali house but that of the Arabs at Mr. Riggs' party and that of Mr. Riggs' party at the Arabs.  The Court, however, is not satisfied that this excludes the possibility of Urphali, at the same time, firing at the Arabs.

   The judgment then deals with the evidence of an Arab witness who came forward to give evidence in favour of Urpahli, which again, the Court did not find conclusive; and with the evidence of two other Arab witnesses, who have retracted from the evidence given by them on affidavit before the magistrate, in favour of the accused man, and observes that another Court will deal with the question as to who tampered with these witnesses, (one of the witnesses had stated in Court that the relatives of the Arabs killer had influenced him to change his mind).

   The judgment then reiterates that the Court believed the Arab witnesses who gave evidence against Urphali at the first trial as regards the difficulty pointed out by the Court of Appeal that these eye witnesses stated that one of the Arabs was shot by Urphali from behind, while the medical evidence was that he was shot from the front, the judgment says that the Arab might have turned on his heels just before he was shot.

   The accused is found guilty of having fired at two Arabs, but since it was during an attack by Arabs, the firing at the first man would be unpremeditated murder, whilst the firing at the second would be premeditated murder.

 

... when asked by the Chief Justice whether he has any thing to say why sentence should not be passed on him, Urphali raised his hands and swore by God and the Holy Bible that he is innocent.  The Chief Justice then solemnly pronounced the death sentence, amidst a hushed Court room, and when the Court walked out in procession, the air was rent by the hysterical weeping of Mrs. Orphali, who is facing, for the second time, a death sentence on her husband.

   The case will now again appear before the Court of Appeal. ...

The Palestine Bulletin, 27 April 1930

URPHALI SENTENCE CONFIRMED.

First Jew Condemned To Death.

   The death sentence against Yusef Mizrachi Urphali, who was charged with the murder of two Arabs during the riots and whose case has been twice heard and twice appealed, was finally confirmed by the High Court on Friday April 24.  Orphali is the first Jew to be condemned to death as a result of the riots.  The court was packed with people awaiting the final judgment, and when at 4:30 death sentence was confirmed the heart-rending cry of the condemned man's wife rent the air.

   Mr. Justice Corrie in delivering sentence said: The Court sees no ground for setting aside the judgment of the Criminal Assize.  The appeal is therefore dismissed.

   Dr. Eliash asked that a rider be added to the judgment of the High Court concerning the gravy suspicion as to the truth of the evidence of the witnesses.

   Mr. Justice Corrie said: The whole judgment will be sent to the High Commissioner and will be put before His Excellency.

   Dr. Eliash again asked for a detailed judgment and for the rider.

   The Court said that it would consider the matter.  Concerning the suspicion of the witnesses the Court said it could not give any assurance that it would advise His Excellency.

   Before judgment was given Dr Eliash pleaded with the Court for the prisoner.  Mr. Sherwell followed hum for the prosecution, and then Dr. Eliash made a last plea.

   Dr. Eliash in opening the case stated the various stages of the case and the difficulties which were found by the Court of Appeal in remitting the case to be heard for fresh evidence.  Dr. Eliash said that the Prosecution had been unable to present a satisfactory explanation of the matters under which the alleged killing took place.  The Prosecution did not show how the medical evidence could be reconciled with that of the eye-witnesses.  The lower Court assisted this Court by saying what was its opinion concerning the wound of the deceased.  They said that he may have turned round while being shot.  The Court was not entitled to assume w reasonable change of posture to justify its findings.  None of the eye-witnesses ever suggested such a thing, and it was not suggested at all to any of the witnesses that the deceased turned while he was shot.

   The Court in its judgment said that it considers it impossible that these men should have met death in any other way.  "I say that the wounds must have been the result of firing from persons on horseback and not from the verandah of the house of the accused.  This was not supported by evidence.  Taking the evidence of the military eye-witnesses the accused could not have shot as suggested by the eye-witnesses because the Police were near the house until evening."

   Mr. Eliash then referred to evidence by a Moslem policeman which was not heard by the lower Court.

   "My submission is that the same difficulty still exists as it did when the case was remitted form further evidence by the honourable Court.  I ask that the judgment be quashed and the accused acquitted.

   Dr. Eliash spoke for about three hours.

   Mr. Sherwell said that there was evidence for the findings of the lower Court.  This country is not a normal country and the Court has always to base its findings on evidence which is contradictory.  To say that the Court is not entitled to say that the deceased turned round is ridiculous.  Mr. Sherwell said that the order of the appeal was right to hear the evidence and it was right in rejecting new evidence of a Policeman.

   Mr. Sherwell said that the firing of the accused as found by the Court must have been simultaneous with the firing of the police.

   After this Dr. Eliash replied to Mr. Sherwell and the Court's judgment was given in the afternoon.

 

The Palestine Bulletin, 28 Junky 1930

NO APPEAL FOR URPHALI TO PRIVY COUNCIL  .

   We learn that the Privy Council in London has refused to hear the appeal against sentence of death passed on the Persian Jew, Urphali, who was found guilty of muter during the riots.

   Urphali was originally found guilty and his case was sent back for re-hearing by the Court of Appeal.  He was a second time found guilty and his second appeal was dismissed.

   When H.E. the High Commissioner commuted the death sentence to terms of penal servitude for life, Orphali was excepted because his appeal to the Privy Council was then under consideration.

   Only one other Jew, P.C. Hinkis, was found guilty of murder (by the Court of Appeal - murder without premeditation) as a result of the riots and he is serving sentence of 15 years' imprisonment.

   It is very unusual for the Privy Council to hear appeals in cases of murder, although very recently in the case of Dr. Knowles they heard the appeal and upheld the sentence.

   Abcarius Bey also appealed unsuccessfully to the Privy Council for the Arab murderers.

 

The Palestine Bulletin, 1 June 1930

...

   With regard to the Jew, Orphali, who was sentenced to death for murder at Jaffa and whose sentence was confirmed by the Court of Appeal, it is officially announced that he is making application for leave to appeal to the Privy Council.

 

The Palestine Bulletin, 1 June 1930

"Deliverance."

   The High Commissioner has been moved to exercise his prerogative and commute to life imprisonment the death sentences of 22 of the 25 Arabs condemned for murders committed on Jews during the attack last August. ...There still remain several Arabs whose appeals have not been confirmed by the Court of Appeal, and paradoxically though, there is still the case of Orphali, who because he is making application for special leave to appeal to the Privy Council, is apparently not included in the commutation order. ...

 

The Palestine Bulletin, 17 June 1930

ORPHALI TO BE RELIEVED OF CHAINS.

   The Government has informed Orphali's Counsel that it intends to remove the prisoner's irons and to allow him to share a cell with other Jewish prisoners, as soon as convenient.

 

The Palestine Bulletin, 28 July 1930

NO APPEAL FOR URPHALI TO PRIVY COUNCIL.

   We learn that the Privy Council in London has refused to hear the appeal against sentence of death passed in the Persian Jew, Urphali, who was found guilty of murder during the riots.

   Urphali was originally found guilty and his case was sent back for re-hearing by the Court of Appeal.  He was a second time found guilty and his second appeal was dismissed.

   When H.E. the High Commissioner commuted the death sentences to terms of penal servitude for life, Urphali was excepted because his appeal to the Privy Council was then under consideration.

   Only one other Jew, P.C. Hinkis, was found guilty of murder (by the Court of Appeal) - murder, without premeditation) ass a result of the riots and he is serving sentence of 15 years' imprisonment.

   It is very unusual for the Privy Council to hear appeals in cases of murder, although very recently in the case of Dr. Knowles they heard the appeal and upset the sentence.

   Abcarius Bey also appealed unsuccessfully to the Privy Council for the Arab murderers.

 

The Palestine Bulletin, 6 August 1930

WHY URPHALI'S APPEAL WAS DISMISSED.

LONDON, (P.T. Mail Service).  - The petition for special leave to appeal to the Privy Council against the sentence of the Palestine court on Mr. Joseph Orphali, the only Jew sentenced to death in connection with the Palestine disturbances, has been dismissed. ...

  After Sir Boyd Merriman delivered his speech on behalf of Urphali, the Privy Council expressed the opinion that they could not interfere because the court of appeal in Palestine who dealt with the matter last had exercised its discretion and a Privy Council here are not sitting as a Court of Criminal Appeal.

Not A Court of Appeal.

   Viscount Dunedin in pronouncing judgment said: The case for the Petitioner has been argued with remarkable clearness and ability by the learned Counsel who has appeared on his behalf, but, in spite of what he has said, their lordships feel that they cannot advise His Majesty to grant leave to appeal without interfering with the rule which they have again and again laid down, that they are not a Court of Criminal Appeal.  The fact that they are not a Court of Criminal Appeal disposes once and for all of any question as to attacking the judgment come to, upon the ground of insufficiency of evidence and of discrepancies in the evidence, and so on.  The point that is raised particularly in this case is that, there having been granted a new trial, which was grated partially upon the ground that in some matters the Court of Appeal was not quit satisfied with the evidence that had been before the first Court, and, secondly, upon the ground that the evidence of certain additional witnesses referred to by name was tendered, the first Court, in the rehearing, had heard those additional witnesses which they mentioned but they refused to hear another witness who was tendered, that witness's deposition not having been known to  the Defendant's adviser at the time when they went to the Court of Appeal to apply for the new trial.  The effect of the second trial was that the two Judges before whom the trial took place re-affirmed the original verdict, and then again there was an appeal taken to the Court of Appeal, and the Court of Appeal affirmed that decision.  It is, of course, against that decision that the present application for a re-hearing before this Board is made.

Evidence Excluded.

   The grounds of appeal are set forth in Section 64, Subsection (1), of the Trial Upon Information Ordinance, 1924.  None of the grounds there could possibly be matter of appeal to this Board except one, because they would all fall under the general view that this Board is not a Court of Criminal Appeal.  One ground on which an appeal may come here is "That evidence was wrongly admitted or excluded at the trial."  Those are the words of the ordinance, to which must be added, as far as we are concerned, "and the result is that a grave injustice has taken place."In the Ordinance there is put this proviso to the various grounds: "Provided that the Court may, notwithstanding that they are of opinion that a point raised in the appeal might be decided in favour of the Appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred."

Miscarriage of Justice.

   It is perfectly impossible in their lordships' view, to consider that the Court of Appeal here, dealing with this matter and having the whole of the points necessarily before them, as they must have been, could have dismissed the appeal altogether unless they were of opinion that the additional evidence proffered really dif not persuade them that there had been any miscarriage of justice by the additional evidence not having been led.  I am not surprised at that, because I cannot help thinking that the evidence of identification of the place where the bodies were found is quite insufficiently made out by the Affidavit.  I am not keeping out of view that the learned Counsel for the petitioner said, that that may be so by itself but it is interwoven with other evidence given by other people, then it will be found that there is identification, but that was a point which the Court of Appeal could determine, and therefore upon these grounds, and simply following our regular rule, their lordships are unable to advise His Majesty that special leave to appeal to this Board should be granted.

 

The Palestine Bulletin, 8 August 1930

ORPHALI REPRIEVED.

Ten Years Imprisonment For Twice Condemned Man.

   It is officially announced that His Excellency the Officer Administering the Government has reprieved Joseph Mizrachi Orphali, who was sentenced to death for a murderous offence committed at Jaffa on the 25th August, 1929.

   His Excellency commuted the sentence to one of imprisonment for ten years.

   The above official announcement may satisfy no one but at least it will give a breathing space to those who have felt for a long time that the decisions in this case were, to say the last, unfortunate.  The Arab Press was recently demanding the head of Orphali and his counsel demanded a release and actually went to the Privy Council that a final decision might be given.  The Privy Council refused to hear the case and the High Commissioner has given no uncertain reply to the other inhuman demand.

   Here we shall merely give the details of this case: ...

 

The Palestine Bulletin, 11 August 1930.

UNRESTRAINED COMMENT IN ARAB PRESS.

... The Falastin could not understand why when persons on both sides were convicted after a "revolt" the condemned Jews should have received more favourable treatment. ...

   The Jews succeeded in delivering their son Urphali, without much noise and empty words of protest, says "Al Hayat." ...

   Thus the flood of articles, to use Falastin's language, has already been let loose, and their authors seem to have overlooked one vital factor, that is, that this reprieve would not have been granted had not the Acting High Commissioner and his advisers had very substantial reasons for believing that any other course would have been a miscarriage of justice.   

 

The Palestine Bulletin, 9 November 1930

HAS THERE BEEN A MISCARRIAGE OF JUSTICE?

(From the Hebrew daily Davar)

   The case of Rafael Turjeman at Jaffa was heard this week and ended in his acquittal.  Certain witnesses for the defence were due to appear to give evidence which might have shed new light on Orphali's case.  There was among those witnesses A.D.S.P. Shitstreet who examined one of those who first gave evidence in favour of Orphali and later withdrew, telling Orphali in the jail, "I was forced to withdraw my evidence by a police officer."  There was also Dr. Eliash who was Orphali's lawyer in his first trial.  Neither was called upon to give evidence because the evidence of the witnesses for the prosecution was so contradictory and so full of lies that the Court thought it unnecessary to hear any witness for the defence and acquitted Turjeman at once.

   Thus the opportunity - perhaps the last - was lost of throwing new light on the misery called the Urphali case.  Will these persons not have an opportunity of being called?  Will not the Court inquire into the following question: Why have not those false witnesses who first gave their evidence and subsequently retracted it been summoned?  Ahmed Ali Derwish and Mahmud Abu Allah before the Magistrate gave evidence in favour of Urphali and before the District Court they changed their attitude.  Why were they not committed for trial?  What has A.D.S.P. Shitstreet to say about the matter?

   The whole truth is bound to come to light some day.  Is it not the duty of those who hold the keys of Justice to accelerate it?

 

Source: The Palestine Bulletin, 2 September 1932

ORPHALI.

   The misstatements in the Falastin have served one good purpose if they bring to public attention the name of that unhappy man, Joseph Orphali, who is serving a sentence of 10 years imprisonment for the part he is supposed to have taken in the riots of 1929.

   Most lawyers are agreed that there was a grave miscarriage of justice in this case.  There seems to be very real doubt as to whether he commuted the murder for which he is undergoing this endlessly long sentence.  At the time the English "Davar" showed why the sentence passed was founded on a mistake, but the public mind was then too alarmed to pay much attention to the rights or wrongs of any given case.

REVIEW

   To-day we can look upon the Orphali case more calmly.  We all know that the Courts are closed to this wretched man.  But has not the time come for the Chief Secretary to review this case and to advise His Excellency to grant a pardon?  It is still not too late to right a great wrong.  There is still time to show that in Palestine justice may triumph over passion and that the errors of courts, honest errors, may be forgotten by executive action.

   No one to-day believes that Orphali is a murderer.  Everyone knows that fate has fought against him and won a scarcely worthwhile victory.

   Let right be done,  Fiat justitia.

   QUIDNUNC.

 

Source: The Palestine Post, 23 May 1933

DISTRICT COURT SITTING AS COURT OF APPEAL.

Before De Freitas, J., Mejid Bey J. and Valero J.

ORPHALI v. YAZIDI.

(C.A. 43/32)

JURISDICTION OF MAGISTRATE'S COURT.

   Sitting as a Court of Appeal from the Magistrate's Court, the District Court has decided that where a defendant owes more then L.P. 100 to the plaintiff, even though the plaintiff claims the sum of L.P. 100 only, the Magistrate's Court has no jurisdiction to hear the claim.

   In the present case the defendant owed the plaintiff on a promissory note L.P. 102.500 mils.  The plaintiff pleaded that the defendant had paid L.P. 2,500 mils and accordingly claimed L.P. 100.  The defendant denied that he had paid the sum mentioned and therefore pleaded that this was a claim for more then L.P. 100 and that as a consequence the Magistrate had non jurisdiction to hear the case.  The Magistrate accepted jurisdiction.

   In giving judgment the Court held:-

JUDGMENT.

   It is not specifically laid down .... Of a conversation he had had with Orphali (a Jewish prisoner serving a long sentence for the 1929 riots) before leaving Jaffa ...

 

The Palestine Post, 2 June 1935

PARTIAL AMNESTY FOR 1929 PRISONERS.

TEN MAY BE RELEASED.

   To mark the King's Birthday in this Jubilee year, the High Commissioner has decided, with the approval of the Colonial Secretary, to grant a partial amnesty to the 37 prisoners who are serving sentences on charges arising out of the 1929 riots, it is reliably learned by The Palestine Post.

   Full pardon will be extended to ten prisoners, eight Arabs and ex-P.C. Simcha Hinkis and Joseph Orphali. The latter are the only two Jews sentenced in connection with the disturbances.

The Palestine Post, 3 June 1935

Immediate Release

The following prisoners will be immediately released on June 3:-

... Simha Hinkis, ...

AMNESTY.

Remission of Sentences.

   The following prisoners will, in virtue of the remissions now granted by the High Commissioner, be released on August 1, 1935, subject to their behaviour continuing to be satisfactory:-... Yussef Abraham Orphali.

 

Published by Centre for Comparative Law, History and Governance at Macquarie Law School