It should be noted that the accuser devoted a significant part of her summaries to denying the claim of self-defense, which the defendant raised in his police interrogations. However, in completing his oral summaries, counsel for the defendant clarified that the defendant does not hold the claim of self-defense as part of his defense at all. Hence, we are not required to decide on this issue.
- In my opinion, an examination of the evidentiary casket as it comes before us shows that an evidentiary fabric has been laid to prove the evidence attributed to the defendant and is based on a number of different and diagnostic evidentiary pillars that are consistent with each other and reinforce each other and which are capable of proving with the standard of proof required in criminal cases that the defendant committed the acts attributed to him, as well as the offense of murder arising out of them. At the same time, and in the examination of the latter, in my opinion, the defendant should be convicted of the basic offense of murder attributed to him, but with regard to the mental element, I am convinced that the offense was committed with indifference and not intentionally, as attributed in the indictment, and all for the reasons and reasons that will be detailed in detail below. In the overall evidentiary mosaic that has been laid, it is necessary to prove the acts attributed to the defendant in the context of the offense of murder in the indictment, while formulating a mental element of indifference, under the element of intent.
- I will preface the latter and note that I was impressed by the reliability of the testimonies of the prosecution witnesses that were heard before us and we were impressed by them directly. I was under the impression that the eyewitnesses, none of whom had prior acquaintance or conflict with the defendant, testified that they perceived with their senses and described the events as they were and as they actually occurred. I was also impressed by the testimonies of the police and professionals who were brought before us, and I was impressed that they did their job faithfully and professionally.
On the other hand, I found the defendant's version to be unreliable and unreliable, incoherent, and as such that it underwent changes and adjustments as the police investigation progressed in his case, in order to adapt it to the findings of the investigation. Moreover, the defendant's version is inconsistent with logic and common sense, and the impression arises that it was intended to evade responsibility for the death of the deceased.
- Below we will relate to the various parts of the incident that is the subject of the indictment in the context of the crime of murder attributed to the defendant, while examining the actions of the defendant, on the one hand, and the deceased, on the other, in each of the parts of the incident. An examination of these will enable us to reach a conclusion both as to the mental element of the deceased during the incident and as to the extent of his control over the intent of his actions, i.e., the shooting that led to the death of the deceased.
The Preliminary Part of the Event
- According to what is attributed to the defendant in the indictment, at the time of the incident, he was under the influence of alcohol and under the influence of a cannabis-type drug. As alleged in the indictment, before the day of the incident, the defendant consumed a dangerous cannabis-type drug, at the time of the incident he was under the influence of the drug, and a blood sample test revealed metabolic products of the active ingredient in cannabis. It was also claimed that in the afternoon hours of the day of the incident, the defendant was at home and drank several cans of beer. At around 5:00 P.M., the defendant left his house, driving his mother's Mitsubishi car, and drove to Migdal HaEmek to meet his girlfriend. This was despite the fact that he was disqualified from driving at the time and despite the fact that he was under the influence of alcohol and drugs he consumed. When the defendant arrived at Migdal HaEmek, his girlfriend informed him that she was not interested in meeting him, and therefore, the defendant turned around and began to drive back towards Gan Ner. On his way back, the defendant stopped at a gas station, bought several cans of beer and drank one of them.
So far, the facts alleged in the indictment relate to the stage that preceded the incident. According to the accuser, the defendant's physical and mental state, when he was under the influence of drugs and alcohol, and when he was frustrated with the rejection he experienced by his girlfriend, affected the way he behaved in the incident. The accuser sought to learn from these about the defendant's state of mind at the time of the incident, including the conclusion that the incident began with the defendant's displeasure with the deceased's manner of driving on the road, against the background of his being under the influence of drugs and alcohol, as well as his dissatisfaction with the fact that he had reached Migdal HaEmek in vain, and we will address this below.
- As stated, the defendant did not dispute that he drove under the influence of drugs and alcohol. Nevertheless, and in view of the importance of the matter, we will relate to the evidence that was brought before us in this context and the findings that in my opinion must be determined on the basis of these.
- As for the defendant's driving under the influence of alcohol, a report was submitted regarding a drunkenness test using an owl device (P/14). The breathalyzer test was performed by Sergeant Jimmy Sarhan, who testified about the circumstances of the test and confirmed that the owl device was calibrated as required and that it was performed, as indicated by the references attached to P/14. The results of the test indicate that the sample of the exhaled air provided by the defendant found an alcohol concentration of 474 micrograms per liter of exhaled air, which is a concentration that exceeds the threshold set in theTraffic Regulations. In other words, the breath sample given by the defendant found a concentration of alcohol almost double that permitted by the regulations (240 mcg). It should be noted that the breathalyzer test was performed at 21:08, i.e., about three hours after the incident, and therefore it is possible that the concentration of alcohol in the defendant at the time of the incident was even higher. There is no dispute that this is indicative of the degree of intoxication of the defendant at the time of the incident, which has an impact on the defendant's conduct and functioning.
- The defendant himself confirmed that he drank beer both on his way to Migdal HaEmek and during his journey back home, in a significant cumulative amount. It should be noted that the defendant changed his version with respect to the exact amount of alcohol he drank, in a way that gives the impression that he was trying to minimize it. Thus, in his first interrogation with the police on May 6, 2023 (P/2), the defendant stated that he drank about a liter of beer at noon (P/2B, p. 6, s. 30 ff.). Later in the same interrogation, the defendant minimized the matter by stating that: "Drunk, two beers is that... It's not drunk" (P/2B, p. 14, para. 32). When the defendant was confronted with the claim that the concentration of alcohol found in his possession was inconsistent with drinking two beers, or even drinking a liter of beer, the defendant admitted that he had drunk a liter and a half (P/2B, p. 15, s. 13).
In his second interrogation on 16 May 2023 (P/6), the defendant had already stated that he had been drinking at home at noon "Three or four small Heineken bottles of a third... even... More than even four... Five even bottles... Something around four to six. Let's say five bottles." (P/6B, pp. 8-9). He also stated that on his way home from Migdal HaEmek, he stopped at a gas station and bought three more cans of beer and drank one on the way (P/6B, pp. 14-15). That is, a cumulative amount of about 2 liters of beer.