From the drawing drawn up by the witness and attached to his statement to the police (P/3), it appears that the first point of contact between the defendant and the deceased, after they got out of their vehicles, was next to the deceased's car, on the driver's side, when the defendant came from the direction of the rear of his vehicle, which stood parallel to the deceased's car. Beyond the fact that Asa's testimony contradicts the defendant's claim that the deceased got out of his car first and attacked him, his description, as expressed in the drawing, contradicts the defendant's claim that the deceased ran towards him, since they met at the driver's door of the deceased's car, while the defendant managed to get out of his car, overtake his car from the rear and reach the deceased, who was standing, as stated, near the driver's door from which he got out.
- Moreover. Assa described that the defendant attacked the deceased and initiated the quarrel between them: "As I described earlier, I assumed, or assessed, that there was a fight here and that it wasn't, I mean, the first guy who attacked the guy who was sitting, who was standing outside the jeep, he, he actually initiated this attack on the guy, he really attacked him... He runs. I saw him get out of his car and run and, with a gun drawn. And that's also one of the reasons, I think, that I understood that it wasn't a terror attack, because if it was a terror attack, then it was, he wanted to arrest a terrorist or something, so he would stop at a distance and neutralize him, but it wasn't, he ran to make contact with him at zero range. This is not a terror attack" (p. 395 of Prut, paras. 31 ff.).
- It has not escaped my notice that in his statements to the police (N/3, N/4), Asa stated that a young woman with dark hair was sitting in the defendant's car, and there is no dispute, according to the evidence presented to us, that the defendant was alone in the car. Nor did it go unnoticed that in his report to the police's 100 hotline, Asa noted that the shooter's car was orange, when in fact his car was dark. Assa referred to this in his testimony in court and explained that he was focused on the event that took place before his eyes, that is, the confrontation between the defendant and the deceased, and not on the peripheral details of the incident: "My focus was on the people in the event that was happening... I see a person with a gun standing with another person at zero range and releasing a shot near his head. That's where my focus was. The policewoman who is at the call center also asks me what color it is. I told her, 'I think it's orange.' Me, that's my explanation... I said these things and I also stood there and saw the incident inside the car." (p. 395 of Prut, paras. 23-28). Considering the nature and nature of the incident in which Asa found himself, his explanations are acceptable to me and I do not find that these erroneous details that he gave in his statement to the police and in his report to the 100 hotline are likely to impair the credibility of his testimony. The witness is an objective witness, who has no prior acquaintance with the defendant or with the deceased, and I have the impression that he testifies to the things as they were and as he actually experienced them. Therefore, I consider it necessary to rely on his testimony in this context, to adopt it and to base its findings on it.
- Moreover, the defendant's claim that he got out of his car with a pistol drawn and fired in the air because he thought it was a terror incident in light of the deceased's conduct, is unreasonable even taking into account the defendant's own actions. It is puzzling how in a situation in which the defendant fears that he may fall victim to an attack, in a manner that raises a fear for his life or injury to his body, the defendant is actually the one who gets out of his car, approaches the deceased to the point of zero in a way that increases his chances of being harmed, and does not let go of the deceased, instead of fleeing the scene. It should be emphasized that the defendant was holding a gun with which he could have defended himself if it turned out that he was indeed a terrorist who wished to harm him. The defendant's explanations that as a combat soldier he is an artist and has been trained to strive for contact are unreasonable and inconsistent with common sense and the logic of things. The defendant reiterated that he fired warning shots in the air in order to deter the deceased, but it is not clear why the defendant chose to reach the deceased by firing right above his head. It should be noted that as we have shown above, when the defendant and the deceased stopped their vehicles, the defendant's car separated them and the defendant was the one who overtook his vehicle and approached the deceased. This is inconsistent with a real concern that we are dealing with a terror incident.
- Not only that. Apparently, in the video documenting the incident, and as it appears from the testimonies heard before us, the deceased's car did not block the defendant's car, where their cars were parked parallel to each other. Under these circumstances, the defendant could have left the place at the moment he saw that he was not a resident of the community or a friend wishing to greet him, as he claimed. Thus, the defendant could have returned to his car immediately after the initial confrontation between him and the deceased, left the scene and avoided escalating the incident. But not only did the defendant not leave the place himself, he also prevented the deceased from doing so. As stated, after the deceased and the defendant got out of their cars and the defendant fired the first shot in the air, the deceased returned to his car and sat in the driver's seat. The defendant described that the deceased was sitting "half and half", that is, with half of his body inside the car and half of his body outside the car. The video shows that at this stage, the defendant was standing next to the driver's door of the deceased's car, while the deceased was sitting inside the car with the car door open. At this stage, the car door is seen moving and hitting the defendant's head, and after that, a fistfight develops between the defendant and the deceased.
- There was a dispute between the parties as to whether the deceased tried to close the door of his car or whether, as the defendant claimed, the car door moved due to the deceased's movement inside the car. The impression from watching the video is that the deceased did try to close the car door, but was unable to do so due to the fact that the defendant was standing at the door. In any event, it is clear that in this state of affairs, when the defendant stands next to the deceased's car, when the car door is open and the defendant does not move from his place and shoots in the air, the deceased cannot close the car door and drive away. This is inconsistent with the defendant's claims that he acted as he did in order to deter the deceased and cause him to leave the place. This, too, contradicts his claim that he thought it was a terror attack.
- Moreover. Although the defendant claimed that he thought it was a terrorist incident and that the deceased was a terrorist, according to his version, he did not fear for his life at this stage of the incident, because the deceased was unarmed. For this reason, according to the defendant, he fired only in the air. In my opinion, in this way, the defendant is trying to hold the stick at both ends. On the one hand, the defendant claims that he was afraid and felt threatened by the deceased and therefore got out of his car with a gun drawn and fired in the air, and on the other hand, the defendant claims that he did not fear for his life because he saw that the deceased was unarmed and therefore the deceased could not harm him. In this context, see the testimony of the defendant at p. 531 of Pruth, para. 17 ff.:
"The Honorable Judge A. Abu Asaad: Explain to us how you felt threatened.