From the foregoing, it appears that the defendant failed to provide a concrete explanation as to why he believed that the deceased was a terrorist who intended to carry out an attack, as opposed to a driver who was not satisfied with the defendant's conduct on the road, beyond his explanations regarding the tense security period in which the incident took place, and beyond the fact that the deceased was an Arab. In my opinion, these explanations are not satisfactory and they do not coexist with each other and are not consistent with the defendant's actual conduct.
As stated, if the defendant had genuinely believed that this was a terror incident, it is reasonable to assume that he would have conducted the incident differently and would not have come to the deceased on his own initiative to shoot in the air over his head. Striving for contact, as the defendant claims, does not mean clinging to the deceased and continuing to escalate the incident. On the other hand, if the defendant did not fear for his life at that stage of the incident, it is not clear why he continued to shoot in the air and confront the deceased.
- In light of the above, I reject the defendant's argument that he acted under the impression that we were dealing with a terror incident and because he feared that the deceased was a terrorist. I have reached the conclusion that the defendant got out of his car with a pistol drawn in his hand without a substantive and substantive justification and acted in a manner that was not required and disproportionate in view of the circumstances. Thus, I am of the opinion that if the defendant had not acted as aforesaid, the incident would not have escalated as it actually happened, but would have ended in a completely different manner.
- However, in light of the fact that the defendant fired a pistol in the air and did not fire at the deceased, I am of the opinion that the defendant did not intend to cause the death of the deceased at this stage of the incident. There is no dispute that if the defendant had wished for the death of the deceased at this stage, or even for bodily injury to the deceased, he would have had no impediment to doing so, and he could have shot the deceased and injured him. The fact that the defendant did not do so shows that at this stage of the incident, the defendant did indeed act in an unnecessary and disproportionate manner, but did not intend the death of the deceased, or to harm him by the use of a gun.
The second part of the event
- This part includes the struggle between the defendant and the deceased, which began after the defendant fired the second shot in the air near the deceased's car, the arrival of the two on the opposite side of the road near the railing, their struggle on the ground and the firing of two bullets from the defendant's pistol, one of which ultimately led to the death of the deceased.
- According to the indictment, the fistfight, which broke out inside the Toyota when the deceased sat in the driver's seat, continued out of the vehicle, along the entire width of the road and up to the railing on the other side of the road. All the while, while he was arguing and exchanging blows with the deceased, the defendant held his pistol on alert. Near the railing, the defendant and the deceased fell to the ground and continued to roll and exchange blows. In the meantime, the defendant fired two shots at the deceased in the upper body, at close range: one in the chest and one in the shoulder, with the intention of killing him, according to the claim.
- In this context, it should be noted, first, that initially it was believed that the shooting that led to the death of the deceased was carried out by the defendant after this stage of the struggle and when the deceased got up and fled back to the Toyota vehicle. This is in accordance with the initial opinion of Dr. Andrei Kotik of the Institute of Forensic Medicine in Abu Kabir dated 24 May 2023 (P/81).
In this preliminary opinion, entitled "Preliminary Findings", Dr. Kotik summarized the main findings, which are: a bullet entry wound in the back - the passage of the bullet channel through the heart and left lung and a bullet exit wound in the chest, a bullet entry wound in the left shoulder (on the back side) - the passage of the bullet channel through the soft tissues and a bullet exit wound in the front of the left shoulder, abrasion wounds on the head and lower right limb, signs of medical treatment - a surgical cut wound on the left torso.