"The mental element of an offense concerns the subjective attitude of the perpetrator of the offense, on the cognitive and voluntary levels, to the factual elements of the offense" (President M. Shamgar's remarks in a criminal appeal 5612/92 State of Israel v. Be'eri, IsrSC 48(1) 302, 356 (1993)). It is possible and even required to make use of evidentiary presumptions and other tools that the law recognizes for the purpose of determining a finding regarding the mental element of a defendant, but not through the lens of reasonableness or according to an objective criterion, it is necessary to determine whether the mental element exists. At the end of the day, the burden is on the state to prove, to the standard required in criminal law, that all the parts of the mental element are fulfilled by the concrete defendant in the concrete event."
In light of the above, insofar as we are dealing with an arbitrary element of intent, the State did not meet this burden, and in any event, doubt remains as to the issue of intent, which the defendant is entitled to enjoy. In light of this, and in the circumstances surrounding the incident, the obvious conclusion is that the defendant caused the death of the deceased out of a mental element of indifference. In other words, the defendant did not want the death of the deceased, but he was indifferent to the occurrence of this result and acted with equanimity for this possibility.
- Before I conclude our discussion of the crime of murder, I will address the possibility of convicting the defendant of the offense of manslaughter according to Section 301C to the Penal Law.
Defined frivolity In section 20(a)(2)(b) to the Penal Law as an Act "By taking an unreasonable risk of causing the aforementioned results, in the hope of succeeding in preventing them".
Although, in general, both indifference and frivolity constitute a mental element of recklessness, with regard to the offenses of manslaughter, each of these falls within the scope of a different offense of manslaughter, according to the severity attributed to it by the legislature. Thus, indifference is bound up with intent in the basic offense of murder, while negligent homicide is a separate offense with a lesser degree of severity.
- The defendant's actions, as it emerges from the facts of the indictment and as detailed in detail above and the factual determinations that we have seen to determine, reflect equanimity in the death of the deceased, and I am of the opinion that attributing a mental element of the type of "frivolity" to the defendant on the assumption that he had the hope of succeeding in preventing the fatal result of the deceased's death, is inconsistent with the circumstances of the incident, as well as with the evidence material. As stated, the defendant fired two shots at the deceased in the upper body, at close range, and it is unreasonable to determine that under these circumstances he hoped that the death of the deceased would be prevented.
Moreover. The third and final part of the incident shows that this is not a case of negligent homicide. As may be recalled, after the defendant fired two bullets at the deceased during the struggle on the ground and was aware that the deceased had been hit by this shot, the defendant continued to fire three shots at the deceased from behind from a distance, with a reasonable possibility that they would hit him and lead to his death. Not only that. After the deceased collapsed on the floor as a result of the gunfire fired by the defendant, the defendant did not call for help and left the deceased, leaving him wallowing in blood. In light of all this, there is no basis for the determination that the defendant hoped that the death of the deceased would be prevented.
- As detailed at length in the case law cited above, after the shooting at the deceased, the deceased fell near the door of his car, wallowing in his blood. The defendant left the scene without calling for help. Where the defendant left the scene without showing even a slight interest in the deceased's condition, the conclusion is necessary that there was one for the defendant whether the deceased died or not. The hope of preventing the fatal result, as required for an object-like attitude of frivolity, was not expressed in any way in the defendant's actions.
- In these circumstances, there is no doubt that the appellant did not act in the hope of succeeding in preventing the fatal result from occurring, and in any case it is absolutely clear that he is not frivolous. This is consistent with the recent ruling of the Supreme Court, as explained above, and even more so in the Biton case, which I detailed, where the circumstances of the defendant's shooting of the deceased in this case, on the one hand, constitute a serious case of murder with indifference, and the defendant's actions after the killing also indicate his indifference and disregard for the difficult situation of the deceased. On the other hand, the defendant's actions do not amount to intentional murder on the one hand, nor do they amount to reckless manslaughter on the other.
Disqualified Driving
- Article 67 The Traffic Ordinance instructs as follows:
"67. A person who has been informed that he has been disqualified receives or holds a driver's license, and as long as the disqualification is in effect, he drives a vehicle whose driving is prohibited without a license under this Ordinance, or a person who drives contrary to the conditions added to his license as long as they are valid, or a person who has been informed that he has been disqualified from holding a vehicle license and as long as the disqualification is valid, he uses or permits the use of that vehicle, or anyone who drives or permits another to drive a vehicle in contravention of a prohibition notice or a prohibition of use order, shall be sentenced to three years' imprisonment or a fine of one hundred thousand pounds, or both penalties."
- In fact, there was no dispute about the commission of this offense, where the defendant admitted that he had been disqualified and even stated that he had hurried to leave the scene of the incident due to his fear that he would be caught driving with disqualification.
As detailed in the facts of the indictment and in accordance with my determinations above, the defendant's driver's license was revoked on February 22, 2022 as part of the Traffic Criminal Appeal 14687-02-22, for 24 months (minus 30 days of administrative suspension). The judgment was filed and marked P/104. A document from the Licensing Office (P/73) indicates that the defendant's license was deposited and revoked until November 12, 2023. In these circumstances, at the time of the incident, the defendant was driving while he was disqualified from driving the vehicle. Hence, he should be convicted of the offense of driving by disqualification as attributed to him in the indictment.