| Yifat Shitrit,
Judge |
Judge Ossila Abu As'ad
- I have re-examined the opinion of my colleague, the Honorable Judge Yifat Shitrit, and I agree with the detailed analysis of the evidence brought by her and the conclusions that arise by virtue of them with regard to the existence of the factual foundations of the offenses attributed to the defendant in the indictment. On the aforesaid side, I am afraid that in the special circumstances of the case at hand I cannot join its conclusion with respect to the mental-objective element in which the defendant acted at the time of the commission of the basic offense of murder, and my opinion on this matter is different.
- The defendant is charged in the indictment with the basic offense of murder, according to Section 300(a) of the Penal Law, 5737-1977 (hereinafter: "The Law"). In the indictment filed by her and in the summaries of her arguments, the accuser claimed that in the acts committed by him, as described in the indictment, the defendant intentionally caused the death of the deceased. In her opinion, after rejecting the defense arguments raised by the defendant, my colleague reached the conclusion that the defendant should be convicted of committing the basic crime of murder. With regard to the mental element, it determined that this offense was committed by the defendant with indifference. As stated, my opinion on this matter, as I will detail below, is different.
- It should be noted that in view of the limited dispute that has been abandoned between me and my colleague, as stated, I am now spared the need to review and analyze the evidence relating to the facts of the indictment. Naturally, the evidence submitted in this context and the facts proved by virtue of it are relevant to the fabric of the dispute that still exists – whether the defendant committed the basic crime of murder intentionally, as the accuser claims, or whether he was indifferent to the consequences of his actions, as my colleague reached, as stated. Therefore, in the context of these evidence and facts, I will rely on the detailed analysis of the evidence brought by my colleague above, since the said analysis and the conclusions drawn at the end are absolutely acceptable to me.
- It should also be noted that given the defendant's version and the defense arguments raised by him according to which, mainly, the death of the deceased was caused as a result of the emission of two bullets from the defendant's weapon during the scuffle between him and the deceased on the side of the road, this issue, which deals with the essence of the mental-objective element in which the defendant acted, did not receive the weight it deserves, neither during the hearing of the evidence nor in the framework of the summaries. At the same time, where the defense arguments raised by the defendant were rejected, and given the accuser's petition on the issue of the nature of the offense, and in particular on the issue of the mental element, we must not skip over this issue and decide it on the basis of the evidentiary material presented before us, and so we will do so.
- The "Basic" Crime of Murder Section 300(a) He teaches as follows:
"Whoever causes the death of a person with intent or indifference shall be sentenced to life imprisonment."