And later on:
"The typical case of intent in the case of basic murder is that of spontaneous intent (since one who Intentional – weighing – falls under the category of murder in aggravated circumstances)" (pp. 269-270).
- In contrast to the principle of intention, Article 20 Defines, as mentioned, apathy – "With equanimity for the possibility of causing the aforementioned results". According to this definition, when it comes to the offense of manslaughter, it must be proven that the perpetrator was equal (not caring) to the possibility of causing death. In Dr. Ohad's article Gordon "murder with indifference" (Edmund Levy's book, pp. 411-421) The author proposes a number of auxiliary tests for inference of apathy, a kind of "presumption of indifference." It was proposed, inter alia, to examine the intensity of the risk taken by the murderer, and to draw distinguishing lines between the presumption of intent that already exists and the presumption of indifference proposed. Thus, a person who fires a bundle at a bus and kills its passengers is held to have intended the consequences of his actions; However, one who fired a single shot at or near the vehicle, without aiming directly at his passengers, there may be room to apply the presumption of indifference to him where he "only" tried to intimidate the passengers. It was suggested that the presumption of indifference should also be determined by the extent to which the defendant estimated that his actions would lead to death, and nevertheless continued his actions. If he assessed the possibility as "likely", this would be equivalent to intention according to the expectation rule; If he assessed the risk only at a high level, this would strengthen the conclusion that he was indifferent to the outcome; But if he underestimated the risk, and this hope is also anchored in reality, he will be judged to be frivolous.
- There are also the following things that should help us and focus on the distinction between the aforementioned mental elements. In Gur-Aryeh's article on the reform in the offenses of homicide (ibid., at p. 462), Gur-Aryeh pointed to two typical situations (which are not necessarily exhaustive), in which indifference can be attributed to the murderer: the first is when the defendant has a goal to commit a serious criminal offense and is determined to fulfill it "There will be the side effects that may occur following the realization of this goal, whatever they may be..." However, these cases will in any case be defined as murder under aggravated circumstances according to Section 301A(a)(2) relating to murder while committing another offense; The second is when a person resorts to a multitude of acts of violence that end in death.
- In the above book by Kremnitzer and Ghanaim, the authors note that the deliberate killing would not have changed his ways, even if he knew with certainty that the fatal result would be caused; While Apathy does not care whether it will result in the death of the victim, he does not prefer the non-occurrence of the result to the occurrence and thus demonstrates a far-reaching disregard for the value of human life. This is also the reason why the above two are close in terms of values. The authors cited as examples of indifferent murder, arson or explosion of a residential building, shooting at a car or a residence with the intention "only" to cause damage to property or to cause fear and panic and without the intention of causing death (without the expectation of this with a high degree of probability that then it was intentional).
- The questioner asks whether there is any real significance to the distinction between basic murder committed intentionally and one committed with indifference, given the fact that following the reform in the offenses of manslaughter (Penal Law (Amendment No. 137, 5779-2019, S.H. 230), These two mental elements are now grouped together in the basic offense of murder (or the offense of murder under aggravated circumstances). An answer to this can be found in the very recent words of the Supreme Court, in a criminal appeal 77069-09-24 Gaber Talai Persegi v. State of Israel [Published in Nevo](30.11.2025) (hereinafter: "The Gaber Affair"). In the same matter, as in our case, the case requires a decision in relation to the mental-objective element in which the appellant acted there – indifference or intent. In this regard, it was held that:"Prima facie, for the purpose of the verdict, there is no direct significance for the distinction between the two, which remains significant for the purpose of determining the defendant's sentence: "The legislature, combining the element of intention with the element of indifference, both in the basic offense of murder and in the offense of murder in aggravated circumstances, made it clear that death by indifference is nothing but murder, similar to intentional homicide. [...] However, indifference is not entirely equivalent to intention, and the difference between a murderer who wishes to kill the victim and a murderer who has shown equanimity towards the possibility of causing death has not been completely erased."Criminal Appeal 3551/23 Haile v. State of Israel, Paragraph 18 [published in Nevo] (August 11, 2024))."
See also the words of the Supreme Court in a criminal appeal in this regard 8577/22 Sergei Yefimov v. State of Israel [Published in Nevo](April 21, 2024), according to which: "The basic offense of murder, like the offense of murder in aggravated circumstances, requires an objectified element of indifference or intent in relation to causing the death of a person (section 300(a) and section 301a(a) of the Law). The distinction between indifference – equanimity to the possibility of causing death (section 20(a)(2)(a) of the Law) and intent – purpose to cause death (section 20(a)(1) of the Law) is often a complex distinction from an evidentiary point of view. As I have reviewed extensively only recently in the Yassin case, this distinction remains significant even after Amendment 137 to the Law (Penal Law (Amendment No. 137), 5779-2019, S.H. 230 (hereinafter: the reform of the offenses of manslaughter)), especially with regard to the severity of the punishment in the case of the basic offense of murder (ibid., at paragraphs 34-43)." (Hereinafter: "The Yefimov Affair").
- And from the general to the individual. The findings of the fact that were proven before us and which my colleague Justice Sheetrit discussed at length in her opinion, and which, as stated, are acceptable to me, were agreed upon by her (in paragraph 361 of her opinion), as follows: "As determined above, when the incident began, the defendant got out of his car with a pistol in his hand, approached the deceased and fired several bullets in the air. Later, when the deceased returned to his car, the defendant fired several bullets in the air again. At this point, the deceased got out of his car again and attacked the defendant, who was still holding a gun. According to the video documenting the incident, the deceased tried to take the gun out of the defendant's hands, while exchanging blows, until the two fell to the ground and continued wrestling. During the struggle on the ground, the defendant fired two bullets that hit the deceased, one of which led to his death. The deceased got up and fled back to his car, while the defendant stood on his feet and fired three shots at his back, which did not harm the deceased." (Emphasis in original, AAA).
- These findings, in my opinion, properly establish the existence of the element of intention in the defendant at the time of the commission of the factual elements of the offense of murder, and are inconsistent with the element of indifference. In the circumstances of the case, I am of the opinion, these findings do not leave a reasonable doubt from which the defendant is entitled to benefit. And I will explain.
- As stated, regarding the cause of death, he testified before us Dr. Andrei Kotik, a physician at the Institute of Forensic Medicine in Abu Kabir, through whom a document regarding the preliminary findings of the deceased's examination (P/81), a letter of clarification regarding the autopsy of the deceased's body (P/82), an expert opinion (P/83) and a photo disc (P/141) were submitted. From his testimony, at the end of the day, it emerged that the deceased's death was caused by a bullet fired at close range, about a meter, at the defendant and hit him "In the chest on the right, about 2 cm from the middle nest and about 43 cm from the top of the apex..." When, "In an in-depth examination, the projectile passage canal in a backward direction, down and slightly to the left, passes through the sternum, at the height of the fourth rib, through the right ventricle of the heart, the interventricular septum and the wall of the left ventricle, through the left lung, and through the eighth rib in the line between the sacrum and the spine."
In his opinion, Dr. Kotik also noted that "Based on the findings of the autopsy on the body of the deceased Diyar Omri, year of birth in 2004, I am of the opinion that his death was caused by shock of cardiac origin (cardiogenic shok) following the passage of a bullet through it (marked 5a)." It was also held that "Shock from a cardiac source in this case was caused by direct damage to the integrity of the heart chambers and the septum between them. Such damage impairs the heart's ability to act as a pump, and then there is a rapid drop in blood pressure, the blood supply to vital organs, including the brain and the heart itself, and death is caused within a short time. The damage caused to the left lung as a result of the bullet's passage could have caused respiratory deprivation and hastened death."
- In her opinion, my colleague rejected the defendant's argument that this was an involuntary emission of bullets. This conclusion is acceptable to me, as stated. The defendant did not make any other argument in connection with the two shots. Therefore, given the location and range of the shooting, it is possible to determine in my opinion that the defendant foresaw the occurrence of the fatal result, as a near certainty possibility, and therefore, he should be regarded as the one who set himself the goal of causing the fatal result, in other words, as the one who intended to commit the murder according to Article 20 (b) to the law. In the circumstances of the case, Both from the perspective of expectations, and even from the normative aspect, it is difficult to shock that someone who fires two bullets from such close range to the upper body of his victim, one of which directly hit the deceased's heart and led to his death, does not expect a high level of certainty that he will cause the fatal result, as indeed happened to the deceased.
- It should be remembered that the defendant, according to his testimony, He served in his regular military service as a soldier in the sabotage and engineering company in the Golani and as a reserve soldier in a commando unit. Until his arrest, he said, he served in active reserve duty. Even if he had not confirmed his attempt to use a weapon (see the defendant's explanations in this context, at p. 524, lines 15-25 of the transcript, and see, in addition, his confirmation that he was in possession of the pistol under license, at p. 563 ibid., line 21), he is obligated to have a general presumption of awareness, a presumption that is most "strong" in his case, taking into account the defendant's aforementioned data, and which was not concealed, according to which a person is aware of the expected consequences as a result of his actions. In addition, in his conduct during the incident, the defendant demonstrated his control of the weapon. When he wanted to shoot in the air and stop, the defendant knew how to do so, and so did when he chose, later on, to resume firing.
- And if you want to say that the shooting was carried out during a skirmish, incidentally between the defendant and the deceased, so that it is not possible to determine that the location of the shooting was deliberate and that it may have been accidental, then in my opinion, there are many other indications that indicate the state of mind of the defendant in this case. In the circumstances of the case, I am of the opinion that the request of the defendant's counsel should not be followed to isolate the second part of the incident from the other parts, and that there is room to examine the incident as a whole, as a whole, and all the more so in view of its short duration and the course of events during it and the clear connection between the various parts, as reflected in the video documenting it. Segmenting the incident into three separate parts, as we have invited the defense attorney to do, seems artificial and contrary to reality.
- It should be noted here that after watching the video extensively, I find it difficult to determine that the shooting was carried out during a struggle between two people, as my friend concluded. Even if the deceased pushed the defendant away at one stage or another of the incident, this is an understandable attempt to repel an armed person who uses a firearm and endangers his safety. After all, this is an unfortunate incident that is the unfortunate result of the initiative and deliberate escalation of the defendant himself, who stopped his car on the road, got out of it while rushing towards the deceased's car, armed with a firearm and fired shots in the air, not once but twice.
- In any case, we are entitled to use the evidentiary tool that deals with the "presumption of intent" in the framework of which we are required to examine additional objective circumstances that may indicate the state of mind of the defendant. With regard to this presumption, it has been said more than once that "This is a factual-evidentiary presumption according to which a reasonable person acting of his own free will intends to bring about the natural results of his act. The presumption is based on the fact that, according to life experience, a person who adopts a certain line of behavior is presumed to have intended the consequences that derive, naturally and with high probability, from his behavior. In this presumption, the court makes use of the set of circumstantial facts surrounding the incident, in order to establish a presumption as to the will of the defendant (Yassin, para. 45; Criminal Appeal 2418/17 Kutina v. State of Israel, paragraphs 16-17 [published in Nevo] (October 25, 2018))." (Yafimov above).
- When the claim that the defendant intended to kill the victim was examined, the case law developed circumstantial auxiliary tests that are applied in each and every case. In this framework, the circumstances of the incident are examined, such as the manner in which the murder was committed; the nature and location of the injury; the murder tool; previous statements by the accused; and his behavior before and after the incident – including the lack of an attempt to call for help and flee the scene (Criminal Appeal 8686/15 Gribov v. State of Israel, paragraph 28 [published in Nevo] (October 3, 2017); Criminal Appeal 2458/11 Solovyov v. State of Israel, paragraph 25 [published in Nevo] (January 7, 2014)).
- In the case before us, I am of the opinion that on the basis of the existing evidence, it is possible and necessary to determine that the defendant killed the deceased intentionally. To justify my position I will first turn to what our eyes see in the improved video P/97, which documents the event, almost in its entirety, with relatively high quality photography. The defendant used a deadly weapon. with which he shot the deceased at close range Two Shots that hit the deceased, and one of which led to the death of the deceased. As indicated by his opinion Dr. Kotik's conclusion, dated February 22, 2024 (P/83), stated that the deceased's death was caused by shock of cardiac origin, which is the result of direct damage to the integrity of the heart chambers and the septum between them, caused by the passage of a bullet through it. The opinion also indicates that the shooting was fired at close range, apparently a few centimeters.
In addition, and in accordance with the opinion (P/83), a bullet entry wound was found in the front of the left shoulder, with the direction of the bullet passage channel being backward and right. This bullet passage caused damage to only soft tissues, no damage to major blood vessels and no penetration into the pleural cavity. Hence, he did not contribute to the death.