It was further claimed that Yariv's idea of taking a franchise of the "Soho" restaurant was eventually stalled by the refusal of the restaurant owners to sell him a franchise, and therefore the idea faded, as did Yariv's need to obtain a loan from the defendant. At a later stage, Yariv had the opportunity to join Eli Golan (Ben-Zaken's brother-in-law) as a partner, but at this stage, he did not need a loan from the defendant. Hence, apparently, the source of the defendant's argument lies in an adversary's prior request, but not in the loan he actually gave him.
Decision
- After examining the various pieces of evidence and considering the arguments of the parties, I came to the conclusion that the prosecution was able to prove that Yariv had asked for a loan from the defendant, but had not been able to prove, with the required level of certainty, that the defendant had agreed to that request.
- Here are my reasons:
The prosecution's position that the defendant transferred a sum of money to an adversary is based, positively, solely on the defendant's version in his interrogation, but this version in the context of the financial conduct vis-à-vis Yariv is far from uniform, and is replete with statements by the defendant regarding his inability to remember the very granting of the loan. In fact, and beyond those references made by the prosecution, reference can be made to a series of statements made by the defendant in the same context, according to which he does not remember the details relevant to both the actual payment of the sum and the actual scope of the amount.
A factual determination based on a defendant's confession is possible according to the laws of evidence, but in the present case, a distinction must be made between the two parts of the version: (a) The defendant's statements on the question of the very nature of Yariv's request were consistent, and he even repeated them in his testimony in court (Prov. pp. 1310, paras. 18-28; Prov. p. 1311, para. 31); (b) The defendant's acceding to his request and transferring the money – in the context of this part, it cannot be said that we are dealing with a uniform version, and it seems that we are dealing with a version that is not conclusive, replete with statements regarding the inability to remember the event, and lacks anchoring at a specific point in time.