Later, Mimran described the same conversation with Ben-Eliezer:
"I don't talk to a minister every day, when a minister who is no longer my minister and is not directly in charge of me, talks to me and the Ministry of Industry, Industry, and Labor, you have to understand that as far as I'm concerned, this is an event that was burned to a CD, what should I do? That's why I say with such full confidence that he spoke to me that he was there. No question at all" (Prov. p. 328, s. 6).
And:
"I think there was one time when I was contacted, when Ben-Eliezer, may his memory be blessed, was a minister who was detained until the end of the proceedings and he, he spoke, Ayelet connected us and he asked me to tell me that Jacky Ben-Zaken wanted to meet me and not much more. I might have understood that it was important to him, maybe to take care of Jacky Ben-Zaken's interests, and I made it clear that I would be happy to meet him and that everything I would do in this meeting would be according to the procedures and laws that oblige me to do everything" (Prov. p. 296, s. 16).
Mimran described Azoulay's various requests, referred to the way he saw these requests, and in the process, clarified once again the nature of the conversation that Ben-Eliezer had with him:
"I see Ayelet's request as if she came, as if she came on behalf of the minister, she actually represents the minister's approach, that's how I saw things and that's how I treated them. Perhaps this was also strengthened by the fact that the minister also spoke to me once and told me that I would try to help Jacky Ben-Zaken. It wasn't hard to understand that this was the spirit of the matter, and it was such a hint that I would try to help Jacky Ben-Zaken" (Prov. p. 297, s. 25).
- I looked at the typed statement, watched the interrogation documentation, and gave my opinion to Mimran's words in court and the manner in which they were delivered.
After I did so, I saw fit to adopt Mimran's words regarding the conversation that Ben-Eliezer had with him, in which the latter asked him to assist Ben-Zaken in the context of the request to transfer the drilling rights. I do not believe that Mimran had any interest in incriminating Ben-Eliezer or giving an inauthentic version of the question of Ben-Eliezer's involvement and Azoulay's involvement, and I am under the impression that he did everything possible to make his testimony accurate both in the interrogation and in court. I also got the impression that we are not dealing with a person who tried to please his interrogators in one way or another, and it seems to me that this impression was even the lot of the parties when Mimran testified during the trial. The fact that, according to all parties, Mimran "did not deliver the goods" and did not give Ben-Zaken preferential treatment also strengthens the conclusion regarding his "ability to stand", his credibility and integrity.
- In its summary, the defense made a comprehensive comparison between the typed statement and the transcript of the interrogation, and it should be noted that this comparison raises difficult questions as to the manner in which Investigator Biton's words were typed. The defense summaries are full of examples of qualifying or clarifying sentences uttered by Mimran (and documented in the transcript of the interrogation), and these, for some reason, did not find their way into the typed statement. Although I agree that when we are dealing with a recorded interrogation, the interrogator's duty to be precise in typing every sentence uttered by the interrogee is more limited, it seems that in the present case, and hence the wonder, the vast majority of the sentences that were uttered by Mimran and not typed, are qualitative and clarifying sentences, and not decisive and incriminating sentences, which actually found their way into the typed statement. I will add what seems obvious because In the case of a documented and recorded interrogation, In which the duty of accuracy is more limited, The typed summary of the statement must reflect the main points of the investigation as conducted, Including objectionable statements by the interrogee.
Still, since the transcript of the interrogation was placed before me, and it was possible to watch the CD of Mimran's conduct, I do not believe that there is any question that the evidentiary implications were detailed.
- In the same context, I did not see fit to accept the defense's argument regarding the effect of the discrepancies between the typed interrogation and the transcript of the interrogation on Mimran's testimony in court. I do not believe that the fact that Mimran's memory was refreshed (before his testimony) was carried out mainly on the basis of the typed message and not on the basis of the transcript, created a feeling in his heart that he must "adhere to his incriminating version," whereas in practice, if he had examined the transcript, he would have discovered that he had denied any intervention on Ben-Eliezer's behalf and gave a different testimony than the one he gave. Beyond the fact that in the advanced stages of his interrogation, as appears from the transcript of the interrogation, Mimran referred to that conversation with Ben-Eliezer, I did not get the impression that we were dealing with a "weak" person or one who gives feelings (including a sense of "obligation") to lead him to a situation in which he would give inauthentic testimony.
Needless to say, the description given by Mimran about Azoulay's request to "meet with Ben-Zaken" is also consistent with the evidence regarding Azoulay's assistance to Ben-Zaken in promoting a meeting with Noble Energy people.
- The fact that Ben-Eliezer's version of events was not part of the trial necessitates a careful approach in determining factual findings about his actions (certainly actions of a tangling hue), and I still thought it necessary to adopt Mimran's testimony and determine on its basis that Ben-Eliezer approached Mimran in order to assist Ben-Zaken in handling the application for the transfer of drilling rights. Even if Ben-Eliezer did not use very direct language, the improper message regarding "helping Ben-Zaken" was conveyed by him and absorbed by Mimran (who acted lawfully, and did not grant any relief to Ben-Zaken and the company of Shemen).
Did the defendant know about the "Ben-Eliezer-Mimran" conversation?
- As I explained in the section that dealt with the analysis of the three basic issues – even though the defendant held an economic interest in the transfer of the drilling rights, and Ben-Eliezer took an action to promote that interest, there is no room to conclude "automatically", with the certainty required in a criminal trial, that that action was carried out with the knowledge of the defendant. As stated, this caution is required in view of the characterization of the conduct of the partnership between the defendant and Ben-Zaken, and especially in view of the independent axis that was created between Azoulay and Ben-Zaken (who, like his partner, held the same economic interest), an axis that was proven to be willing to carry out "independent" improper actions that amounted to a criminal offense. I want to say that my determination as to the existence of a conversation between Ben-Eliezer and Mimran, in and of itself, does not prove that the defendant was aware, in real time or retroactively, of those messages that were conveyed to Mimran, and concrete evidence must be sought to prove his knowledge.
- In paragraphs 141-145 of the prosecution's summaries, the prosecution referred to the existing infrastructure, according to it, from which it is possible to learn about the defendant's awareness of the "Mimran-Ben-Eliezer conversation". This foundation is based mainly on two pillars: (a) evidence presented regarding the defendant's knowledge and update of the difficulties created in the application for the transfer of drilling rights in general, and his knowledge that Mimran is a "key figure" in particular; (b) The proximity of the time between the date of the "Ben-Eliezer-Mimran" conversation (which is not known exactly) and the date of the transfer of the money to Ben-Eliezer (September 26, 2011).
- An examination of the foundations on which the prosecution bases its argument regarding the "defendant's awareness" teaches, already at a glance, that there is no direct evidence or evidence of significant weight to prove what it claims. In fact, the prosecution argued that it was sufficient to prove the defendant's knowledge of the difficulties in the transfer of the drilling rights and the role of Mimran, and to prove the transfer of the money to Ben-Eliezer, in order to lead to a determination regarding his awareness of the "Ben-Eliezer-Mimran" conversation.
I cannot accept this position, for the following reasons: