"... I ask him, I ask him about the characteristics, and I tell him who, who can talk about it, who can talk about it, and then I get it, and then and only then do we talk about witnesses and I get the names and I ask what anyone can do" (Prov. p. 1548, s. 27).
- Even if there is no reason whatsoever for which the testimony of the defendant's counsel in the tax appeal should be questioned, according to which they were the ones who chose Ben-Eliezer from the list of potential witnesses that was formulated together with him, and even if I am willing to assume that the selection of his counsel was based mainly on professional considerations relating to the content of the testimony, I cannot accept the defense's "distancing" conclusion with regard to the defendant's involvement and especially with regard to his state of mind.
I will explain:
The defendant's awareness of the possibility that the tax proceedings would require the presentation of evidence and testimonies, and his understanding that Ben-Eliezer could serve as an effective witness, were crystallized at the end of 2010, even before Ben-Eliezer's name came up as a potential witness "officially" (during the meetings with Adv. Sharon).
The aforesaid is prima facie sufficient to make the manner in which Ben-Eliezer was chosen from a "potential witness" to an "actual witness" in 2013 of little weight, but the manner of selection is also consistent with my conclusion regarding the defendant's interest that a person like Ben-Eliezer should support his claims.
There is no dispute that during the meetings with Adv. Sharon, it was the defendant who brought up Ben-Eliezer's name as a potential witness, without claiming that he had made a "preliminary inquiry" with him about his willingness to testify, and even before he sent his attorney to him for the purpose of formulating the affidavit. This action can be seen as reflecting the defendant's confidence that Ben-Eliezer, a busy man by all accounts, would cooperate in the submission of an affidavit and later in the submission of testimony in the legal proceeding.