Shimon assessed that the file documented in the video of Sikh Jarrah, which the two men carry on their backs alternately, was the file he saw with the defendant, even though he was not sure of it, and in his words: "I saw it in Haim's case, I am not sure, I don't know if it is it" (P/67A, p. 15, line 362; and P/69A, p. 25, lines 653-654).
- Shimon therefore described the preparations made by the defendant for the incident - stocking up on fuel and beer bottles, as well as his and the defendant's walking route toward the Western Wall until they parted on 10 October 2023 in the early hours of the morning, carrying a backpack alternately. Shimon also described that he was aware of the defendant's intentions to throw Molotov cocktails, and that he tried to dissuade the defendant from doing so.
- In his testimony in court, Shimon chose to remain silent and not give a version, and in fact to all the questions he was asked, he gave the same answer: "In light of the fact that my trial is being conducted, I have no intention of speaking" (pp. 21-25, 28-30 of the minutes of the hearing of February 2, 2025).
I prefer the version that Shimon gave in his interrogations to the answers he gave in his testimony in court.
Shimon gave his version in his interrogations with the police about a month after the incident in Sheikh Jarrah, while the impressions of the incident were still tangible and fresh. The version that he gave in his statements to the police was honest and reliable, and with the exception of his first interrogation on November 8, 2023, in which he maintained his right to remain silent, in fact in all his other interrogations Shimon recounted a consistent and systematic version. Shimon coherently repeated the main points of his version throughout all of his interrogations, using similar descriptions. No significant discrepancies were discovered between the versions he gave in his interrogations, and he did not add material details from interrogation to interrogation. It was clear that Shimon did not exaggerate the description of the acts, and did not give an exaggerated version. Shimon was precise in his words, distinguishing between matters that he knew and matters that he did not know. Moreover, there was no indication of pressure exerted on Shimon during his police interrogations, and no one raised a claim on the matter in his testimony in court. Nor was there a reason for Shimon to incriminate the defendant in vain. No evidence of any dispute between Shimon and the defendant was presented. On the contrary, in his interrogations Shimon emphasized his sympathy for the defendant, for example, when he explained his choice not to report the defendant earlier because the defendant "is a good person." This strengthens the impression that Shimon was indeed telling the truth when he gave his version to the police.
- As for Shimon's testimony in court, Shimon chose not to give a version and not to answer the questions he was asked, while making it clear that he did not intend to cooperate with any of the parties, and that the reason for his refusal to answer the questions presented to him was the fact that his trial was underway. Shimon did not confirm or deny the version he gave in his interrogations with the police. He did not object to the version he detailed in his interrogations, and did not give any other version in its place.
Therefore, and in view of the fulfillment of the other conditions for the admissibility of his statement outside of court (the statement was proven and the testimony in court is substantially different from the statement), the original version given by Shimon in his interrogations should be preferred to his silence in court, and his original version can be accepted as evidence.
- I cannot accept the defense's argument that since Shimon chose not to answer the questions presented to him, the parties were not given the opportunity to cross-examine him in accordance with section 10a(a)(2) of the Evidence Ordinance. Shimon's refusal to answer questions in his interrogation in court does not change his status as a "witness in the trial", for the parties were given an opportunity to cross-examine him, and Shimon's mere presence on the witness stand is sufficient to fulfill this requirement (cf. Additional Criminal Hearing 4390/91 State of Israel v. Haj Yahya, 47(3) 661, 679-681 (1993); Criminal Appeal 4763/11 Yaacobi v. State of Israel, para. 48 (May 20, 2014); Criminal Appeal 7679/14 Zahadeh v. State of Israel, para. 46 (August 15, 2016); Criminal Appeal 5268/17 Schwish v. State of Israel, para. 83 (February 16, 2022)).
- Reinforcement of the version given by Shimon in his interrogations with the police can be found in the video of Sheikh Jarrah and in the footage of the two men walking towards the Western Wall and back, and then in the direction of Sheikh Jarrah, until they parted. Shimon's descriptions of the joint walking route with the defendant, the hoodie that Shimon wore under the defendant's instructions, as well as the backpack that the two carried alternately - are consistent with the documentation in the video of Sikh Jarrah.
In his police interrogations, Shimon identified himself and the defendant as the men documented in the video of Sheikh Jarrah (P/66, line 37; P/67A, p. 9, lines 207-208; p. 16, line 397). Indeed, at certain points throughout the video, the faces and body types of the two men documented at the beginning of the security camera video can be seen relatively clearly. It is possible to get the impression that the lower of the two is similar in his body characteristics and face to Shimon and that the higher of the two is similar in his body characteristics and face to the defendant (03:27:06; 03:27:20).