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Serious Crimes Case (Tel Aviv) 14098-08-22 State of Israel v. Ashbir Tarkin - part 8

September 9, 2025
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In addition, the presumption of expectation can be applied to the offense of attempted murder: "The mental element required for the purpose of a conviction for an attempted offense is the mental element necessary for a conviction of the finished offense, together with the mental element of a purpose to commit that offense [...] This, in my opinion, does not detract from the substantive justification for making use of the rule of expectation" (Criminal Appeal 1599/08 Levinstein v.  State of Israel, paragraph 40 of the judgment of Justice Melcer (February 19, 2009)).

See also in this context the words of the Supreme Court in a criminal appeal 10025/16 Anonymous v.  State of Israel, paragraphs 23-24 (August 10, 2017):

"However, the depths of a person's soul and the secrets of his heart cannot always be proven by direct evidence.  In light of the inherent difficulty in the requirement to prove that a person wished for the death of another, a 'presumption of intent' was developed in the case law of this Court, according to which a person is presumed to have intended the natural consequences of his actions (Criminal Appeal 8667/10 Nijim v.  State of Israel (December 27, 2012); Criminal Appeal 686/80 Siman Tov v.  State of Israel, IsrSC 36(2) 253 (1982)).  The presumption of intent is not an absolute presumption, and the defendant has the option of contradicting it if he succeeds in raising a reasonable doubt by presenting a probable alternative conclusion or presenting evidence that contradicts the presumption (Criminal Appeal 2592/15 Anonymous v.  State of Israel (July 6, 2016); Criminal Appeal 5031/01 Anonymous v.  State of Israel, 57(6) 625 (2003)).  However, where the defendant fails to raise a reasonable doubt as to the intention he had, the presumption of intent becomes concrete and conclusive evidence of the defendant's intent (see, for example: Criminal Appeal 4655/12 Edri v.  State of Israel (September 29, 2014); Criminal Appeal 1474/14 in a Certain Case).  It should be noted that this presumption is also valid in the offense of attempted murder, when an act was committed that could have caused a fatal outcome, even if for reasons that are not dependent on the defendant this outcome was ultimately prevented (Criminal Appeal 690/10 Abu Tia v.  State of Israel (August 6, 2013)). 

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