It should be emphasized: the question is not what the court intended, subjectively, to say and propose (this was discussed by my colleagues and I also stood above), but rather what could have been understood, objectively, from what was said, as they were said.
I re-examined the minutes of the hearing of September 18, 2024, and I did not find that an objective reading of the matter, as it was said, establishes a conclusion that the court proposed an arrangement to which both parties must agree and that the manner in which the Respondent understood the matter was erroneous.
A perusal of the transcript shows that my colleague, the Y. Elron, emphasized and reiterated in his remarks, at the end of the hearing on September 18, 2024, that his appeal to the Respondent was made not because he had decided to reject her request to convict the Applicant of the offenses of fraud and indecent act of fraud. On the practical level, what was requested was for the respondent to consider its position regarding the conviction of the applicant for the offences of rape by fraud and indecent act by fraud, and to give its position. I did not find any statement regarding an agreed arrangement that both parties should agree to.
The same is true of the words of my colleague, the judge א' שטיין, which are mentioned by him in his opinion and which were quoted above, and I will quote them again below:
"Well, ma'am, there are two issues to address, one, that's the very matter if you stand by everything we've heard, which both the length of the proceeding has to be taken into account, as well as the issue of 216. Could it be that you are not interested? So if you're not interested? So we're not interested either."
Even these words (which are also addressed to the respondent's counsel and not to both parties), to the best of my understanding, do not fit better with the subjective intention of the court than with the manner in which they were understood by the respondent.
To the aforesaid must be added a fact that is also not without weight: both parties, both the Respondent and the Applicant, who are of course in an inherent conflict of interest in the framework of the proceeding, understood the matter in the manner in which they were understood by the Respondent. Moreover, this was the understanding of both parties not only after the hearing of September 18, 2024, but also after the judgment in the appeal was rendered and until the hearing before us of the cancellation request (and the committee, in general).
- Having discussed above the fault (in presenting the court's proposal at the end of the hearing of September 18, 2024), and the mistake that led to it (in understanding the respondent's position in its notice of September 26, 2024), the time has come to decide the question that is, in my opinion, as I noted at the beginning of my opinion, at the center of the discussion: How should we act once the above fault and mistake were discovered, unfortunately?
In my view, as a rule, we must make an effort, within the scope of our authority, to correct the mistake by way of determining an outcome that corresponds to what would have been ruled had it not been for the mistake (and at the very least, as close as possible to that result).