"The respondent shall, if necessary, complete a written argument regarding the applicability of the aforementioned section 216 in connection with the offense of assault by October 3, 2024 at 09:00" (emphasis added - Y.K.).
The Applicant therefore did not refrain from arguing regarding his conviction for the offense of fraudulent rape due to his reliance, as it were, on the Respondent's notice of September 26, 2024. This is for the simple reason that the applicant was not granted, in any event, an additional right to argue in this matter.
It should be clarified, however, that there is no dispute that the Applicant, as claimed by him, was subjected to significant legal torture, since he thought and was entitled to believe, after the Respondent's notice from September 26, 2024 until the judgment in the appeal, that he no longer faces the risk of being convicted of the offenses of rape by fraud and of indecent act by fraud (but, at most, of the offense of assault).
- As stated, the legal point of departure in my colleague's opinion is that in accordance with section 216 of the Criminal Procedure Law, an appellate court is empowered to convict of any offense that emerges from the facts of the case, even if he was not asked by the accuser to convict of that offense. In the opinion of my colleagues, since the authority to convict as aforesaid exists, and since the judgment in the appeal is correct on its merits, then the mistake that occurred prior to the judgment should not be given any weight.
The appellate court's authority to convict in a lawsuit even beyond what is alleged by the accuser is also at the center of the respondent's arguments before us, and it appears that the very existence of the law is not disputed by the applicant.
Still, in the case law of this Court it was held that: "The said authority is intended for exceptional and exceptional cases" (Additional Criminal Hearing 4603/97 Meshulam v. State of Israel, IsrSC 51(3) 160, 197 (1998)), and that although the court has the authority to convict a defendant of an offense more serious than that attributed to him by the accuser, the use of this power "...It should be done carefully and sparingly, and only in rare cases" (Criminal Appeal 6365/12 Anonymous v. State of Israel, IsrSC 66(3) 92, 134 (2013) (hereinafter: A Certain Matter); See also: Criminal Appeal 578/21 Abu Sarari v. State of Israel, paragraph 22 of the judge's judgment Y. Elron [Nevo] (16.2.2023); Criminal Appeal 9288/20 Anonymous v. State of Israel, paragraph 36 of the judge's judgment Y. Elron [Nevo] (May 26, 2022)). It seems to me that this position was not shared by my colleague, the judge א' שטיין, who noted in his opinion that: "As a rule, the court will not be harsh with the defendant beyond what he was asked to do by the prosecution, but, as stated, this rule retracts from the principle of truth: the court's authority and basic duty to render a true judgment" (Name, in paragraph 9).