Moreover, in the circumstances of the present case, we are not dealing with a "normal" situation in which the appellate court is considering convicting of offenses that are different or even more serious than those that the accuser sought to convict, but rather in a situation where, in the course of the hearing of the appeal, the respondent expressly retracts her request to convict of the more serious offenses (in the circumstances of the case at hand - rape by fraud and indecent act by fraud). In these unique circumstances, I am of the opinion that there is doubt as to whether the appellate court is competent to convict the defendant of the offenses from which the accuser retracted, and I will explain.
Section 94(a) The Criminal Procedure Law states that: "If a prosecutor withdraws an indictment before the defendant responds to the charge, the court shall cancel the charge; If he subsequently retracts it, the court will acquit the defendant of the same charge" (emphasis added - 10:20). The wording of this section indisputably indicates that if the accuser had retracted her request to convict the applicant of rape by fraud and indecent act by fraud before the District Court, after the Applicant had replied to the charges of these offenses, then the District Court would have had no choice but to acquit the Applicant of these charges (see: Criminal Appeal 623/79 State of Israel v. AbutbulIsrSC 34(3) 627, 630 (1980); Yaakov Kedmi, on criminal procedure - Part Two - Post-Indictment Proceedings - A 951, 9513-951 (2009)).
In his judgment inCriminal Appeal 583/77 State of Israel v. Avni, IsrSC 32(1) 472 (1978) (hereinafter: The Avni Matter), the President referred to Y. Sussman to the possibility of convicting a defendant of an offense for which the accuser withdrew the motion to convict him, after the defendant's response was heard, based on Article 166 of the Criminal Procedure Law, 5725-1965 (hereinafter: The Old Criminal Procedure Law), which stated that: "The court may convict a defendant of an offense for which his guilt was revealed from the facts that were proven before him, even if these offenses were not alleged in the indictment, provided that the defendant was given a reasonable opportunity to defend himself(Today, this arrangement, as to the jurisdiction of the trial court, is fixed Section 184 to the Criminal Procedure Law, in its current version). The President Y. Sussman He rejected the aforementioned possibility, stating the following: