On the other hand, inCriminal Appeal 608/81 Suissa v. State of Israel, IsrSC 37(1) 477 (1983) (hereinafter: The Suissa Affair), in addition to accepting the defendant's appeal against his conviction for the offense of escaping from legal custody, this court ruled that the defendant could be convicted of the offense of violating a legal provision, even though it was deleted from the indictment, with the consent of the prosecution, on the basis of a preliminary argument made at the beginning of the trial, on the basis of Article 166 In the old Criminal Procedure Law, and in the judgment in the additional hearing held on this judgment, this result was not reversed (see: 5/83 FURTHER HEARING State of Israel v. Suissa, IsrSC 38(4) 701 (1984)).
However, it should be noted that in the judgment in the Suissa In the additional hearing held in his case, the main dispute concerned the legal definition of the term "legal custody" for the purpose of convicting the defendant of the offense of escaping from legal custody, and not his alternative conviction for the offense of violating a legal provision that was deleted from the indictment. Therefore, no hearing was held on the difficulty in convicting a person convicted of this offense in light of the Article 84 of the old Procedure Law, and in any case this section, as well as the judgments in the matter of Avni And in the matter Kiryati, were not mentioned at all in the judgment on the matter Suissa and in the additional hearing held in his case.
Thus, against the background of the aforesaid, it seems to me that the question is whether we are authorized to convict the applicant of the offenses of rape by fraud and fraudulent act, after the accuser has retracted her request to convict the applicant of them, by virtue of the enshrined authority Section 216 The Criminal Procedure Law is not simple and the answer to it is not self-evident.
In any event, even if it is assumed that the appellate court is authorized to be harsh with a defendant and convict him of an offense for which the accuser expressly retracted her request to convict him, in my opinion it is clear that the use of this power is reserved for extreme situations in which there is a significant and substantial gap between the position of the accuser and the position of the appellate court regarding the proper and correct outcome, and in circumstances where, for this reason, the court's view is that in that case there is a significant public interest not to respect the position of the accuser.