Indeed, as I noted above, it is also accepted by my colleagues that the power to be harsh with a defendant, in the framework of an appeal, beyond the position of the accuser, is reserved for special cases, and as a rule, an appellate court does not make use of this power (and in the words of my colleague, quoted above): "As a rule, the court will not be harsh with the defendant beyond what the prosecution is asked to do"). This is the case in theory and in practice: Cases in which an appeals court believes that there is a basis to be harsh with a defendant even beyond the accuser's position are not uncommon. On the other hand, cases in which the appellate court uses its authority to be harsh with the defendant beyond the accuser's position are extremely rare.
The conclusion that emerges from the aforesaid is that in the vast majority of cases, the appellate court does not view a situation in which it is possible to be harsh with the defendant beyond the accuser's arguments, as one that turns the judgment that will be given according to the accuser's position (and not beyond that) into a judgment that is ostensibly contrary to the duty of the appellate court to "render a true judgment" (paragraph 3 of my colleague's opinion).
- I am of the opinion that the circumstances at hand are clear circumstances in which there is no reason to make use of the power to convict of an offense more serious than that which the accuser (the respondent) claims, especially after the accuser explicitly retracted her request to convict of that offense.
My opinion above is even stronger than even when the respondent is aware of all the facts (including and especially with regard to what the court intended to propose at the end of the hearing of September 18, 2024), the respondent does not wish to retract its position and even emphasizes that it does not retract what was stated in its notice of September 26, 2024.
And that's the main thing - I am of the opinion that my conclusion above - that the circumstances at hand are clear circumstances in which the power to convict of an offense more serious than that claimed by the accuser (the respondent) - arises and is even required by the position of the court itselfThus, my colleagues and I do not disagree that what the court intended to offer the parties was to reach an agreement according to which the applicant would not be convicted of the offenses of rape by fraud and an indecent act by fraud, but only of the offense of assault.