To be precise: I do not retract my agreement to the judgment given in the appeal. The judgment seems to me, even today, to be correct. I am still convinced that it should be corrected, substantially, in light of the mistake that was made, and I am still of the opinion that the result whereby the applicant will not be convicted of the offences of rape by fraud but of the offence of assault, is not a result that cannot be agreed with.
To this must be added the circumstances of the legal torture caused to the applicant. The Applicant was subjected to real legal torture even before the hearing of the appeal, and since then the legal torture caused to the Applicant as a result of the course of events in the framework of the appeal has been added, including the significant period of time in which the Applicant believed that the sword of the conviction for the sexual offenses had already fallen over his head (a legal torture that the Respondent does not dispute either).
B.2. The Authority to Amend
- Section 81 of the Courts Law provides as follows:
- If a court finds that there has been an error in a judgment or in any other decision it has given, it may, within twenty-one days from the date of its rendering, correct it by a reasoned decision, and it may hear the arguments of the parties in this matter; In this regard, a "mistake" - a mistake in language, an error in calculation, a slip of the pen, an accidental omission, a random addition of something, and the like.
- With the consent of the parties, the court may decide at any time on any amendment in a judgment or other decision it has given.
- [...].
- [...]".
There is no dispute that what is requested in the application for cancellation in this case deviates from the correction of an "error" as defined In the section 81(A) above (see: Civil Appeal Authority 8677/23 Asraf v. Malul, paragraph 15 and the many references therein [Nevo] (March 18, 2024)). The question is whether the provision of Section 81(II) 30The Courts Law, which gives the court the authority to amend "At any time [...] Any repair...". This authority is conditional "With the consent of the parties", and the question is whether, in our case, such consent was given. In my opinion, this question can be answered in the affirmative, for the reasons that will be detailed below.
- Even before we come to the examination of the circumstances at hand, we must answer another preliminary question: What should the "consent of the parties" required in section 81(b) of the Courts Law relate, does the court have the authority to amend the judgment or perhaps also to the requested amendment itself? In other words: when the parties agree that an amendment request will be heard on its merits and the court decides on it in accordance with its discretion, However, they remain divided on the matter requested in the request for amendment, whether the court acquires jurisdiction under section 81(b) or not?
I discussed this question in my judgment inCivil Appeal 8227/20 Kassirer v. Amsalem [Nevo] (July 12, 2023), and I noted that: "My inclination is to adopt the approach that it is sufficient that the parties have agreed to authorize the court to carry out a substantive amendment, and that there is no need for agreement on the content of the amendment" (Name, at paragraph 49). Below I will detail my reasons for this.