The same is true in the case at hand: I agreed to join the opinion of my colleague, the judge א' שטיין, in the judgment in the appeal, since I was of the opinion that we are in the first state of affairs. In this regard, it was discovered that I was wrong (as did my colleagues), since in practice the situation was the second situation (the respondent's unconditional repetition of her request to convict the applicant of the offences of rape). I would not have acted in such a situation in which the respondent unconditionally retracts her request to convict the applicant of the offences of rape, as it turns out that the circumstances were in practice. I wish to correct this mistake.
- My colleague, Justice Elron, writes the following in his opinion:
"When things are clear, we should not deal with theoretical assumptions and possible scenarios: we have before us concrete facts, concrete circumstances, a concrete respondent and concrete victims. It is not 'in the air' to decide, but in any mind, when our feet are planted in the ground."
To these words (which were apparently written as a criticism of my position that when an error is discovered, an effort should be made to correct it by way of determining a result that would have been consistent with what would have been ruled had it not been for the error, and see paragraph 24 of my opinion above), I agree: the matter is indeed "clear" and was clarified above - the error in the factual perception of the circumstances is a concrete fact and the circumstances, as detailed above, are concrete (and extremely rare) circumstances relating to concrete parties. Of course, I also accept that a decision must be made, when such circumstances are revealed with no mind, when our feet are planted in the ground.
The question is, of course, what is that proper decision? My colleague considers the fact that the respondent retracted her request to convict the respondent of rape offenses as "technical", and even seeks to enlist the position of the victims of the offense for this purpose (paragraph 6 of his opinion). My opinion is different.
- My colleague, Justice Elron, describes in his opinion the circumstances of the matter as circumstances centered on the respondent's mistake both in understanding the proposal proposed by the court and in formulating its position of September 26, 2024 as a result. Therefore, according to my colleague, what must be corrected is the respondent's mistake (by ignoring the respondent's position as if it did not exist), and in any event, in his view, it is inconceivable that such a mistake by the respondent would justify accepting the application before us. My view of the circumstances is different, and so is the conclusion that is required from them.
First And most importantly: as I emphasized in my opinion above (paragraphs 17, 20 and 23 above), the Respondent itself does not make this claim, even in retrospect. Indeed, the Respondent could have claimed that it was wrong and it wishes to retract its position in its notice of September 26, 2024. However, the Respondent did not do so, and in her response of August 21, 2025, she even emphasized, "in Rachel, your little daughter", the following: