"It appears that the Applicant is proceeding from the assumption that the Respondent wishes to retract the notice she submitted on September 26, 2024, in which she informed the court that she no longer insists on the request to convict the Applicant of the offenses of rape by fraud and indecent act by fraud. The Respondent will reiterate and clarify what was said on its behalf orally in the hearing on July 1, 2025, and it was even written in its response that the Respondent does not retract what is stated in this notice."
Second: As I noted in my opinion (paragraph 23 above), it was certainly possible to understand what was said by the court at the end of the hearing of September 18, 2024, as they were said, in the manner in which they were understood by the Respondent (as well as by the Applicant).
- My colleague, Justice Elron, at the end of his opinion (paragraph 6), wishes to draw a lesson from the circumstances of the case at hand, which is centered on the limitation of the parties to respond to the court's proposal. This is in accordance with his view that what happened in our case was a proposal by the court, which the parties misunderstood and responded to as they did, instead of answering whether they accept or reject the court's proposal. However, these are not, in my view, the circumstances of the matter at hand, as they are reflected (and I will say again that this is the case, unfortunately) from the court's minutes.
C.2. The Supplement to the Opinion of My colleague, Justice E. Stein
- My colleague, Justice Stein, notes that I do not dispute (and in his view I cannot disagree) about our authority to render the judgment given in the appeal, in light of the existence of a clear ruling on the issue. In this regard, I would like to clarify: I do not dispute the authority of an appellate court to convict any offense that emerges from the facts of the case, even when the appellate court was not asked by the accuser to convict of that offense. On the other hand, as to the question of the existence of such authority when the accuser, in the framework of the appeal, expressly retracts her request to convict of a certain offense - in my opinion there is doubt (see paragraph 27 of my opinion above and the references therein).
- My friend, the judge א' שטייןnotes that during the hearing that took place on September 18, 2024, it was made clear to the parties that we had decided to convict the applicant "at least" of the offense of assault, and that the possibility that the appeal would be dismissed in its entirety and that the acquittal judgment would remain in place, was not on the agenda at all. On the basis of the aforesaid, my colleague argues that the parties should have understood that they were offered to reach an arrangement of waiving the request to be convicted of the offenses of rape in exchange for agreeing to a conviction for the offense of assault. My colleague refers to quotes from the minutes of the hearing of September 18, 2024. I have examined those quotes and have not found in them an unequivocal and explicit statement as claimed by my colleague (and this, of course, and as I would like to reiterate, without casting, G-d forbid, the shadow of a doubt that this was the subjective intention of my colleague). Moreover, certainly no such statement was made by my colleague, the judge Elron, and not even by me.
Conclusion
- Had my opinion been heard, we would have accepted the applicant's request, in essence, in such a way that the authority granted to us, in the circumstances of the case, had been exercised in section 81(b) of the Courts Law together with section 216 of the Criminal Procedure Law, and we would amend the judgment given in the appeal in such a way that under the conviction of the applicant for fraudulent rape offenses, he would have been convicted of assault offenses under section 379 ofthe Penal Law.