Judge
Judge Yechiel Kasher:
- Unfortunately, I cannot join the opinions of my friends.
In my view, at the center of the decision required in the application before us is not a question as to the scope of the powers of an appellate court in a criminal appeal, nor is there any dilemma regarding the preference of "truth" over "procedure". The question before us, in my opinion, is how this court should act when it turns out that, unfortunately, there was a mistake in its action and a malfunction was caused in the proceedings before it.
Since this, in my opinion, is the question at the center of the discussion, my opinion is that the application should be granted.
I will discuss the reasons for my aforesaid position below, but before that there is no choice but to provide a factual review, which, even after an effort to reduce its scope, is not short.
- Factual Review
A.1. Until the hearing of the appeal
- The applicant (the respondent in the appeal) is a gynecologist, and on December 20, 2018, an indictment was filed against him, in the Jerusalem District Court (Serious Crimes Case 47123-12-18, [Nevo] , hereinafter: the indictment). The indictment included three charges, in which the applicant was accused of sexual offenses that he allegedly committed against three of his patients (each charge related to a different patient). After one of the patients refused to testify, two of the charges remained. In one of the charges, the applicant was charged with fraudulent rape (several offenses) and indecent act by fraud (several offenses), and in the second - fraudulent rape.
- On December 27, 2022, the Jerusalem District Court issued a judgment acquitting the applicant, according to the opinion of all three judges on the panel, of any guilt.
The reasons of the three judges of the District Court were detailed in the opinion of my colleague, the judge A' שטיין, in our judgment of March 23, 2025. For the purpose of this decision, it is sufficient to point out one central fact: all three judges of the panel ruled that it has not been proven that the applicant committed the acts attributed to him for the purpose of sexual stimulation or gratification, and that there is, at least a reasonable doubt, that the applicant committed the acts in order to benefit the patients.