The second is questions and comments that concern the fact that there could have been room to accuse the applicant of another offense (assault) and not of the offense of rape (see the words of the head of the panel, my colleague Justice). Y. Elron, on p. 6, line 18 of the transcript; The words of my colleague the judge א' שטיין on page 6, line 16, on page 9, lines 1-3 of the transcript, and my words on page 2, lines 36-38, and on page 8, lines 29-30 of the transcript), and even a reference to the possibility that this will be done in the framework of the appeal (the judge's words א' שטיין on p. 15, line 18 and lines 23-24).
- Subsequently, the oral arguments of the applicant's counsel were heard, which were contrasted, inter alia, with the approach that there can be no real dispute that the applicant deviated from the norm in the framework of gynecological treatment, and that the question in dispute relates only to the mental element (see p. 18, lines 28-29 of the transcript).
The Applicant's counsel was also asked to address the possibility that the Applicant will be convicted of another offense, in accordance with the jurisdiction of the Appellate Court under the Article 216 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (hereinafter: The Criminal Procedure Law) (and see p. 21, lines 16-25, and p. 23, lines 11-23, of the transcript). The position of counsel for the Applicant was that there is no place for this Court to exercise, in the framework of the present appeal, its jurisdiction under Article 216 of the Criminal Procedure Law.
Subsequently, when the respondent's arguments were heard, the respondent's counsel's position was that there was room, insofar as the court did not see fit to accept the appeal regarding the applicant's conviction for the offense of rape, to convict him of another offense using our authority according to Article 216 of the Criminal Procedure Law (and see p. 25, lines 12-15, lines 23-27 and lines 31-35, of the transcript).
- At this point in time, the head of the panel referred to the respondent's counsel the following:
"Now I have a question for you, I say it spontaneously, I haven't spoken to my friends right now about this, the question is, it's a problematic case. I myself speak for myself, I don't have an opinion one way or the other at this point, it's more to delve into the case, even though I've already read it twice. Still, is this the case in its circumstances, in its passage of time, in its totality of circumstances, perhaps we shouldn't do some second thinking if we need a ruling by this court? That's what I'm asking you. On this matter, maybe my friends will also agree with him on the matter?" (p. 25, line 36 to p. 26, line 2 of the transcript).