Moot Court Memorial on behalf of Defence, Study notes of Criminal Law

Download Moot Court Memorial on behalf of Defence and more Study notes Criminal Law in PDF only on Docsity! IN THE HON’BLE HIGH COURT OF ZURU THE APPEAL FILED UNDER SECTION 186(B) OF ZURU INVESTIGATION DEPARTMENT AND CRIMINAL EVIDENCE ACT, 1975. IN CRIMINAL APPEAL NO: ____/ 2014 IN THE MATTER OF MR. MARKAS ...APPELLANT V. ZURU GOVERNMENT ...RESPONDENT WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT URN : 24 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 2 TABLE OF CONTENTS INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 STATEMENT OF ISSUES……..……………………… . .…………………………... . . .8 WRITTEN PLEADINGS……………………………………………………………… .9 1. MR MARKAS IS GUILTY OF THE OFFENCES OF CHEATING AND CRIMINAL CONSPIRACY [I.]THE EVIDENCE ON RECORD IS SUFFICIENT TO PROVE THE OFFENCES OF WHICH MR. MARKAS HAS BEEN CONVICTED……………………………………………………………….. [II]THE CONVICTION IS REASONABLE AS MENS REA AND ACTUS REUS PRESENT……………………………………………………………………………………….. [III]MR. MARKAS IS LIABLE FOR THE ACTIONS OF THE GROUP……………………...... 2. THE TRIAL COURT ORDER DISMISSING THE APPLICATION FOR ARRAIGNING MR. JOSEPH AS AN ACCUSED IS NOT ERRONEOUS IN LAW………………………………….…………………….. [I]MR. JOSEPH IS NOT AN ACCOMPLICE TO THE CRIMES OF CHEATING AND CRIMINAL CONSPIRACY………………………………………………………………………………….. [II]MR. JOSEPH‟S TESTIMONY PLAYED A CRUCIAL ROLE IN THE CONVICTION OF MR. MARKAS...……………………………………………………………………………………. [III] THE TESTIMONY OF MR. CORUM………………………………………………... PRAYER FOR RELIEF…………………………………..…………………………..25 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 5 5. J. F. B., The American Law Register (1852-1891) , Vol. 16, No. 12, New Series Volume 7 (Oct. - Nov., 1868), pp. 705-713 6. Jo Shaw, Jo Hunt & Chloe Wallace, Evidence Raymond Emson, p. 15, 4th Edition,(Palgrave Macmillan, 2006) 7. John H., Rule of Evidence in Trials at Law, 50, (Little, Brown and Company, Boston, 1910) 8. Murphy and Glover,Murphy On Evidence,252(Twelfth Edition, Oxford University Press,2011) 9. The Digest 17 (1st ed., Vol 14 (2), London Butterworths & Co. Ltd. 1993) 10. Wigmore, John H., The Principles of Judicial Proof: As given by Logic, Psychology and General Experience and Illustrated in Judicial Trials, 632, (Little, Brown and Company, 1913 C. IMPORTANT DEFINITIONS 1. Appellant for the purposes of this memorandum shall stand for „Mr. Markas‟ 2. Respondent for the purposes of this memorandum stands for „Zuru Government‟ D. DYNAMIC LINKS 1. www.indiankanoon.org 2. www.manupatra.com 3. www.westlawindia.com THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 6 STATEMENT OF JURISDICTION The Hon‟ble High Court of Zuru has the inherent jurisdiction to try, entertain and dispose off the present case by virtue of Section 186(b) of Zuru Investigation Department and Criminal Evidence Act, 1975. THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 7 STATEMENT OF FACTS 1. Iron ore was the single largest natural resource of the country Zuru and its mining was largely unorganised till the late 90‟s. 2. Zinga one of the most powerful groups of the country controlled 70% of the iron ore mining in the country through its web of companies. Mr. Markas, who came from a very modest background built the entire conglomerate. He was the Promoter of the Group. 3. Subsequently to de-monopolize the sector the Government passed an Executive Order i.e. the Iron ore mining policy 2003. 4. According to this policy, the Iron Ore reserves were divided into 15 blocks with a maximum of 20 permits per entity. To ensure that there was no monopolization in the sector, a clause was incorporated which read as “No single entity can either directly or through its companion entities hold more than 2 permits in the same block and a total of more than 20 permits in all the blocks”. 5. Zinga Group obtained its full quota of 20 permits through 4 companies of the Group. Mr. Markas was the promoter and hold 20% shares in each of those 4 companies. 6. In May, 2004 the permit holder of Benja Block surrendered its permits and fresh applications were invited. This block was extremely crucial for the successful commissioning of the Group‟s new steel plant which was closely located. 7. A company named Zipper was granted the permit for Benja Block. The Promoter- Director of Zipper was Mr. Abraham was was an ex employee of Mr. Markas. The General Manager of the company was Mr. Corum and the CEO was one Mr. Joseph 8. The High Court of Zuru on hearing the application by two unsuccessful; applicants of Benja Block quashed the permit and also directed the ZID to conduct a criminal investigation. In the Conclusion Report given by the ZID, Mr. Markas, Mr. Abraham, Zipper and the 4 companies of the Group were formally indicted for thye offences of cheating and criminal conspiracy. 9. On the basis of the depositions of Mr. Joseph and Mr. Corum, Mr. Markas was convicted for the offences of Cheating and Criminal conspiracy. 10. Also, Mr. Markas‟ application for summoning Mr. Joseph as an accused was dismissed by the Trial Court. The Appeals against both the decisions of the Trial Court now lie before the Hon‟ble High Court of Zuru. THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 10 requirements are envisaged in the Australian 4 , New Zealand 5 and American 6 jurisdictions. In the instant matter, the testimony of Mr. Joseph suffices this test of relevancy. The testimony taken within the context of the existing circumstances implicates the accused of the offences of cheating and criminal conspiracy. It makes the fact in issue, that is the involvement of the accused in the offences committed, more probable. Hence, it is submitted that the testimony is admissible and is relevant to the case at hand. [I.1.ii]THE TESTIMONY IS CONSISTENT WITH THE PRIOR STATEMENT OF THE WITNESS: In his deposition under § 51 of the Zuru Investigation Department and Evidence Act, 1975, Mr. Joseph had stated that he does not recall instructing Mr. Corum to sign the Undertaking as mandated by the Iron Ore Mining Policy, 2003. On his examination before the Court, he deposed that he had instructed Mr. Corum to sign the undertaking on the instructions of Mr. Abraham who in turn was acting on the directives of Mr. Markas. It is submitted that these statements are not inconsistent with each other. A simple test to determine the same is whether the two statements can stand together. To prove contradiction, as Wigmore 7 observes, „the witness must have given a contrary version on a prior occasion, we place his contradictory statements side by side, and, as both cannot be correct, we realize that in at least one of the two he must have spoken erroneously‟.Illustrating a general tendency in applied logic, Aristotle's law of non-contradiction states that "One cannot say of something that it is and that it is not in the same respect and at the same time." 8 It is submitted that this requirement is not met with in the instant matter. The two statements can very well stand together. It is therefore contended that the deposition of Mr. Joseph is not erroneous and is consistent with his prior statement. Furthermore, after his cross examination, Mr. Joseph was asked by the Court that why he failed to tell the ZID about the facts stated before the court to which Mr. Joseph replied that he was not questioned on these facts by the ZID. It is most respectfully submitted that „if the specific question is not asked, it cannot be disregarded.‟ 9 Hence, the testimony of Mr. Joseph cannot be disregarded on these grounds. 4 s.55 of the Australian Evidence Act, 1995 5 s.7(3) of the New Zealand Evidence Act, 2006 6 r.401 of the United States Federal Rules of Evidence 7 Wigmore, John H., The Principles of Judicial Proof: As given by Logic, Psychology and General Experience and Illustrated in Judicial Trials, 632, (Little, Brown and Company, 1913) 8 Irving Marmer Copi, Carl Cohen; An Introduction To Logic,(Prentice Hall of India Pvt Limited, 1998 ) 9 Munna v State of Rajasthan(2001) THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 11 [I.1.iii]THE TESTIMONY IS A CIRCUMSTANTIAL EVIDENCE OF FACTS: It the present case, the testimony of Mr. Joseph can be heeded as circumstantial evidence of a fact. In many cases 10 , the courts have admitted statements as circumstantial evidence of facts. The purpose of adducing the evidence is to invite an inference as to a matter thought to be implied in the statement. 11 Because the purpose of evidence is to establish the probability of the facts upon which the success of a party‟s case depends in law. 12 It is submitted that the testimony in question plays a very pertinent role in implicating the accused. The testimony aided by the circumstantial chain of events makes the role of the accused more probable in signing the permit quota clause and the conspiring of the entire episode. Hence, it is most humbly contended that Mr. Joseph‟s testimony evidences the criminal activities of the accused inter alia in a circumstantial manner. [I.1.iv]ARGUENDO, THE TESTIMONY FORMS A PART OF THE SURROUNDING CIRCUMSTANCES: §. 168 of Phipson on Evidence explains the rule of Res Gestae stating that acts, declarations, and incidents, which constitute, or accompany and explain, the fact or transaction in issue, are admissible, for or against either party. 13 Further §.185 explains the principle of Accompanying Facts within the framework of Res Gestae. These include incidences, which may not constitute the facts in issue, may yet be regarded as forming a part of it, in the sense that they accompany, and tend to explain, the main fact. Not only may considering its attendant circumstances test the probability of an occurrence 14 , but also these undersigned incidents are often essential to elucidate its true character, to reveal the motives of the parties or to establish their connection with the main fact. 15 Mr. Joseph stated that he had seen Mr. Markas and Mr. Abraham interacting on several occasions. It is submitted, without prejudice to the above contentions, that even if the testimony fails to implicate Mr. Markas on a direct basis, it is admissible and carries the requisite probative force under the res gestae rule. The testimony provides concrete evidence that several meetings between the accused and Mr. Abraham were held during the course of events which led to the indictments. The principle is that the events should be seen in the context of their surrounding circumstances and 10 Ratten v R [1972] AC 378; Woodhouse v Hall (1981) 72 Cr App R 39; cf. Roberts v DPP [1994] Crim LR 926 11 Murphy and Glover,Murphy On Evidence,252(Twelfth Edition, Oxford University Press,2011) 12 Supra 13 Buzzard, John, May, Richard, Howard, M.N., Phipson on Evidence, 63, (12th Edn, Sweet & Maxwell, London) 14 Dysart Peerage (1881) 6 App. Cas. 489 15 Supra, FN 13. P. 72 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 12 antecedents, and not in a factual vacuum. 16 These facts along with the circumstances, aid in proving the accused‟s guilt beyond a reasonable doubt. [I.1.v]THE TESTIMONY HAS THE ESSENTIAL PROBATIVE FORCE: To prove the factum probandum it is necessary that the evidence presented be cogent. The probative value of an item of relevant evidence is the extent to which the evidence affects the probability of the existence of a fact in issue. 17 The Trial Court befittingly relied upon the testimonies of Mr. Corum and Mr. Joseph to convict the accused. The testimonies carry the essential probative force with them. The inference derived from the testimonies discourse a significant impact in proving the guilt of the accused. Where knowledge cannot be acquired by means of actual and personal observation, there are but two modes by which the existence of a bygone fact can be ascertained : First, By information derived either immediately or mediately from those who had actual knowledge of the fact ; or, secondly, by means of inferences or conclusions drawn from other facts connected with the principal fact which can be sufficiently established. 18 Assertions of human beings are regarded as the basis of inference to the propositions asserted by them. 19 Hence, it is submitted that the testimony of Mr. Joseph amplifies the probability of the facts towards which it is directed and is cogent and has the weight necessary for the conviction of the accused. [I.2]THE CIRCUMSTANTIAL EVIDENCE IS CONCLUSIVE IN NATURE An item of circumstantial evidence is an evidentiary fact from which an inference may be drawn rendering the existence of a fact in issue more probable. 20 In court as elsewhere, the data cannot 'speak for itself'. It has to be interpreted in the light of the competing hypotheses put forward and against a background of knowledge and experience about the world. 21 In the present case, the plausibility of the hypothesis is conclusive in nature and leaves no reasonable doubt about the existence of any other hypothesis. The proposition to be proved in the instant matter is that the accused conspired to cheat and indeed committed the offence of cheating by fraudulently representing an untrue fact to be true. The testimony of Mr. Corum and Mr. Joseph essentially corroborated by the circumstances encompassing situation at hand successfully prove the factum probandum. 16 Supra, FN 11, p. 271 17 Supra, FN 2 18 Supra, FN 7, p. 7 19 Supra 20 Supra, FN 2, p. 9 21 Supra, FN 7, p. 15 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 15 the offences of Cheating and Criminal Conspiracy. It is submitted that the mens rea for both the crimes is present in the instant matter. [II.1.i] THE EXISTENCE OF A MOTIVE: The motive of the accused to set up Zipper was to obtain the permit for the Benja Block which was extremely beneficial and profitable for its new steel plant. The obtaining of this plant would have hiked up the profits of the accused in a consequential manner. It is contended as evidence, motive is always relevant. 30 Motive may be relevant to proof, the prosecution may prove the motive for a crime if it helps them to establish their case, as a matter of circumstantial evidence. 31 [II.1.ii]THERE IS EVIDENCE OF A DESIGN OR A PLAN: John H. Wigmore, Rule of Evidence in Trials at Law 32 , §. 266 Rule 59 states the General Principle when dealing with Evidence to Prove a Design or Plan. It states that whenever a person‟s design or plan to do an act is in issue, it may be evidenced circumstantially – (a) by his conduct or utterances indicating the design or plan, (b) Or, by the prior or subsequent existence of the design or plan. In Principles of Judicial Proof 33 it has further been explained that for establishing the existence of a design or plan two ingredients must be circumstantially explained. The first ingredient to be demonstrated before the court is the process of active deliberation by the accused. In this stage, the accused duly weighs the good and the evil, which may result from any action and consciously choose or decide upon a particular course with its attendant result. The second ingredient to be proved by the prosecution is resolution on part of the accused towards an action, which is seen to lead to a desired end. Resolution on its psychical side is equivalent to a complete process of volition. It may be added that resolution enters into all action, so far as this becomes complex, in the sense a prolonged activity, or a series of combined movements. Resolution implied maintenance of the idea an end that has been selected in furtherance of an opportunity. 34 Hence, it is submitted that two ingredients are being explained by the circumstantial hypothesis put forth by the Prosecution. [II.1.iii]THE EXISTENCE OF THE REQUIRED INTENTION: In furtherance of the opportunity the accused has resolved towards an action, which is seen to lead to a desired end. The most basic ingredient of the offence of cheating under § 230 of the Zuru Criminal Code is intent to 30 Williams (1986) 84Cr AppR 299,CA 31 Supra, FN 28, p. 75 32 Wigmore, John H., Rule of Evidence in Trials at Law, 50, (Little, Brown and Company, Boston, 1910) 33 Supra FN 7, 245 – 247 34 Supra, FN 7 .,See also Sully, James, The Human Mind, 1892, Vol II, 255 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 16 defraud. Intention forms the gist of the offence. Intention literally means a conscious movement with knowledge of the circumstances. 35 The mental element should require proof that the accused has personal awareness and has himself perceived the relevant circumstances and consequences comprising of the actus reus of the offence. 36 It is submitted that the accused had the knowledge as to the falsity of the Undertaking submitted under the Iron Ore Mining Policy. The accused was the acting mind of the Group, his intention are clearly prevalent from the evidence on record. As Viscount Haldane LC, “A corporation is an abstraction. It has no mind of its own anymore than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes maybe called an agent , but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.” 37 Everyone agrees that a person intends to cause a result if he acts with the purpose of doing so. 38 [II.2] THERE IS ACTUS REUS ON THE PART OF THE ACCUSED The physical element of a crime or behavior connected to the crime is called the actus reus. 39 A person must participate in all the acts necessary to constitute a particular crime in order to be guilty thereof. 40 In the present case, the accused was responsible for the alleged fraudulent representation and he conspired to do the same. [II.2.i]THERE HAS BEEN FRAUDULENT REPRESENTATION : The Permit was obtained by Zipper on the basis of a fraudulent representation that it was compliant with permit quota clause, therefore the offence of cheating. Making a false representation is the actus reus of fraud, but the element of falsity requires knowledge that the accused knew it was untrue or misleading 41 , which is the case in the instant matter. Moreover, it is not always possible to separate precisely actus reus from mens rea. 42 [II.2.i.a]THERE HAS BEEN DECEPTION: Deceiving means causing to believe what is false, or misleading as to matter of fact, or leading into error. The classic definition here is that „to 35 Supra, FN 28 36 Supra, FN 27, p. 104 37 Lennard‟s Carrying co. ltd v Asiatic Petroleum Co. Ltd. [1915] AC 8 713 38 Supra, FN 27, p. 106. 39 Supra, FN 27 40 Scott v. Com., Ky. 353, 197 S.W. 2d 774 (1946). 41 Supra, FN 28, p. 48 42 ACE Lynch, The Mental Element in the Actus Reus, (1982) 98 LQR 109 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 17 deceive is to induce a man to believe that a thing is true which is false.‟ 43 The offence of cheating is fortified since Zipper is proved to be a companion entity of the four permit holder companies of the Group. [II.2.i.b]THE FRAUDULENT REPRESENTATION IS ATTRIBUTABLE TO THE ACCUSED: It is a widely accepted principle of common law that the prosecution must prove that the accused by his own act caused the relevant result and it should be an intended causation. 44 § 320 of the ZID and Criminal Evidence Act, 1975 read with § 5 (e) of the Zuru Companies Act, 1956 renders that the accused is indeed responsible of the offences and the causation of the same can be attributed to him. [II.2.ii]ACTUS REUS INCLUDES CIRCUMSTANCES: The actus reus of a crime might be relatively minimal, and may even seem innocuous as in conspiracy where the actus reus comprises of an agreement. Further, the actus reus may include a set of circumstances or „state of affairs‟, not including any conduct or action by the accused at all. 45 In the instant matter, though it may be difficult to prove by direct evidence that there was an agreement to do an illegal act, the surrounding state of affairs which includes the testimony of Mr. Joseph prove that there had been a conspiracy to defraud. [II.2.iii]THERE IS COINCIDENCE BETWEEN ACTUS REUS AND MENS REA: Conspiracy is a crime where it is more difficult than usual to distinguish between actus reus and mens rea. The actus reus is said to be an agreement; but agreement is essentially a mental operation, though it may be manifested by or inferred from acts of some kind. 46 It is a continuing offence. It is committed not only when the agreement is first reached but continues as long as the agreement to effct the unlawful object continues. 47 Hence, there is a concurrence of the two elements in the instant case. [II.3]THE PROSECUTION HAS PROVED THE GUILT BEYOND REASONABLE DOUBT: It is submitted that as per the Law of Zuru, the burden of proof lies on the prosecution to establish the guilt of the accused beyond reasonable doubt. Halsbury‟s Laws of England maintains that prosecution should prove to full criminal standards any fact essential to 43 Per Buckley J, in Re London and Globe Finance Corporation Limited [1903] 1 Ch 728, at 732 44 Supra, FN 27 45 Supra, FN 28, p. 49, 63 46 Bolton(1991) 94 Cr. App R 74 at 80,per Wood LJ 47 Director of Public Prosecution v Doot, (1973) 1 All ER 940 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 20 corporation, the very ego and center of the personality of the corporation”. In the instant matter, it has been established that Mr. Markas is the face of the Group, he is the directing mind, the will of the corporation and thus is liable for the acts of the company in the capacity of the shadow director. It is humbly submitted that Mr Markas is an officer in default under clause (e) section 5 of the Zuru Companies Act, 1955 read with section 320 of the Zuru Investigation Department and Evidence act, 1975 is liable for the acts of the company in the capacity of a shadow director as well as the directing mind and will of the corporation. THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 21 2. THE TRIAL COURT ORDER DISMISSING THE APPLICATION FOR ARRAIGNING MR . JOSEPH AS AN ACCUSED IS NOT ERRONEOUS IN LAW The Trial Court relied majorly on the testimonies of Mr. Corum and Mr. Joseph to arrive at the conviction of Mr. Markas and the other accused. 61 In the instant matter, it is humbly submitted that summoning Mr. Joseph as an accused is merely a brilliantly veiled subterfuge of the appellants in order to suppress Mr. Joseph‟s testimony in its entirety. [I] MR. JOSEPH IS NOT AN ACCOMPLICE TO THE CRIMES OF CHEATING AND CRIMINAL CONSPIRACY It is humbly submitted before this Honorable court that the only way possible to summon Mr. Joseph as an accused would be to brand him as an „accomplice‟ to the crime. This can be substantiated by the fact that Mr. Joseph is a mere C.E.O of the company and as such has no exclusive power or authority vested in him to pull off a crime of this scale as a principal offender. It is humbly submitted that any such theory would be no better than an intriguing story. It is humbly submitted before this Hon‟ble bench that the term „accomplice‟ has been defined in the Black‟s Law dictionary as „An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites with him or her in the commission of the crime‟. 62 Thus, it can be observed from the definition that the person under consideration should satisfy three tests viz. knowing, acting voluntarily and finally sharing the same intent as that of the main accused. In the instant matter, it is humbly submitted that Mr. Joseph does not satisfy any of the three tests mentioned. Mr. Joseph has clearly mentioned in his testimony that he was acting on the instructions of Mr. Abraham who was superior to him. Thus it is put before this court that Mr. Joseph for simply following orders from his superior and did not „know‟ per se what was actually happening. Since it has already been established that Mr. Joseph was not aware of any crime happening in the first place, the question of his actions being „voluntary‟ do not rise at all. Arguendo, Mr. Joseph was merely doing his job by following his orders and hence it cannot be said he was acting „voluntarily‟. It is humbly 61 Moot Proposition Page 7 62 Henry Campbell Black, Black‟s Law dictionary (Sixth edition) page 17, Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964); Conner v. State, 531; S.W.2d 119 (Tenn. Crim. App. 1975);Smith v. State,Tenn.Cr.App,525 S.W.2d p674,676 THE K. K. LUTHRA MEMORIAL MOOT COURT, 2014 MEMORANDUM FOR THE RESPONDENT Page 22 submitted that if a person does not „know‟ that a crime is being committed and he is not acting voluntarily, there is absolutely no scope of the person sharing the same intent as that of the principal offender. It is thus humbly put before this court that Mr. Joseph does not satisfy the definition. [I.1] THE TESTIMONY OF AN ACCOMPLICE Without prejudice to the above argument, it is humbly submitted that it is a well-known principle in common law that the testimony of an „accomplice‟ must be corroborated. “If a witness was an accomplice in the crime, then his or her testimony must be corroborated. Corroborating evidence is that evidence, entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference not only that a crime has been committed but also that the defendant was implicated in it. This independent corroborative testimony must include some fact or circumstance that affects the defendant's identity.” 63 In the instant matter, even though Mr. Joseph‟s testimony is an essential piece of evidence having a strong probative force along with corroboration. However, it may be argued by opposing counsel that the testimony is not corroborated. This is the exact reason why an innocent man namely Mr. Joseph is being trapped and being made a victim of his own honesty. It would be the most perfect deception, however, there is only one piece missing, the most important one. Mr. Joseph is not an accomplice in the instant matter. [II]MR. JOSEPH‟S TESTIMONY PLAYED A CRUCIAL ROLE IN THE CONVICTION OF MR. MARKAS It is a well established fact that the Trial Court relied majorly on the testimonies of Mr. Corum and Mr. Joseph. Mr. Joseph‟s testimony, however, was the final nail in the coffin. Mr. Joseph‟s testimony substantiated various facts which complete the circumstantial chain of evidence produced before this Hon‟ble court which conclusively guaranteed a conviction for Mr. Markas. Mr. Joseph‟s testimony provided the following evidence:- 64 1. Mr. Joseph was acting under the instructions of Mr. Abraham. 2. Mr. Joseph also mentioned that he had seen Mr. Markas and Mr. Abraham interact on several occasions. [II.1] MR. JOSEPH‟S TESTIMONY READ WITH OTHER EVIDENCE ON RECORD 63 State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1963); Garton v. State,206 Tenn. 79, 332 S.W.2d 169 (1960); Hicks v. State, 126 Tenn. 359, 149 S.W. 1055 (1912); Hawkins v. State, 4 Tenn. Crim. App. 121, 469 S.W.2d 515 (1971). 64 Supra