76 V. THE SECOND GROUND OF CROSS-APPEAL BY THE PROSECUTION: THE FINDING OF INSUFFICIENT EVIDENCE OF PARTICIPATION IN THE KILLINGS IN JASKI]I A. Submissions of the Parties 1. The Prosecution case 172. The Prosecution’s second ground of cross-appeal is: The Trial Chamber, at page 132 para 373 [of the Judgement], erred when it decided that it could not, on the evidence before it, be satisfied beyond reasonable doubt that the accused had any part of the killing of the five men or any of them, from the village of Jaski}i. 206 173. The Prosecution fully accepts the findings of fact of the Trial Chamber, 207 but makes two submissions. First, it submits that, on the basis of the said facts, the Trial Chamber has misdirected itself on the application of the law on the standard of proof beyond reasonable doubt. Secondly, it contends that in determining that the Prosecution did not meet the burden of proof, the Trial Chamber misdirected itself on the application of the common purpose doctrine. 208 174. In relation to the first error, the Prosecution submits that the only reasonable conclusion to be drawn from the facts found by the Trial Chamber is that of guilt. 209 The test for proof beyond reasonable doubt is that “the proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair or rational hypothesis which may be derived from the evidence, except that of guilt.”210 According to the Prosecution, the Trial Chamber’s hypothesis that it was a “distinct possibility that the killing of the five victims may have been the act of a quite distinct group of armed men”211 is not fair or 206 Cross-Appellant’s Brief, para. 3.6. T. 169 (20 April 1999). 208 T. 170 (20 April 1999). 209 T. 176 (20 April 1999). 210 Cross-Appellant’s Brief, para. 3.12. 211 Judgement, para. 373. 207 Case No.: -94-1-A 15 July 1999