Laville J:

In this case appellant was charged with another accused man in the alternative with knowingly being in possession of uncustomed tobacco or with knowingly conveying uncustomed tobacco. On these alternative charges, the other accused pleaded guilty to possession and the Court accepted his plea and convicted and fined him $5,000 or 15 months RI, and acquitted him on the other alternative charge.

Appellant claimed trial on both alternative charges.

In such charges the onus is laid by law on the accused to prove that the goods are duty paid (s 45, En 80) or that he did not know they were uncustomed (s 39(ii), En 80). The prosecution must prove that accused was in possession of the goods. In s. 39(i), when the charge is one of possession, the word 'konwingly' is redundant. One of the ingredients of possession is knowledge of the nature of the thing possessed by the alleged possessor and knowledge that it is within his powers and opportunity of disposal either exclusive to himself or jointly with others.

From the evidence in this can it is clear that appellant must have known that the article was tobacco, but was it at his disposal either jointly with the other accu