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 accused or exclusively? On this point the evidence is that the other accused was in the left hand front seat of the car, that the rear portion of the car behind the front seat was occupied by sacks of tobacco, and that two persons were in the car. The evidence is that appellant was arrested in the car and had a driver's badge in his pocket, and it is a reasonable and acceptable inference that he occupied the driving seat and drove the car. It is the only place in the car he could been on the facts given in evidence.

It is possible that appellant was jointly responsible with the other accused for the venture in uncustomed tobacco and was joint owner of the tobacco with him and that the tobacco was at the joint disposal of both; in view of the admission by the other accused that he was in possession of the tobacco, evidence accepted by the Court, it is not possible that appellant was in exclusive possession of the tobacco. The issue therefore is: Was the other accused in exclusive possession of the tobacco, or was appellant in joint possession thereof with him? The prosecution case must be that the possession was joint and the onus is on them to prove it. The only evidence they have is the presumed knowledge by the appellant of the fact that the goods were uncustomed and that they were tobacco, and that appellant was in a car containing the tobacco, but in company with another man, the other accused, who claims possession of the tobacco.

As this Court has previously ruled in similar cases, mere juxta position is not enough to constitute possession. There must be something more, a nexus that establishes in the accused a power of controlling the thing said to be possessed. In this case no such nexus has been established. The evidence tends ratherto establish the possession in the other accused. There is not only his claim to possession which the Court has accepted, but the fact that it was he who got out of the car to effect the disposal of the tobacco at the house in the back lane and knocked on the door. Appellant was in the driving seat and was in possession of a driver's badge, and in the absence of any evidence to the contrary it ought to be assumed in his favour that he was merely the driver of the car. I therefore hold that the prosecution have not discharged the onuscast on them of proving that the uncustomed goods were in the possession of appellant either jointly or exclusively. The word 'knowingly' in s. 39(i)(e), as I have said, is redundant as far as mere possession is concerned, for there can be no criminal possession without the consciousness of the fact of possession. The conviction of the appellant for an offence under s. 39(i)(e) cannot therefore stand.

The question, however, arises as to what order this Court should make. The appellant