Queen v George Angus McKenzie
| Jurisdiction | Northern Ireland |
| Judge | Nicholson LJ |
| Judgment Date | 2005,11 February 2005 |
| Neutral Citation | [2005] NICA 7 |
| Year | 2005 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 11 February 2005 |
1
Neutral Citation No. [2005] NICA 7
Ref:
NICF5181
Judgment: approved by the Court for handing down
Delivered:
11/02/2005
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
THE QUEEN
-v-
GEORGE ANGUS McKENZIE
________
Before Nicholson LJ, Campbell LJ and Morgan J
________
NICHOLSON LJ
Introduction
[1] This is an appeal by George Angus McKenzie against conviction of the
offence of possessing a weapon designed to discharge a noxious liquid gas or
thing, contrary to Section 6(1)(b) of the Firearms (Northern Ireland) Order
1981 (the Order as amended) and against sentence of six months’
imprisonment suspended for one year. The offence was a scheduled offence,
the trial judge was His Honour Judge McFarland, sitting without a jury, and
the date of conviction and sentence was 16 March 2004. The indictment
should have referred to Article 6(1)(b) of the Order as amended but nothing
turns on this mistake.
Summary of evidence
[2] On the evening of Wednesday 9 July 2003 a large crowd gathered at
Evelyn Avenue which is a cul-de-sac between the Upper Newtownards Road
and Bloomfield Walkway off the Beersbridge Road. They attacked 16 Evelyn
Avenue in which the appellant was temporarily living. They severely
damaged a Ford Escort car outside the house, smashed the front windows of
the house and attempted to gain entry through the front door and an inner
hall door, damaging both doors and breaking panes of glass in the inner door.
One of them put his hand in through one of the panes of glass, holding what
appeared to be a black handgun. A man called Ewing who was with the
2
appellant managed to close the inner door by kicking it, locking it, and
putting a grill on it. In the course of doing so, the man outside dropped the
handgun which landed on the floor inside the house. Ewing picked it up and
threw it upstairs onto the first floor landing.
[3] When the appellant first saw the handgun on the floor he thought that
it was a “real gun”. He picked it up on the first floor landing and at some
stage opened it to see if there were rounds in it. There was a magazine and
the gun was cocked but the magazine was empty. He dismantled the gun
and realised that it was a replica. He re-assembled it and hid it in a cupboard
built into the roof-space in a second-floor attic which had been converted into
a bedroom. There was a water tank in the cupboard with a plastic lid covered
by an insulating jacket. On top of the jacket was a brown leather bag. He
removed the bag and jacket and hid the handgun on top of the lid and
replaced the insulating jacket and leather bag on top of the handgun, so as to
conceal the handgun.
[4] Constable Green found the handgun in the course of a search of the
cupboard at about 10.35 pm on 9 July 2003 and an ATO, Captain Blake, later
on the same evening examined it. It had the appearance of a blank semi-
automatic pistol; the magazine was fitted and the hammer was in a rearward
position. The working parts were forward and the safety catch was off. He
found that there were no rounds in the magazine or chamber. Mr Leo Rossi, a
Senior Scientific Officer in the Forensic Science Agency examined the
handgun and magazine on 17 July 2003. The handgun consisted of an
unmodified Italian made model 85 replica pistol designed to discharge 9 mm
(non-bulleted) cartridges. The pistol was constructed with a partially blocked
barrel designed to prevent the discharge of projectiles. The blockage allowed
the passage of discharge gases from the muzzle and hence allowed 9 mm
blank cartridges with a gas (C.S.) lachrimatory component to be discharged.
Under these circumstances, he stated, the pistol is classed as a weapon subject
to general prohibition in that, under Article 6(1)(b) of the Order as amende d,
it is “a weapon of any description designed or adapted for the discharge of
any noxious liquid, gas or other thing”. The pistol was successfully test fired
using blank 9 mm cartridges.
[5] At some time between 9.30 pm and 10.35 pm on 9 July 2003 Sergeant
Lutton of the PSNI entered No. 16 Evelyn Gardens with Inspector McFarland.
He saw five persons in the house and noted their names and addresses. They
included the appellant. Inspector Little of the PSNI entered the house at
10.10 pm and asked all the occupants including the appellant whether there
were any firearms located in the house before the police searched the house.
The appellant was adamant, according to the Inspector, that no weapons of
any kind would be found in the house. The appellant was informed of the
finding of the gun shortly after 10.30 pm and told Detective Constable
Stoneman that he had handled the gun which had been seized from someone
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Queen v Esmaily (Amir Ali)
...of custody even on a plea of guilty and in the case of an offender with no previous record. I was referred by counsel to R v McKenzie [2005] NICA 7 and R v Avis & Ors [1998] 1 Cr App R 420. In the latter case Lord Bingham stated: “The appropriate level of sentence for a firearms offence, as......