[89] In the context of ss 106 and 109 and the test to be applied at the conclusion of the prosecution evidence on preliminary examination, s 121A(c) plainly was intended to require the court to hear the prosecution evidence on preliminary examination before the jurisdiction to proceed pursuant to s 121A was enlivened. Significantly, however, s 121A(1) was repealed by the Justices Amendment Act 1997 and replaced by s 121A(1) in its current terms which do not include subpar (c) of the repealed subsection. It is apparent that in the 1997 amendment the Legislature deliberately chose to omit the requirement that before proceeding pursuant to s 121A the court must reach the opinion that the evidence for the prosecution is sufficient to put the defendant on trial. In addition, it was the same 1997 amendment that inserted s 121A(1AA) which enables the court to rely on an outline of the evidence "that will be presented for the prosecution" for the purpose of determining whether to hear and determine the charge in a summary manner.
[90] In my opinion, through the amendments in 1997 the Legislature evinced an intention to delete the requirement that the conduct of a preliminary examination be a condition precedent to the enlivening of the jurisdiction to hear and determine a matter in a summary manner pursuant to s 121A. A decision to proceed pursuant to s 121A may be made after the conduct of a preliminary examination to the conclusion of the prosecution evidence, but such a hearing is not a necessary prerequisite to jurisdiction.
[91] I turn to s 131A. The initial predecessors to s 131A were ss 131A-131E which were introduced into the Justices Ordinance in 1961. Section 131B conferred jurisdiction on a "Court of Summary Jurisdiction" to hear and determine in a summary way a charge in respect of a common assault, not being a common assault accompanied by circumstances of aggravation. Section 131C conferred jurisdiction on a Court of Summary Jurisdiction "constituted by a Stipendiary Magistrate" to hear and determine in a summary way a charge in respect of "an unlawful assault accompanied by circumstances of aggravation." Section 131E identified circumstances in which the Court of Summary Jurisdiction was not authorised by the earlier sections to deal summarily with the charge of assault. Jurisdiction did not exist if the charge involved a question as to title of land, bankruptcy or the execution of the process of any Court of Justice nor in circumstances where the court was of the opinion either that the assault was accompanied by an attempt to commit a felony or that the charge was "a fit subject for prosecution by indictment".
[92] In 1961, therefore, in the context of an Act which specifically provided for the hearing and determination in a summary manner of charges involving minor property offences, the Legislature saw fit to confer jurisdiction on the Court of Summary Jurisdiction to hear and determine in a summary manner charges of common assault and unlawful assault accompanied by circumstances of aggravation. The conferral of the jurisdiction was in the context of an Act that provided for preliminary examinations, but the conferral was not hedged with a specific requirement that the court must first be of the opinion that the evidence was sufficient to put the defendant on trial. Such a requirement as a condition precedent to jurisdiction was first introduced in 1976 and only in respect of jurisdiction pursuant to s 121A.
[93] Over the years the jurisdiction of the Court of Summary Jurisdiction to hear and determine in a summary manner charges involving indictable offences has steadily increased. It is readily apparent that the primary purpose of increasing the jurisdiction is to improve the efficiency of the criminal justice system. In the process of conferring increased jurisdiction upon the Court of Summary Jurisdiction, a somewhat piecemeal approach appears to have emerged and at times it is difficult to reconcile the precise wording of the individual sections conferring summary jurisdiction in respect of indictable offences. The jurisdiction conferred by ss 120 and 131A have never been hedged with a specific requirement that before the court exercises the jurisdiction it must be satisfied that the evidence is sufficient to put the defendant on trial. That requirement only existed with respect to the jurisdiction conferred by s 121A and it was abolished in 1997.
[94] Having regard to the context, history of legislation and the terms in which jurisdiction is conferred by s 131A, in my opinion, subject to the issue of consent, the Legislature did not intend that before the court could exercise that jurisdiction it was required to conduct a preliminary examination to the conclusion of the prosecution evidence. The court may conduct such an examination, but it is not required to do so. In determining whether it is of the opinion that the charge should be prosecuted on indictment as required by s 131A(2), the court is free to conduct a preliminary examination to the conclusion of the prosecution evidence or to rely upon such written and oral material as is presented to the court for this purpose by the prosecutor or the defendant. This view achieves the purpose of the legislation and avoids the time consuming and expensive qualification of requiring that, even if a defendant consents to jurisdiction, a preliminary examination must be conducted before proceeding to exercise jurisdiction pursuant to s 131A. Such a view would also be inconsistent with the jurisdiction conferred by ss 120 and 121A which may be enlivened without first conducting a preliminary examination.
[95] Finally, the difficult question of a defendant's consent to the exercise of summary jurisdiction under s 131A must be addressed. Again, the history of the legislation and the context in which s 131A appears in the Act are of significance.
[96] The starting point is found in the provisions of the Code to which I have referred considered in conjunction with s 348 of the Code. These provisions confer on a person charged with an indictable offence a right of trial by jury. It is in that context that both the procedural provisions and those sections conferring summary jurisdiction in respect of indictable offences must be viewed.
[97] As I have said, since 1933 the Act has provided that the jurisdiction conferred by s 120 may be exercised irrespective of the consent of a defendant to its exercise. In this way, the right of a defendant to trial by jury has been removed in respect of indictable offences identified in s 120.
[98] By way of contrast, in respect of indictable offences that fall within the terms of s 121A, the right of a defendant to insist upon trial by jury has been maintained. The summary jurisdiction conferred by s 121A is not enlivened unless a defendant consents to the exercise of that jurisdiction.
[99] Section 131A is devoid of any assistance in this regard. Bearing in mind that at the time s 131A was introduced into the Act in 1961 specific provision had already been made that the jurisdiction pursuant to s 120 could be exercised irrespective of the consent of the defendant, it might be said with considerable force that if the Legislature had intended that the jurisdiction conferred by s 131A could be exercised irrespective of a defendant's consent, the Legislature would specifically have said so.
[100] In addition, in the absence of specific legislative direction, this Court should be slow to infer that the Legislature intended to deprive a citizen of the right of trial by jury when facing charges of committing serious crimes. Section 131A is capable of conferring summary jurisdiction in respect of serious offences which attract significant sentences of imprisonment. The maximum penalties for the offences of unlawfully causing bodily harm and aggravated assault upon a police officer range from two years imprisonment if found guilty summarily to seven years imprisonment.
[101] In that context and against that legislative background I am not prepared to infer that the Legislature intended to deprive a defendant of a right of trial by jury in respect of the serious offences identified in s 131A in the absence of plain wording to that effect. In my opinion the jurisdiction conferred by s 131A is enlivened only if a defendant consents to the exercise of that jurisdiction. Once consent is given, subject to s 131A(2), the jurisdiction is enlivened. The conduct of a preliminary examination is not a condition precedent to jurisdiction. As the Magistrate did not obtain the consent of the appellant to proceeding in a summary manner, his Worship did not have jurisdiction to conduct a summary hearing.