[7] There are significant problems arising from the construction proposed by Mr Wild QC on behalf of the fourth defendant. Foremost is that the proposed construction serves to deprive a youth of the right to a trial by jury for serious offences which fall within the alleged lacuna (hereinafter referred to as "the gap" or "gap offences"). Such a result should not be inferred in the absence of an express specific legislative intention.[5] Further, it is well established that a statute is not to be interpreted as affecting the jurisdiction of the Supreme Court to deal with a matter unless an intention to do so appears clearly and unmistakably.[6]
[8] Other problems exist. In relation to federal indictable offences, the accused, whatever his age, has a right under s 80 of the Constitution to trial by jury, which cannot be abrogated by an Act of the Commonwealth, a State or a Territory.[7] The provisions of the Youth Justice Act must be read down so as not to offend s 80 of the Constitution. One way that this can be achieved is to adopt the course preferred by Olsson AJ in Curtis v Eaton,[8] viz, that there must be a preliminary examination vide s 53(1) of the Act.
[9] If Mr Wild's argument is correct, logically neither the Director of Public Prosecutions nor the Attorney-General would have power to lay an ex officio indictment in this Court, despite s 300 of the Criminal Code. A consequence of this is that there would be no provision in the law applicable to youths, or to adults who committed an offence whilst a youth, where the accused was unfit to plead. It is well established that an ex officio indictment can be laid if a committal proceeding cannot be taken against a defendant.[9] It seems clear that s 54 of the Act is not intended to operate to prevent an ex officio indictment being laid in those circumstances.
[10] Section 61 of the Act requires the Youth Justice Court "to satisfy itself that a youth who is the subject of proceedings for an offence understands the nature of the proceedings". If the Court is not so satisfied, no summary trial or committal can be held. The Act makes no specific provision for what is to occur in those circumstances. The Youth Justice Court has no power to proceed under Part IIA of the Criminal Code, as proceedings of that nature must be dealt with in the Supreme Court. If the question arises during a committal proceeding, s 43M of the Code now requires the committal to go ahead, but makes no specific provision in the case of indictable offences tried summarily.
[11] Further, the effect of this construction is to require that the gap offences (being offences which presently carry maximum penalties of imprisonment for more than 10 years, but less than life imprisonment, or which fall within a class of offences referred to in s 121A(1)(b)(ii) of the Justices Act where the maximum penalty is not more than 14 years imprisonment) be subject to a new maximum penalty of imprisonment for two years in the case of a youth who is aged from 15 years up to 18 years.[10] Offences within the gap offences include kidnapping for ransom, unlawfully causing serious harm, assaulting a police officer in the execution of the officer's duty causing the officer serious harm, the offence of aggravated recklessly endangering life, the offence of having sexual intercourse with a child under the age of 16 years and a number of drug offences. In our view, it is unlikely that the legislature intended to effect such a dramatic reduction in maximum penalties for such serious offending by what is, in effect, a side wind.
[12] Each of these factors point strongly to the conclusion that the legislature did not intend to take away the accused's right to trial by jury for serious indictable offences which fall within the gap.