Victorian Current Acts Victorian Current Acts(1) In this section—
(a) properly qualified analyst means—
(i) an approved analyst; or
S. 57(1)(a)(ia) inserted by No. 5/2016 s. 3(1)(a).
(ia) a person who carries out an analysis in an approved laboratory; or
S. 57(1)(a)(ii) amended by Nos 53/1989 s. 11(1), 14/2000 s. 10(3), 92/2001 s. 34(2).
(ii) a person who is considered by the presiding judge, a coroner, or the Magistrates' Court to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (4) or (4A), as the case requires; and
S. 57(1)(ab) inserted by No. 14/2000 s. 10(1).
(ab) properly qualified expert means—
(i) an approved expert; or
(ii) a person who is considered by the court hearing the charge for the offence to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under subsection (4B); and
S. 57(1)(b) amended by No. 14/2000 s. 10(2).
(b) approved analyst means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified analyst for the purposes of this section; and
S. 57(1)(c) inserted by No. 14/2000 s. 10(2), amended by No. 5/2016 s. 3(1)(b).
(c) approved expert means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified expert for the purposes of this section; and
S. 57(1)(d) inserted by No. 5/2016 s. 3(1)(c).
(d) "approved laboratory" means a laboratory that has been approved by an Order of the Governor in Council published in the Government Gazette for the purposes of this section.
S. 57(2) amended by Nos 53/1989 s. 11(2)(a)(b) (d), 66/1990 s. 3(1), 23/1994 s. 118(Sch. 1 item 50.6), 14/2000 ss 10(4), 17(4), 23/2001 s. 12(1).
(2) If the question whether any person was or was not at any time under the influence of intoxicating liquor or any other drug or if the question as to the presence of alcohol or any other drug or the concentration of alcohol in the blood of any person at any time or if a finding on the analysis of a blood sample is relevant—
S. 57(2)(a) amended by No. 17/1994 s. 11(1)(a).
(a) on a trial for murder or
manslaughter or for negligently causing serious injury arising out of the
driving of a motor vehicle; or
S. 57(2)(ab) inserted by No. 17/1994 s. 11(1)(b).
(ab) on a trial or hearing for an offence against Subdivision (4) of Division 1 of Part I of the Crimes Act 1958 arising out of the driving of a motor vehicle; or
S. 57(2)(b) amended by Nos 81/2006 s. 44(1), 93/2009 s. 49(2)(b).
(b) on a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the driving of a motor vehicle but not the operating of a vessel; or
S. 57(2)(c) amended by No. 53/1989 s. 11(2)(c).
(c) on a hearing for an offence against section 49(1) of this Act; or
S. 57(2)(d) inserted by No. 53/1989 s. 11(2)(c), substituted by No. 77/2008 s. 129(Sch. 2 item 24.2).
(d) in any inquest or investigation
held by a coroner—
then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, after that person drove or was in charge of a motor vehicle, of a sample of blood from that person by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within twelve months after it was taken, of the presence of alcohol or any other drug and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis and, if a drug is present, evidence may be given by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person's ability to drive properly).
S. 57(3) amended by Nos 23/1994 s. 118(Sch. 1 item 50.6), 57/1998 s. 4(5)(a), 14/2000 s. 17(4).
(3) A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
S. 57(4) amended by No. 57/1998 s. 4(5)(a), substituted by No. 5/2016 s. 3(2).
(4) A certificate, containing the prescribed particulars, as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood—
(a) purporting to be signed by an approved analyst; and
(b) stating that the sample of blood was analysed in an approved laboratory—
is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
S. 57(4A) inserted by No. 14/2000 s. 10(5), substituted by No. 5/2016 s. 3(2).
(4A) A certificate, containing the prescribed particulars, as to the presence in any sample of blood of a substance that is, or is capable of being, a drug for the purposes of this Act—
(a) purporting to be signed by an approved analyst; and
(b) stating that the sample of blood was analysed in an approved laboratory—
is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
S. 57(4B) inserted by No. 14/2000 s. 10(5).
(4B) A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a person's ability to drive properly) is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
S. 57(5) amended by Nos 53/1989 s. 11(3), 89/1991 s. 17(1)(b), 17/1994 s. 11(2), 94/2003 s. 13(1).
(5) A certificate given under this section must not be tendered in evidence at a trial or hearing referred to in subsection (2)(a), (ab), (b) or (c) without the consent of the accused unless a copy of the certificate is proved to have been served on the accused more than 10 days before the day on which the certificate is tendered in evidence.
S. 57(5A) inserted by No. 94/2003 s. 13(2).
(5A) A copy of a certificate given under this section may be served on the accused by—
(a) delivering it to the accused personally; or
(b) leaving it for the accused at his or her last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.
S. 57(6) amended by Nos 53/1989 s. 11(3), 89/1991 s. 17(1)(b), 17/1994 s. 11(2), 100/1995 s. 51(4)(a)(b), 94/2003 s. 13(3).
(6) An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence at a trial or hearing referred to in subsection (2)(a), (ab), (b) or (c) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.
S. 57(7) substituted by No. 19/1991 s. 12, amended by No. 17/1994 s. 11(3).
(7) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.
S. 57(7A) inserted by No. 19/1991 s. 12.
(7A) The court must not grant leave under subsection (7) unless it is satisfied—
(a) that the informant has been given at least 7 day's notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and
(b) that—
(i) there is a reasonable possibility that the blood referred to in a certificate given by an analyst under subsection (4) was not that of the accused; or
S. 57(7A)(b)(ii) amended by Nos 23/1994 s. 118(Sch. 1 item 50.6), 14/2000 s. 17(4).
(ii) there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that the blood alcohol concentration found on analysis was higher than it would have been had the blood not been contaminated in that way; or
S. 57(7A) (b)(iia) inserted by No. 14/2000 s. 10(6).
(iia) there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the blood not been contaminated in that way; or
S. 57(7A)(b)(iii) substituted by No. 7/1995 s. 3(5), repealed by No. 70/2016 s. 34.
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S. 57(7A) (b)(iiia) inserted by No. 23/2001 s. 12(2).
(iiia) there is a reasonable possibility that the sample was not taken within 3 hours after the person who provided the sample drove or was in charge of the vehicle; or
(iv) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.
S. 57(7B) inserted by No. 17/1994 s. 11(4).
(7B) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken, to attend the court on the hearing of an application for leave under subsection (7).
S. 57(8) amended by Nos 23/1994 s. 118(Sch. 1 item 50.6), 14/2000 s. 17(5)(a)(b).
(8) If a registered medical practitioner or an approved health professional is requested to make an examination or to collect a sample of blood for the purposes of this section and if the person to be examined or from whom a sample of blood is to be collected has expressed consent to that examination or collection, no action lies against the registered medical practitioner or approved health professional who acts in accordance with that consent even if it subsequently appears that the person was in fact incapable by reason of his or her mental condition from effectively giving consent to the examination or collection.
S. 57(9) amended by Nos 17/1994 s. 11(5), 14/2000 s. 10(7), 111/2003 s. 14(1), 40/2015 s. 6.
(9) Except as provided in sections 55(9A), 55B, 55BA, 55E(13) and 56, a blood sample must not be taken and evidence of the result of an analysis of a blood sample must not be tendered unless the person from whom the blood has been collected has expressed consent to the collection of the blood and the onus of proving that expression of consent is on the prosecution.
S. 57(9A) inserted by No. 111/2003 s. 14(2), amended by No. 67/2013 s. 649(Sch. 9 item 31(1)).
(9A) Without limiting section 56(6), evidence of a kind permitted to be given by subsection (2) in legal proceedings of a kind referred to in subsection (2)(a), (ab), (b), (c) or (d) is inadmissible as evidence in any other legal proceedings except proceedings for the purposes of the Accident Compensation Act 1985 , the Workplace Injury Rehabilitation and Compensation Act 2013 or the Transport Accident Act 1986 .
(10) The mere failure or refusal of a person to express consent must not be used in evidence against that person or referred to in any way against that person's interests in any proceedings.
S. 57(11) inserted by No. 78/1987 s. 12.
(11) A certificate purporting to be signed by a person—
(a) who took a blood sample; or
(b) who analysed a blood sample—
in accordance with provisions of an Act of another State or a Territory that substantially corresponds to section 56 of this Act and in accordance with any regulations made under the corresponding Act is admissible in evidence in any proceeding referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
S. 57(12) inserted by No. 78/1987 s. 12, amended by No. 94/2003 s. 13(4).
(12) Subsections (5), (5A), (6), and (7) apply in respect of a certificate referred to in subsection (11) as if the certificate was given under this section.
S. 57A inserted by No. 14/2000 s. 11.