Victorian Current Acts Victorian Current Acts(1) In this section—
"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;
"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;
S. 57A(1) def. of approved laboratory inserted by No. 5/2016 s. 4(1)(b).
"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. 57A(1) def. of prescribed legal proceeding inserted by No. 111/2003 s. 15(1), amended by Nos 81/2006 s. 44(2), 77/2008 s. 129(Sch. 2 item 24.3), 93/2009 s. 49(2)(c).
"prescribed legal proceeding" means—
(a) a trial for murder or manslaughter or for negligently causing serious injury arising out of the driving of a motor vehicle; or
(b) 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
(c) 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
(d) a hearing for an offence against section 49(1) of this Act; or
(e) in any inquest or investigation held by a coroner;
S. 57A(1) def. of properly qualified analyst amended by No. 5/2016 s. 4(1)(a).
"properly qualified analyst" means—
(a) an approved analyst; or
(ab) a person who carries out an analysis in an approved laboratory; or
(b) 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 carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (4);
"properly qualified expert" means—
(a) an approved expert; or
(b) 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 (5).
S. 57A(2) amended by No. 111/2003 s. 15(2).
(2) If a question as to the presence of a drug in the body of a person at any time is relevant in a prescribed legal proceeding then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—
S. 57A(2)(a) amended by No. 23/2001 s. 13(1).
(a) of the furnishing by that person, after that person drove or was in charge of a motor vehicle, of a sample of urine to a registered medical practitioner or an approved health professional;
(b) of the analysis of that sample of urine by a properly qualified analyst within twelve months after it was taken;
(c) of the presence of a drug in that sample of urine at the time of analysis;
(d) 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).
(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 hearing 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. 57A(4) substituted by No. 5/2016 s. 4(2).
(4) A certificate, containing the prescribed particulars, as to the presence in any sample of urine 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 urine sample was analysed in an approved laboratory—
is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(5) 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 hearing 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. 57A(6) amended by No. 94/2003 s. 13(5).
(6) A certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (2) 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. 57A(6A) inserted by No. 94/2003 s. 13(6).
(6A) 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. 57A(7) amended by No. 94/2003 s. 13(7).
(7) 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 hearing referred to in subsection (2) 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.
(8) 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 person employed, or engaged to provide services at, the place at which the sample of urine was furnished, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.
(9) The court must not grant leave under subsection (8) unless it is satisfied—
(a) that the informant has been given at least 7 days' 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 urine referred to in a certificate given by an analyst under subsection (4) was not that of the accused; or
(ii) there is a reasonable possibility that the urine 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 urine not been contaminated in that way; or
S.
57A(9)
(b)(iia) inserted by No. 23/2001 s. 13(2).
(iia) 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
(iii) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.
(10) 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 person employed, or engaged to provide services at, the place at which the sample of urine was furnished, to attend the court on the hearing of an application for leave under subsection (8).
S. 57A(11) inserted by No. 111/2003 s. 15(3).
(11) Evidence of a kind permitted to be given by subsection (2) in a prescribed legal proceeding is inadmissible as evidence in any other legal proceedings.
S. 57B inserted by No. 111/2003 s. 16.