Victorian Numbered Acts Victorian Numbered Acts(1) In this section—
"approved analyst" means a person who by virtue of sub-section (2) is to be taken to be a properly qualified analyst for the purposes of this section;
"approved expert" means a person who by virtue of sub-section (3) is to be taken to be a properly qualified expert for the purposes of this section;
"properly qualified analyst" means—
(a) an approved analyst; or
(b) a person who is considered by the 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 sub-section (6) or (7), as the case requires;
"properly qualified expert" means—
(a) an approved expert; or
(b) a person who is considered by the court 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 sub-section (8).
(2) A person who is an approved analyst within the meaning of section 57 of the Road Safety Act 1986 is to be taken to be a properly qualified analyst for the purposes of this section.
(3) A person who is an approved expert within the meaning of section 57 of the Road Safety Act 1986 is to be taken to be a properly qualified expert for the purposes of this section.
(4) If—
(a) the question whether a rail safety worker was or was not at any time under the influence of alcohol or any other drug; or
(b) the presence of alcohol or any other drug, or the concentration of alcohol in the blood of a rail safety worker at any time; or
(c) a finding on the analysis of a blood sample of a rail safety worker—
is relevant on a hearing for an offence against section 76(1) or in any proceedings conducted 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, within 3 hours after the rail safety worker carried out rail safety work, of a sample of blood from the rail safety worker by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within 12 months after it was taken, of the presence of alcohol 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 carry out rail safety work properly).
(5) 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 a proceeding referred to in sub-section (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(6) A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood analysed by the analyst is admissible in evidence in a proceeding referred to in sub-section (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(7) A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the presence in any sample of blood analysed by the analyst of a substance that is, or is capable of being, a drug for the purposes of this Part is admissible in evidence in any proceedings referred to in sub-section (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(8) 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 rail safety worker's ability to carry out rail safety work properly) is admissible in evidence in any proceedings referred to in sub-section (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(9) A certificate given under this section must not be tendered in evidence in a proceeding referred to in sub-section (4) 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.
(10) 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.
(11) An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence in a proceeding referred to in sub-section (4) 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.
(12) 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.
(13) The court must not grant leave under sub-section (12) 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 blood referred to in a certificate given by an analyst under sub-section (6) was not that of the accused; or
(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
(iii) 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
(iv) there is a reasonable possibility that the sample was not taken in accordance with the Code of Practice for Taking Blood Samples from Road Accident Victims; or
(v) for some other reason the giving of evidence by the person who gave the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken would materially assist the court to ascertain relevant facts.
(14) 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 sub-section (12).
(15) 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 rail safety worker 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 rail safety worker was in fact incapable by reason of his or her mental condition from effectively giving consent to the examination or collection.
(16) Except as provided in sections 78(9), 80 and 82, 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 rail safety worker 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.
(17) The mere failure or refusal of a rail safety worker to express consent must not be used in evidence against the rail safety worker or referred to in any way against the rail safety worker's interests in any proceeding.
(18) 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 the provisions of an Act of another State or a Territory that substantially corresponds to section 82 of this Act and in accordance with any regulations made under the corresponding Act is admissible in evidence in a proceeding referred to in sub-section (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(19) Sub-sections (7), (10), (11) and (12) apply in respect of a certificate referred to in sub-section (18) as if the certificate was given under this section.