ROAD TRAFFIC ACT 1961 - SECT 47K
ROAD TRAFFIC ACT 1961 - SECT 47K
(1) Without affecting
the admissibility of evidence that might be given otherwise than under this
section, evidence may be given, in any proceedings for an offence, of the
concentration of alcohol indicated as being present in the blood of the
defendant by a breath analysing instrument operated by a person authorised to
operate the instrument by the Commissioner of Police and, where the
requirements and procedures in relation to breath analysing instruments and
breath analysis under this Act, including subsections (2) and (2a), have
been complied with, it must be presumed, in the absence of proof to the
contrary, that the concentration of alcohol so indicated was present in the
blood of the defendant at the time of the analysis and throughout the
preceding period of 3 hours.
(1a) No evidence can
be adduced in rebuttal of the presumption created by subsection (1)
except—
(a)
evidence of the concentration of alcohol in the blood of the defendant as
indicated by analysis of a sample of blood taken and dealt with in accordance
with section 47I and Schedule 1 or in accordance with the procedures
prescribed by regulation; and
(b)
evidence as to whether the results of analysis of the sample of blood
demonstrate that the breath analysing instrument gave an exaggerated reading
of the concentration of alcohol present in the blood of the defendant.
(1ab) If, in any
proceedings for an offence, it is proved—
(a) that
the defendant drove a vehicle, or attempted to put a vehicle in motion; and
(b) that
a concentration of alcohol was present in the defendant's blood at the time of
a breath analysis performed within the period of 3 hours immediately
following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was
present in the defendant's blood at the time of the conduct referred to in
paragraph (a).
(1b) No evidence can
be adduced as to a breath or blood alcohol reading obtained from a
coin-operated breath testing or breath analysing machine installed in any
hotel or other licensed premises.
(2) As soon as
practicable after a person has submitted to an analysis of breath by means of
a breath analysing instrument, the person operating the instrument must
deliver to the person whose breath has been analysed a statement in writing
specifying—
(a) the
reading produced by the breath analysing instrument; and
(b) the
date and time of the analysis.
(2a) If a person has
submitted to an analysis of breath by means of a breath analysing instrument
and the concentration of alcohol indicated as being present in the blood of
that person by the breath analysing instrument is the
prescribed concentration of alcohol, the person operating the instrument must
forthwith—
(a) give
the person the prescribed oral advice and deliver to the person the prescribed
written notice as to the operation of this Act in relation to the results of
the breath analysis and as to the procedures prescribed for the taking and
analysis of a sample of the person's blood; and
(b) at
the request of the person made in accordance with the regulations, deliver an
approved blood test kit to the person.
(a)
purporting to be signed by the Commissioner of Police and to certify that a
person named in the certificate is authorised by the Commissioner of Police to
operate breath analysing instruments; or
(b)
purporting to be signed by a person authorised under subsection (1) and
to certify that—
(i)
a breath analysing instrument used by the person was in
proper order and was properly operated; and
(ii)
the provisions of this Act with respect to
breath analysing instruments and the manner in which an analysis of breath by
means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so
certified.
(3a) A certificate
purporting to be signed by a police officer and to certify that—
(a) a
sample of oral fluid for the purposes of an oral fluid analysis was taken on a
specified day and at a specified time from a person named in the certificate;
and
(b) the
provisions of this Act with respect to the taking of samples of oral fluid for
such purposes were complied with,
is, in the absence of proof to the contrary, proof of the matters so
certified.
(3b) A certificate
purporting to be signed by a police officer and to certify that a person named
in the certificate submitted to an alcotest on a specified day and at a
specified time and that the alcotest indicated that the
prescribed concentration of alcohol may then have been present in the blood of
that person is, in the absence of proof to the contrary, proof of the matters
so certified.
(3c) A certificate
purporting to be signed by a police officer and to certify that a
driver testing station had been established in accordance with
section 47DA at a place and during a period referred to in the
certificate is, in the absence of proof to the contrary, proof of the matters
so certified.
(4) Subject to
subsection (17) a certificate purporting to be signed by an analyst,
certifying as to the concentration of alcohol, or any drug, found in a
specimen of blood identified in the certificate expressed in grams in 100
millilitres of blood is, in the absence of proof to the contrary, proof of the
matters so certified.
(5) Subject to
subsection (17) a certificate purporting to be signed by a person
authorised under subsection (1) and to certify that—
(a) a
person named in the certificate submitted to an analysis of breath by means of
a breath analysing instrument on a day and at a time specified in the
certificate; and
(b) the
breath analysing instrument produced a reading specified in the certificate;
and
(c) a
statement in writing required by subsection (2) was delivered in
accordance with that subsection,
is, in the absence of proof to the contrary, proof of the matters so
certified.
(7) A certificate
purporting to be signed by a person authorised under subsection (1) and
to certify—
(a)
that, on a date and at a time specified in the certificate, a person named in
the certificate submitted to an analysis of breath by means of a breath
analysing instrument; and
(b) that
the prescribed oral advice and the prescribed written notice were given and
delivered to the person in accordance with subsection (2a)(a); and
(c)
that—
(i)
the person did not make a request for an
approved blood test kit in accordance with the regulations; or
(ii)
at the request of the person, a kit that, from an
examination of its markings, appeared to the person signing the certificate to
be an approved blood test kit was delivered to the person in accordance with
subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of
subsection (2a) were complied with in relation to the person.
(8) A prosecution for
an offence will not fail because of a deficiency of a kit delivered to the
defendant in purported compliance with subsection (2a)(b) and the
presumption under subsection (1) will apply despite such a deficiency
unless it is proved—
(a) that
the defendant delivered the kit unopened to a medical practitioner or
registered nurse for use in taking a sample of the defendant's blood; and
(b) by
evidence of the medical practitioner or registered nurse, that the
medical practitioner or registered nurse was, because of a deficiency of the
kit, unable to comply with the prescribed procedures governing the manner in
which a sample of a person's blood must be taken and dealt with for the
purposes of subsection (1a).
(9) A certificate
purporting to be signed by an analyst and to certify that an
oral fluid analysis was properly conducted is admissible in proceedings before
a court and is, in the absence of proof to the contrary, proof of the matter
so certified.
(9a) A certificate
purporting to be signed by a police officer and to certify that the apparatus
used to conduct a drug screening test was in proper order and the
drug screening test was properly conducted is admissible in proceedings before
a court and is, in the absence of proof to the contrary, proof of the matters
so certified.
(10) A certificate
purporting to be signed by a police officer and to certify that a person named
in the certificate submitted to a drug screening test on a specified day and
at a specified time and that the drug screening test indicated that a
prescribed drug may then have been present in the oral fluid of the person is,
in the absence of proof to the contrary, proof of the matters so certified.
(11) Subject to
subsection (17), an apparently genuine document purporting to be a
certificate under Schedule 1 and purporting to be signed by a police officer,
medical practitioner, registered nurse or analyst, or copy of such a
certificate, is admissible in proceedings before a court and is, in the
absence of proof to the contrary, proof of the matters stated in the
certificate.
(12) If a certificate
of an analyst relating to a sample of blood taken under section 47E or
47I is received as evidence in proceedings before a court and states that the
prescribed concentration of alcohol has been found to be present in the sample
of blood to which the certificate relates, it will be presumed, in the absence
of proof to the contrary, that the concentration of alcohol stated in the
certificate was present in the sample when the sample was taken.
(13) If it is proved
by the prosecution in proceedings for an offence that a concentration of
alcohol was present in the defendant's blood at the time at which a sample of
blood was taken under section 47E or 47I, it will be conclusively
presumed that that concentration of alcohol was present in the defendant's
blood throughout the period of 3 hours immediately preceding the taking
of the sample.
(14) If a certificate
of an analyst relating to a sample of oral fluid or blood taken under
section 47EAA, or a sample of blood taken under section 47E or 47I,
is received as evidence in proceedings before a court and states that a
prescribed drug has been found to be present in the sample of oral fluid or
blood to which the certificate relates, it will be presumed, in the absence of
proof to the contrary, that the prescribed drug stated in the certificate was
present in the sample when the sample was taken.
(15) If it is proved
by the prosecution in proceedings for an offence that a prescribed drug was
present in the defendant's blood or oral fluid at the time at which a sample
of oral fluid or blood was taken under section 47EAA, or a sample of
blood was taken under section 47E or 47I, it will be conclusively
presumed that that prescribed drug was present in the defendant's oral fluid
or blood (as the case may require) throughout the period of 3 hours
immediately preceding the taking of the sample.
(16) If certificates
of a police officer and analyst, or a medical practitioner and analyst, or a
registered nurse and analyst, under Schedule 1 are received as evidence in
proceedings before a court and contain the same identification number for the
samples of oral fluid or blood to which they relate, the certificates will be
presumed, in the absence of proof to the contrary, to relate to the same
sample of oral fluid or blood.
(17) A certificate
referred to in subsection (4), (5) or (11) cannot be received as evidence
in proceedings for an offence—
(a)
unless a copy of the certificate proposed to be put in evidence at the trial
of a person for the offence has, not less than 7 days before the commencement
of the trial, been served on that person; or
(b) if
the person on whom a copy of the certificate has been served under
paragraph (a) has, not less than 2 days before the commencement of the
trial, served written notice on the informant requiring the attendance at the
trial of the person by whom the certificate was signed; or
(c) if
the court, in its discretion, requires the person by whom the certificate was
signed to attend at the trial.
(18) The provisions of
this section apply in relation to proceedings for an offence against this Act
or the Motor Vehicles Act 1959 or a driving-related offence, subject to
the following exceptions:
(a)
subsections (1a), (1ab) and (13) apply only in relation to proceedings
for an offence against section 47(1), 47(1a), 47B(1) or 47B(1a), or an
offence against the Motor Vehicles Act 1959 ;
(b)
subsection (3)(b)(i) does not apply in relation to an offence against
section 47E(3) or (3a);
(c)
subsection (15) applies only in relation to proceedings for an offence
against section 47(1), 47(1a), 47BA(1) or 47BA(1a), or an offence against
the Motor Vehicles Act 1959 .
(19) In this
section—
"proceedings for a driving-related offence" means proceedings for an offence
where the conduct with which the defendant is charged involves driving a
vehicle or attempting to put a vehicle in motion.