Victorian Consolidated Legislation

Marine Act 1988 - SECT 32

Evidentiary provisions-blood tests

32. Evidentiary provisions-blood tests



(1) In this section properly qualified analyst means-

   (a)  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; 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 the opinion to which this
        section relates.

(2) If the question-





   (a)  whether any person was or was not at any time under the influence of
        alcohol or any other drug; or

   (b)  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 on a hearing for
an offence against section 28(1) then, without affecting the admissibility of
any evidence which might be given apart from the provisions of this section,
evidence may be given-

   (c)  of the taking, after that person was in charge of a vessel under way,
        of a sample of blood from that person by a registered medical
        practitioner or an approved health professional; and



   (d)  of the analysis of that sample of blood by a properly qualified
        analyst within 12 months after it was taken; and

   (e)  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.

(3) A certificate in the prescribed form purporting to be signed by a
registered medical practitioner or an approved health professional as to the
taking, in accordance with subsection (2), of a sample of blood from a person
is admissible in evidence in any proceedings referred to in that subsection
and, in the absence of evidence to the contrary, is proof of the facts and
matters contained in it.

(4) A certificate in the prescribed form purporting to be signed by a properly
qualified 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 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.





(5) 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.

(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.

(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 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.

(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.







(8) The court must not grant leave under subsection (7) 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 subsection (4) 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 sample was not taken in
        accordance with the Code of Practice for Taking Blood Samples from
        Road Accident Victims; 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.





(8A) 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).

(9) 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.

(10) Except as provided in sections 31(9A) and 31A, 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.

(11) 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.