Victorian Consolidated Legislation

Marine Act 1988 - SECT 33

Evidentiary provisions-breath tests

33. Evidentiary provisions-breath tests



(1) If the question-

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

   (b)  as to the presence or the concentration of alcohol in the breath of
        any person at any time-

or if a result of a breath analysis 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-

   (c)  evidence may be given of the concentration of alcohol indicated to be
        present in the breath of that person by a breath analysing instrument
        operated by a person authorised to do so by the Chief Commissioner of
        Police under section 31; and

   (d)  the concentration of alcohol so indicated is, subject to compliance
        with section 31(4), evidence of the concentration of alcohol present
        in the breath of that person at the time his or her breath is analysed
        by the instrument.

(2) A document purporting to be a certificate in the prescribed form produced
by a breath analysing instrument of the concentration of alcohol indicated by
the analysis to be present in the breath of a person and purporting to be
signed by the person who operated the instrument is admissible in evidence in
any proceedings referred to in subsection (1), subject to subsection (2E), is
conclusive proof of-

   (a)  the facts and matters contained in it; and





   (b)  the fact that the instrument used was a breath analysing instrument
        within the meaning of this Act; and

   (c)  the fact that the person who operated the instrument was authorised to
        do so by the Chief Commissioner of Police under section 31; and

   (d)  the fact that all relevant regulations relating to the operation of
        the instrument were complied with; and

   (e)  the fact that the instrument was in proper working order and properly
        operated; and



   (f)  the fact that the certificate is identical in its terms to another
        certificate produced by the instrument in respect of the sample of
        breath and that it was signed by the person who operated the
        instrument and given to the accused person as soon as practicable
        after the sample of breath was analysed-

unless the accused person gives notice in writing to the informant not less
than 28 days before the hearing, or any shorter period ordered by the court or
agreed to by the informant, that he or she requires the person giving the
certificate to be called as a witness or that he or she intends to adduce
evidence in rebuttal of any such fact or matter.



(2AA) A certificate referred to in subsection (2) does not cease to be
admissible in evidence or to be conclusive proof of the facts and matters
referred to in that subsection only because of the fact that it refers to the
Road Safety Act 1986 and not to the Marine Act 1988 and the reference to the
Road Safety Act 1986 in that certificate and in each other certificate
produced by the breath analysing instrument in respect of the sample of breath
must be construed for all purposes as a reference to the Marine Act 1988.

(2A) A notice under subsection (2) must specify any fact or matter with which
issue is taken and indicate the nature of any expert evidence which the
accused person intends to have adduced at the hearing.

(2B) The accused person may not, except with the leave of the court, introduce
expert evidence at the hearing if the nature of that evidence was not
indicated in a notice under subsection (2).

(2C) If an accused person gives notice to the informant in accordance with
subsection (2) that he or she requires the person giving a certificate to be
called as a witness and the court is satisfied that that person-

   (a)  is dead; or

   (b)  is unfit by reason of his or her bodily or mental condition to testify
        as a witness; or

   (c)  has ceased to be a member of the police force or is out of Victoria
        and it is not reasonably practicable to secure his or her attendance;
        or

   (d)  cannot with reasonable diligence be found-

the court must order that subsection (2) has effect as if the notice had not
been given.

(2D) A certificate referred to in subsection (2) remains admissible in
evidence even if the accused person gives a notice under that subsection but,
in that event, the certificate ceases to be conclusive proof of the facts and
matters referred to in that subsection.

(2E) Nothing in subsection (2) prevents the informant adducing evidence to
explain any fact or matter contained in a certificate referred to in
subsection (2) and, if the informant does so, the certificate remains
admissible in evidence but ceases to be conclusive proof of that fact or
matter only.

(3) In any proceeding under this Act-

   (a)  the statement of any person that on a particular date he or she was
        authorised by the Chief Commissioner of Police under section 31 to
        operate breath analysing instruments; or

   (b)  a certificate purporting to be signed by the Chief Commissioner of
        Police that a person named in it is authorised by the Chief
        Commissioner under section 31 to operate breath analysing instruments-

is admissible in evidence and, in the absence of evidence to the contrary, is
proof of the authority of that person.

(4) Evidence by a person authorised to operate a breath analysing instrument
under section 31-

   (a)  that an apparatus used by him or her on any occasion under that
        section was a breath analysing instrument within the meaning of this
        Act; and

   (b)  that the breath analysing instrument was on that occasion in proper
        working order and properly operated by him or her; and

   (c)  that, in relation to the breath analysing instrument, all regulations
        made under this Act with respect to breath analysing instruments were
        complied with-

is, in the absence of evidence to the contrary, proof of those facts.

(5) The statement on oath of a person authorised to operate a breath analysing
instrument under section 31 when called as a witness that any apparatus used
by him or her on any occasion under section 31 had written, inscribed or
impressed on some portion of it or on a plate attached to it the expressions
"Drager Alcotest 7110" and "3530791" whether with or without other expressions
or abbreviations of expressions, commas, full stops, hyphens or other
punctuation marks and whether or not all or any of the numbers are boxed in
is, in the absence of evidence to the contrary, proof that the apparatus is a
breath analysing instrument within the meaning of this Act.