Victorian Consolidated Legislation

Road Safety Act 1986 - SECT 57

Evidentiary provisions-blood tests

57. Evidentiary provisions-blood tests



(1) In this section-

   (a)  properly qualified analyst means-

   (i)  an approved analyst; or

   (ii) a person who is considered by the presiding judge, a coroner, or the
        Magistrates' 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 subsection (4) or (4A), as the case requires; and

   (ab) properly qualified expert means-

   (i)  an approved expert; or

   (ii) 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 (4B); and

   (b)  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; and

   (c)  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.

(2) If the question whether any person was or was not at any time under the
influence of intoxicating liquor or any other drug or if the question 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 relevant19-





   (a)  on a trial for murder or manslaughter or for negligently causing
        serious injury arising out of the driving of a motor vehicle; or

   (ab) on 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

   (b)  on a trial or hearing for an offence against section 318(1) or 319(1)
        of the Crimes Act 1958; or

   (c)  on a hearing for an offence against section 49(1) of this Act; or



   (d)  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, after that person drove or was in charge of a motor vehicle, of a
sample of blood from that person by a registered medical practitioner or an
approved health professional, of the analysis of that sample of blood by a
properly qualified analyst within twelve months after it was taken, 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
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 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 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.

(4) 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 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.

(4A) 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 Act 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.





(4B) 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
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 trial or hearing referred to in subsection (2)(a), (ab), (b) or (c) 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 trial or hearing
referred to in subsection (2)(a), (ab), (b) or (c) 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
declaration20.





(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.

(7A) The court must not grant leave under subsection (7) unless it is
satisfied-

   (a)  that the informant has been given at least 7 day's 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

   (iia) 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

   (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

   (iiia) 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

   (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.

(7B) 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).

(8) 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.

(9) Except as provided in sections 55(9A), 55B, 55E(13) and 56, 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.

(9A) Without limiting section 56(6), evidence of a kind permitted to be given
by subsection (2) in legal proceedings of a kind referred to in subsection
(2)(a), (ab), (b), (c) or (d) is inadmissible as evidence in any other legal
proceedings except proceedings for the purposes of the
Accident Compensation Act 1985 or the Transport Accident Act 1986.

(10) 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.

(11) 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 provisions of an Act of another State or a Territory that
substantially corresponds to section 56 of this Act and in accordance with any
regulations made under the corresponding Act is admissible in evidence in any
proceeding referred to in subsection (2) and, in the absence of evidence to
the contrary, is proof of the facts and matters contained in it.

(12) Subsections (5), (5A), (6), and (7) apply in respect of a certificate
referred to in subsection (11) as if the certificate was given under this
section.