Victorian Consolidated Legislation

Road Safety Act 1986 - SECT 57A

Evidentiary provisions-urine tests

57A. Evidentiary provisions-urine tests



(1) In this section-

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;

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; prescribed legal proceeding means-

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

   (b)  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

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

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

   (e)  any proceedings conducted by a coroner;

properly qualified analyst means-

   (a)  an approved analyst; or

   (b)  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 carry out the analysis and to express an
        opinion as to the facts and matters contained in a certificate under
        subsection (4);

properly qualified expert means-

   (a)  an approved expert; or

   (b)  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 (5).

(2) If a question as to the presence of a drug in the body of a person at any
time is relevant in a prescribed legal proceeding then, without affecting the
admissibility of any evidence which might be given apart from the provisions
of this section, evidence may be given-

   (a)  of the furnishing by that person, after that person drove or was in
        charge of a motor vehicle, of a sample of urine to a registered
        medical practitioner or an approved health professional;

   (b)  of the analysis of that sample of urine by a properly qualified
        analyst within twelve months after it was taken;

   (c)  of the presence of a drug in that sample of urine at the time of
        analysis;

   (d)  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 hearing 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 presence in any sample of urine
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 hearing 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 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 hearing
referred to in subsection (2) and, in the absence of evidence to the contrary,
is proof of the facts and matters contained in it.

(6) 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.

(6A) 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.

(7) 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.

(8) 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 person employed, or engaged to
provide services at, the place at which the sample of urine was furnished, to
attend at all subsequent proceedings for cross-examination and that person
must attend accordingly.

(9) The court must not grant leave under subsection (8) 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 urine 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 urine 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 urine not been
        contaminated in that way; or

   (iia) 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

   (iii) for some other reason the giving of evidence by the person who gave
        the certificate would materially assist the court to ascertain
        relevant facts.

(10) 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
person employed, or engaged to provide services at, the place at which the
sample of urine was furnished, to attend the court on the hearing of an
application for leave under subsection (8).

(11) Evidence of a kind permitted to be given by subsection (2) in a
prescribed legal proceeding is inadmissible as evidence in any other legal
proceedings.