Victorian Consolidated Legislation

Rail Safety Act 2006 - SECT 83

Evidentiary provisions-blood tests

83. Evidentiary provisions-blood tests



(1) In this section-

approved analyst means a person who by virtue of subsection (2) is to be taken
to be a properly qualified analyst for the purposes of this section; approved
expert means a person who by virtue of subsection (3) is to be taken to be a
properly qualified expert for the purposes of this section; properly qualified
analyst means-

   (a)  an approved analyst; 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 an opinion as to the facts and
        matters contained in a certificate under subsection (6) or (7), as the
        case requires; properly qualified expert means-

   (a)  an approved expert; or

   (b)  a person who is considered by the court 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 (8).

(2) A person who is an approved analyst within the meaning of section 57 of
the Road Safety Act 1986 is to be taken to be a properly qualified analyst for
the purposes of this section.

(3) A person who is an approved expert within the meaning of section 57 of the
Road Safety Act 1986 is to be taken to be a properly qualified expert for the
purposes of this section.

(4) If-

   (a)  the question whether a rail safety worker was or was not at any time
        under the influence of alcohol or any other drug; or

   (b)  the presence of alcohol or any other drug, or the concentration of
        alcohol in the blood of a rail safety worker at any time; or

   (c)  a finding on the analysis of a blood sample of a rail safety worker-

is relevant on a hearing for an offence against section 76(1) or 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, within 3 hours after the rail
safety worker carried out rail safety work, of a sample of blood from the rail
safety worker by a registered medical practitioner or an approved health
professional, of the analysis of that sample of blood by a properly qualified
analyst within 12 months after it was taken, of the presence of alcohol 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 carry out
rail safety work properly).

(5) 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 a proceeding referred to in subsection (4) and,
in the absence of evidence to the contrary, is proof of the facts and matters
contained in it.

(6) 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 a proceeding referred to in
subsection (4) and, in the absence of evidence to the contrary, is proof of
the facts and matters contained in it.

(7) 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 Part is admissible in evidence in any proceedings
referred to in subsection (4) and, in the absence of evidence to the contrary,
is proof of the facts and matters contained in it.

(8) 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
rail safety worker's ability to carry out rail safety work properly) is
admissible in evidence in any proceedings referred to in subsection (4) and,
in the absence of evidence to the contrary, is proof of the facts and matters
contained in it.



(9) A certificate given under this section must not be tendered in evidence in
a proceeding referred to in subsection (4) 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.

(10) 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.

(11) An affidavit or statutory declaration by a person who has served a copy
of the certificate on the accused is admissible in evidence in a proceeding
referred to in subsection (4) 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.

(12) 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.





(13) The court must not grant leave under subsection (12) 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 (6) 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 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

   (iv) 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

   (v)  for some other reason the giving of evidence by the person who gave
        the certificate or any other person employed, or engaged to provide
        services at, the place at which the sample of blood was taken would
        materially assist the court to ascertain relevant facts.

(14) 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 (12).

(15) 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 rail safety worker 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 rail safety worker was in
fact incapable by reason of his or her mental condition from effectively
giving consent to the examination or collection.

(16) Except as provided in sections 78(9), 80 and 82, 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 rail safety worker 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.

(17) The mere failure or refusal of a rail safety worker to express consent
must not be used in evidence against the rail safety worker or referred to in
any way against the rail safety worker's interests in any proceeding.

(18) 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 the provisions of an Act of another State or a Territory
that substantially corresponds to section 82 of this Act and in accordance
with any regulations made under the corresponding Act is admissible in
evidence in a proceeding referred to in subsection (4) and, in the absence of
evidence to the contrary, is proof of the facts and matters contained in it.

(19) Subsections (7), (10), (11) and (12) apply in respect of a certificate
referred to in subsection (18) as if the certificate was given under this
section.