Victorian Consolidated Legislation

Rail Safety Act 2006 - SECT 84

Evidentiary provisions-urine tests

84. Evidentiary provisions-urine 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); 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 (7).

(2) A person who is an approved analyst within the meaning of section 57A 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 57A 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 question as to the presence of a drug in the body of a rail safety
worker at any time is relevant on a hearing for an offence against section
76(1) 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 rail safety worker, within 3 hours after
        that rail safety worker carried out rail safety work, 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 12 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 rail safety
        worker'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 any hearing 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 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 Part is admissible in evidence in any hearing
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 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 hearing 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 given under this section must not be tendered in evidence at
a hearing referred to in subsection (4) without the consent of the accused
unless a copy of the certificate is proved to have been personally served on
the accused more than 10 days before the day on which the certificate is
tendered in evidence.

(9) An affidavit or statutory declaration by the person who has personally
served a copy of the certificate on the accused is admissible in evidence at a
hearing 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.

(10) 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.





(11) The court must not grant leave under subsection (10) 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 (6) 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

   (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.

(12) 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 (10).