Evidence
47K Evidence
Without affecting the admissibility of evidence that might be given otherwise than under this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 3 hours.
No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I and Schedule 1 or in accordance with the procedures prescribed by regulation; and
evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
If, in any proceedings for an offence, it is proved—
that the defendant drove a vehicle, or attempted to put a vehicle in motion; and
that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis performed within the period of 3 hours immediately following the conduct referred to in paragraph (a), it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood at the time of the conduct referred to in paragraph (a).
No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.
As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
the reading produced by the breath analysing instrument; and
the date and time of the analysis.
If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
A certificate—
purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of
Police to operate breath analysing instruments; or
purporting to be signed by a person authorised under subsection (1) and to certify that—
a breath analysing instrument used by the person was in proper order and was properly operated; and
the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with, is, in the absence of proof to the contrary, proof of the matters so certified.
A certificate purporting to be signed by a police officer and to certify that—
a sample of oral fluid for the purposes of an oral fluid analysis was taken on a specified day and at a specified time from a person named in the certificate; and
the provisions of this Act with respect to the taking of samples of oral fluid for such purposes were complied with, is, in the absence of proof to the contrary, proof of the matters so certified.
A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.
A certificate purporting to be signed by a police officer and to certify that a driver testing station had been established in accordance with section 47DA at a place and during a period referred to in the certificate is, in the absence of proof to the contrary, proof of the matters so certified.
Subject to subsection (17) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.
Subject to subsection (17) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—
a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
the breath analysing instrument produced a reading specified in the certificate; and
a statement in writing required by subsection (2) was delivered in accordance with that subsection, is, in the absence of proof to the contrary, proof of the matters so certified.
A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a);
and
that—
the person did not make a request for an approved blood test kit in accordance with the regulations; or
at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b), is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.
A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved—
that the defendant delivered the kit unopened to a medical practitioner or registered nurse for use in taking a sample of the defendant's blood; and
by evidence of the medical practitioner or registered nurse, that the medical practitioner or registered nurse was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person's blood must be taken and dealt with for the purposes of subsection (1a).
A certificate purporting to be signed by an analyst and to certify that an oral fluid analysis was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matter so certified.
A certificate purporting to be signed by a police officer and to certify that the apparatus used to conduct a drug screening test was in proper order and the drug screening test was properly conducted is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters so certified.
A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to a drug screening test on a specified day and at a specified time and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of the person is, in the absence of proof to the contrary, proof of the matters so certified.
Subject to subsection (17), an apparently genuine document purporting to be a certificate under
Schedule 1 and purporting to be signed by a police officer, medical practitioner, registered nurse or analyst, or copy of such a certificate, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.
If a certificate of an analyst relating to a sample of blood taken under section 47E or 47I is received as evidence in proceedings before a court and states that the prescribed concentration of alcohol has been found to be present in the sample of blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate was present in the sample when the sample was taken.
If it is proved by the prosecution in proceedings for an offence that a concentration of alcohol was present in the defendant's blood at the time at which a sample of blood was taken under section 47E or 47I, it will be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of 3 hours immediately preceding the taking of the sample.
If a certificate of an analyst relating to a sample of oral fluid or blood taken under section 47EAA, or a sample of blood taken under section 47E or 47I, is received as evidence in proceedings before a court and states that a prescribed drug has been found to be present in the sample of oral fluid or blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the prescribed drug stated in the certificate was present in the sample when the sample was taken.
If it is proved by the prosecution in proceedings for an offence that a prescribed drug was present in the defendant's blood or oral fluid at the time at which a sample of oral fluid or blood was taken under section 47EAA, or a sample of blood was taken under section 47E or 47I, it will be conclusively presumed that that prescribed drug was present in the defendant's oral fluid or blood (as the case may require) throughout the period of 3 hours immediately preceding the taking of the sample.
If certificates of a police officer and analyst, or a medical practitioner and analyst, or a registered nurse and analyst, under
Schedule 1 are received as evidence in proceedings before a court and contain the same identification number for the samples of oral fluid or blood to which they relate, the certificates will be presumed, in the absence of proof to the contrary, to relate to the same sample of oral fluid or blood.
A certificate referred to in subsection (4),
or (11) cannot be received as evidence in proceedings for an offence—
unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or
if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than 2 days before the commencement of the trial, served written notice on the informant requiring the attendance at the trial of the person by whom the certificate was signed; or
if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.
The provisions of this section apply in relation to proceedings for an offence against this Act or the Motor
Vehicles Act 1959 or a driving‑related offence, subject to the following exceptions:
subsections (1a),
apply only in relation to proceedings for an offence against section 47(1),
47(1a),
47B(1) or
47B(1a), or an offence against the Motor
Vehicles Act 1959;
subsection (3)(b)(i) does not apply in relation to an offence against section 47E(3) or (3a);
subsection (15) applies only in relation to proceedings for an offence against section 47(1),
47(1a),
47BA(1) or
47BA(1a), or an offence against the Motor
Vehicles Act 1959.
In this section—
proceedings for a driving-related offence means proceedings for an offence where the conduct with which the defendant is charged involves driving a vehicle or attempting to put a vehicle in motion.
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