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RAIL SAFETY (LOCAL OPERATIONS) ACT 2006 - SECT 86J

Evidentiary provisions—oral fluid samples

    (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;

S. 86J(1) def. of approved laboratory inserted by No. 5/2016 s. 11(1)(b).

"approved laboratory" means an approved laboratory within the meaning of section 57B of the Road Safety Act 1986 ;

S. 86J(1) def. of properly qualified analyst amended by No. 5/2016 s. 11(1)(a).

"properly qualified analyst" means—

        (a)     an approved analyst; or

        (ab)     a person who carries out an analysis in an approved laboratory; 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).

S. 86J(2) amended by No. 49/2014 s. 63.

    (2)     A person who is an approved analyst within the meaning of section 57B 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 in a hearing for an offence against section 76 or 77 then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—

S. 86J(4)(a) amended by No. 68/2017 s. 104(1).

        (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 oral fluid;

        (b)     of the analysis of that sample of oral fluid by a properly qualified analyst within 12 months after it was taken;

        (c)     of the presence of a drug in that sample of oral fluid 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).

S. 86J(5) amended by No. 68/2017 s. 104(2).

    (5)     A certificate containing the prescribed particulars purporting to be signed by the person who carried out the procedure in the course of which the sample was provided 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.

S. 86J(6) substituted by No. 5/2016 s. 11(2).

    (6)     A certificate, containing the prescribed particulars, as to the presence in any sample of oral fluid of a substance that is, or is capable of being, a prescribed drug for the purposes of this Part—

        (a)     purporting to be signed by an approved analyst; and

        (b)     stating that the sample of oral fluid was analysed in an approved laboratory

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.

    (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 oral fluid 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 oral fluid referred to in a certificate given by an analyst under subsection (6) was not that of the accused; or

S. 86J
(11)(b)(ii) amended by No. 68/2017 s. 104(3).

              (ii)     there is a reasonable possibility that the oral fluid referred to in a certificate given under subsection (5) had become contaminated in such a way that a drug found on analysis would not have been found had the oral fluid 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 oral fluid was furnished, to attend the court on the hearing of an application for leave under subsection (10).

S. 86K inserted by No. 23/2013 s. 89.



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