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

Evidentiary provisions—breath tests

    (1)     If—

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

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

        (c)     a result of a breath analysis of a rail safety worker

is relevant on 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 of the concentration of alcohol indicated to be present in the breath of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 85 and the concentration of alcohol so indicated is, subject to compliance with section 85(6), evidence of the concentration of alcohol present in the breath of that person at the time his or her breath is analysed by the instrument.

    (2)     A document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in a proceeding referred to in subsection (1) and, subject to subsection (8), is conclusive proof of—

        (a)     the facts and matters contained in it; and

        (b)     the fact that the instrument used was a breath analysing instrument; and

        (c)     the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 85; and

        (d)     the fact that all relevant regulations relating to the operation of the instrument were complied with; and

        (e)     the fact that the instrument was in proper working order and properly operated; and

        (f)     the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the breath analysing instrument and given to the accused person as soon as practicable after the sample of breath was analysed—

unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.

    (3)     A certificate referred to in subsection (2) does not cease to be admissible in evidence or to be conclusive proof of the facts and matters referred to in that subsection only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety (Local Operations) Act 2006 and the reference to the Road Safety Act 1986 in that certificate and in each other certificate produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety (Local Operations) Act 2006 .

    (4)     A notice under subsection (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.

    (5)     The accused person may not, except with the leave of the court, introduce expert evidence at the hearing if the nature of that evidence was not indicated in a notice under subsection (2).

    (6)     If an accused person gives notice to the informant in accordance with subsection (2) that he or she requires the person giving a certificate to be called as a witness and the court is satisfied that that person

        (a)     is dead; or

        (b)     is unfit by reason of his or her bodily or mental condition to testify as a witness; or

        (c)     has ceased to be a police officer or is out of Victoria and it is not reasonably practicable to secure his or her attendance; or

        (d)     cannot with reasonable diligence be found—

the court must order that subsection (2) has effect as if the notice had not been given.

    (7)     A certificate referred to in subsection (2) remains admissible in evidence even if the accused person gives a notice under that subsection but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that subsection.

    (8)     Nothing in subsection (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in subsection (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.

    (9)     In any proceeding under this Act—

        (a)     the statement of any person that on a particular date he or she was authorised by the Chief Commissioner of Police under section 85(6) to operate breath analysing instruments; or

        (b)     a certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner of Police under section 85(6) to operate breath analysing instruments

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that person.

    (10)     Evidence by a person authorised to operate a breath analysing instrument under section 85—

        (a)     that an apparatus used by him or her on any occasion under that section was a breath analysing instrument;

        (b)     that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her;

        (c)     that, in relation to the breath analysing instrument, all regulations with respect to breath analysing instruments were complied with—

is, in the absence of evidence to the contrary, proof of those facts.

S. 86K(11) amended by No. 6/2018 s. 68(Sch. 2 item 106.2).

    (11)     The statement on oath or affirmation of a person authorised to operate a breath analysing instrument under section 85 when called as a witness that any apparatus used by him or her on any occasion under section 85 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions—

        (a)     "Alcotest 7110" and "3530791"; or

        (b)     "Alcotest 9510AUS" and "8320869"—

whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument.

Division 5—Other matters

S. 86L inserted by No. 23/2013 s. 89.



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