S. 32A(1) def. of approved analyst substituted by No. 5/2016 s. 7(1)(a).
approved analyst means an approved analyst within the meaning of section 57A of the Road Safety Act 1986;
approved expert means a person who by virtue of section 32C(2) is taken to be a properly qualified expert for the purposes of this section;
S. 32A(1) def. of approved laboratory inserted by No. 5/2016 s. 7(1)(c).
approved laboratory means an approved laboratory within the meaning of section 57A of the Road Safety Act 1986;
prescribed legal proceeding means—
(a) a hearing for an offence against section 28(1); or
(b) a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel;
S. 32A(1) def. of properly qualified analyst amended by No. 5/2016 s. 7(1)(b).
(ab) a person who carries out an analysis in an approved laboratory; or
(b) a person who is considered by the court hearing the charge for the offence 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 (4);
properly qualified expert means—
(a) an approved expert; or
(b) a person who is considered by the court hearing the charge for the offence 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 (5).
(2) If a question as to the presence of a drug in the body of a person at any time is relevant in a prescribed legal proceeding 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 person, after that person operated a vessel or was a master or pilot or a vessel underway or at anchor, 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 twelve 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—
(i) in the case of a person operating a vessel, the person's ability to operate the vessel properly;
(ii) in the case of a master or pilot, the person's ability to direct the proper operation of the vessel.
(3) 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 (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
S. 32A(4) substituted by No. 5/2016 s. 7(2).
(4) A certificate, containing the prescribed particulars, as to the presence in any sample of urine of a substance that is, or is capable of being, a drug for the purposes of this Act—
(b) stating that the urine sample was analysed in an approved laboratory—
is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(5) 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 person's ability to operate a vessel properly or, in the case of a master or pilot, to direct the proper operation of a vessel) is admissible in evidence in any hearing referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(6) A certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (2) 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.
(7) A copy of a certificate given under this section may be served on the accused by—
(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.
(8) An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in subsection (2) 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.
(9) 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.
(10) The court must not grant leave under subsection (9) 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
(i) there is a reasonable possibility that the urine referred to in a certificate given by an analyst under subsection (4) 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) there is a reasonable possibility that the sample was not taken within 3 hours after the person who provided the sample operated a vessel or was a master or pilot of a vessel underway or at anchor; or
(iv) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.
(11) 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 (9).
(12) Evidence of a kind permitted to be given by subsection (2) in a prescribed legal proceeding is inadmissible as evidence in any other legal proceedings.