57BEvidentiary provisions—oral fluid tests

57B Evidentiary provisions—oral fluid tests ***approved analyst*** means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified analyst for the purposes of this section; S. 57B(1) def. of *approved laboratory* inserted by No. 5/2016 s. 5(1)(b). ***approved laboratory*** means a laboratory that has been approved by an Order of the Governor in Council published in the Government Gazette for the purposes of this section; S. 57B(1) def. of *properly qualified analyst* amended by No. 5/2016 s. 5(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 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). (2) If a question as to the presence of a prescribed illicit drug in the body of a person at any time is relevant— (a) on a trial for murder or manslaughter or for negligently causing serious injury arising out of the driving of a motor vehicle; or (b) on a trial or hearing for an offence against Subdivision (4) of Division 1 of Part I of the **Crimes Act 1958** arising out of the driving of a motor vehicle; or S. 57B(2)(c) amended by Nos 81/2006 s. 44(3), 93/2009 s. 49(2)(d). (c) on a trial or hearing for an offence against section 318(1) or 319(1) of the **Crimes Act** **1958** arising out of the driving of a motor vehicle but not the operating of a vessel; or (d) on a hearing for an offence against section 49(1) of this Act; or (e) in any proceedings conducted by a coroner— then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given— (f) of the providing by that person, after that person drove or was in charge of a motor vehicle, of a sample of oral fluid under section 55E; (g) of the analysis of that sample of oral fluid by a properly qualified analyst within twelve months after it was taken; (h) of the presence of a prescribed illicit drug in that sample of oral fluid at the time of analysis. (3) 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 of oral fluid was provided 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. 57B(4) substituted by No. 5/2016 s. 5(2). (4) A certificate, containing the prescribed particulars, as to the presence in any sample of oral fluid of a substance that is a prescribed illicit drug— (b) stating that the sample of oral fluid 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 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. (6) 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. (7) 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. (8) 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 provided, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly. (9) The court must not grant leave under subsection (8) 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 oral fluid 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 oral fluid referred to in a certificate given under subsection (3) 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) there is a reasonable possibility that the sample was not taken within 3 hours after the person who provided the sample drove or was in charge of the vehicle; 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. (10) 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 provided, to attend the court on the hearing of an application for leave under subsection (8). (11) Evidence of a kind permitted to be given by subsection (2) in legal proceedings of a kind referred to in subsection (2)(a), (b), (c), (d) or (e) is inadmissible as evidence in any other legal proceedings.