Area of Law – Driving – Drink Driving Offences

An Article about Drink driving and the requirement to serve notice on Informant of intention to challegen BAC certificate

The case of Scully v Semple (2004) VSC 393 concerned amongst other things whether a letter written by the defendant to the police informant, requesting certain information from the police informant, but not specifying the disputed facts as they related to the BAC certificate, conformed with the requirement under s. 58(2) of the Road Safety Act 1986, which provides that defence must provide notice to the police informant if the BAC certificate is to be challeged.

The provisions housed under section 58 are evidentiary in nature, and in essence that section provides that in the absence of notice challenging the validity of the certificate, the certificate is primar facie proof of the facts contained on it (i.e, identify of the person providing the sample, the time, the date, the bac reading, and the identify of the informant taking the sample). The Court ruled that the letter provided by the defendant, did not spell out in any form the nature of the defence intended by be run by the Informant. The Court ruled the Magistrate (who heard the case at first instance) was correct to determine the defendant had provided the necessary notice, and accordingly made no error in finding against the defendant.

The case highlights the importance of full compliance with section 58(2) in preparing a case to challenge any aspect of the bac certificate.


Date: 01/09/2009