Excise and Other Legislation Amendment (Compliance Measures) Act 2004 (91 of 2004)

Schedule 3   Immediate disposal of seized goods

Excise Act 1901

4   At the end of Division 1A of Part IX

Add:

8A Minister may direct which functions are protective service functions

107GB Retaining evidential material of goods immediately disposed of

(1) If goods are dealt with under section 107FJ, the CEO must ensure that, before the goods are so dealt with:

(a) a sample of the goods is taken in accordance with subsection (2); and

(b) a written record of the goods is made.

(2) An officer taking a sample of goods for the purposes of subsection (1) must, in the presence of another officer:

(a) divide the sample into 3 equal parts; and

(b) mark and securely seal each part; and

(c) retain one part for examination by an analyst appointed under section 107GC; and

(d) retain one part for further examination, if necessary; and

(e) retain one part for delivery for further examination by a person nominated under subsection (4), in the event that the owner of the goods requests further examination.

(3) A sample taken (other than of perishable goods) or a record made under subsection (1) must be retained until the later of:

(a) the end of the period of 3 years from the day the sample is taken or the record made; or

(b) if proceedings are commenced in relation to those goods - the proceedings are completed.

(4) If an owner of goods dealt with under section 107FJ requests further examination of a sample of the goods, that further examination is to be performed by a person nominated by the owner who is, in the CEO's opinion, suitably qualified for the task.

107GC Appointment of analyst

The CEO may, by written instrument, appoint an officer or other suitably qualified person to be an analyst for the purposes of this Act.

107GD Evidentiary certificates in relation to goods immediately disposed of

Goods for which evidentiary certificates may be provided

(1) This section applies to proceedings in respect of goods that have been dealt with under section 107FJ.

Evidentiary certificate signed by officer

(2) An officer may sign a certificate stating any of the following:

(a) that a person had, or did not have, a licence, permission or authority under this Act at a particular time;

(b) if a person had a licence, permission or authority under this Act - the details of that licence, permission or authority;

(c) that particular premises were, or were not, the subject of a licence, permission or authority under this Act at a particular time.

Analyst's certificate

(3) An analyst appointed under section 107GC may sign a certificate stating in respect of a sample of the goods taken under section 107GB:

(a) that the analyst was appointed under section 107GC; and

(b) when and from whom the sample was received; and

(c) what, if any, labels or other means of identifying the sample accompanied it when it was received; and

(d) what container or containers the sample was in when it was received; and

(e) a description of the sample received; and

(f) when the sample, or a portion of it, was analysed; and

(g) a description of the method of analysis; and

(h) the results of the analysis.

Certificate is prima facie evidence of the matters stated

(4) A certificate is admissible as prima facie evidence of the matters stated in the certificate and, unless the contrary is proven, a document purporting to be such a certificate must be taken to be such a certificate.

Copy of certificate must be given to defendant

(5) Despite subsection (4), a certificate must not be admitted in evidence in proceedings for an offence in relation to the goods unless the person charged with the offence, or a legal practitioner who has appeared for the person in those proceedings, has been given a copy of the certificate at least 14 days before the certificate is sought to be admitted.

Person giving certificate may be called to give evidence

(6) Subject to subsection (7), if a certificate is admitted in evidence in proceedings for an offence, the person charged with the offence may require the person who signed the certificate to be called as a witness for the prosecution and cross-examined as if he or she had given evidence of the matters stated in the certificate.

(7) Subsection (6) does not entitle the person charged to require the person who signed the certificate to be called as a witness for the prosecution unless:

(a) in the case of a certificate under subsection (3), the prosecutor has been given at least 4 days' notice of the person's intention to require the analyst to be called; or

(b) the court, by order, allows the person charged to require the person giving the certificate to be called.