Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.9) [2018] NSWSC 510 Hearing dates: 23 April 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Notice of Motion of 11 April 2018, which refers to further testing for protein markers is dismissed Catchwords: CRIMINAL PROCEDURE – notice of motion seeking an order that the Crown be required to re-test some forensic material – evidence that test sought is no longer performed in Australia – motion dismissed Legislation Cited: Not Applicable Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A Conolly / E Ramsay (Accused) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not to be published until after return of verdict by Jury or further order of the Court. Non publication order lifted on 14 February 2020. EX TEMPORE Judgment 1. This judgment relates to a Notice of Motion filed in court on 11 April 2018, in which the accused moved the Court for an order that the Crown undertake further testing of some exhibits for protein markers referred to in a General Worksheet FB85/306, which referred to an examination of exhibits on 24 July 1985. 2. Correspondence between the Office of the Director of Public Prosecutions ("DPP") and the lawyers for the accused indicates that the DPP has taken advice from the Senior Forensic Biologist at the NSW Forensic and Analytical Science Service who has informed the DPP that the tests being sought to be undertaken are no longer performed at the Laboratory of the NSW Forensic and Analytical Science Service. That expert also says that those tests are not performed in any other jurisdiction in Australia and that after enquiries he is unaware of any international laboratory which would be accredited to do this testing. 3. In those circumstances, Mr Conolly for the accused does not press for the order set out in the Motion. Mr Conolly notes that the legal team for the accused is making enquiries presently as to whether there is any other laboratory which is capable of undertaking the tests and has sought some assistance with respect to some terms used in the worksheet from the DPP. Naturally, the lawyers for the accused are not in a position to say whether there is such a laboratory and, if so, what the mechanics for any such testing would be. 4. In those circumstances, rather than leaving this Notice of Motion on foot as the accused requests, the appropriate course in my view is to dismiss it. That, of course, leaves it open to the accused to seek any further orders, if such are necessary, in the event that a laboratory can be identified which is capable of undertaking the relevant tests. 5. In those circumstances, the order I make is: 1. The Notice of Motion of 11 April 2018, which refers to further testing for protein markers, is dismissed. ********** Amendments 18 February 2020 - Non publication order lifted on 14 February 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2020