THE state's forensic laboratory is under the microscope, with lawyers for an accused in an historical rape case in Newcastle being told a massive backlog means crucial DNA evidence may not be provided until the first day of trial.
The trial of Shannon Adrian Murphy in Newcastle District Court in August could be vacated and delayed another year after the Forensic & Analytical Science Service (FASS) said they were "highly unlikely" to comply with a court order to serve an outstanding expert DNA report.
Mr Murphy's legal team, led by defence barrister Elana Scoufis and criminal solicitor James Janke, say the case highlights a "systemic" issue with FASS disclosing expert reports, with the court hearing on Thursday that the current procedure is to prepare a report three weeks out from the start of a trial.
This late disclosure leaves defence lawyers with little time to get their own expert report in reply and can often lead to trials being vacated, delaying justice for alleged victims and those accused of serious crimes.
In the case of Mr Murphy, DNA is the crucial issue in the case and it is understood his lawyers have been asking for the expert evidence to be disclosed since March, 2023.
The delay prompted Mr Murphy's lawyers to raise the matter with Judge McGrath, SC, last week and he made an order that the DPP must serve the forensic evidence, including the expert DNA report, by May 22.
But when the matter was mentioned again on Thursday, Judge McGrath was told that FASS were "highly unlikely" to comply with the court order and, due to a backlog, the most optimistic time frame would see the report ready by the trial date in August.
Mr Murphy has pleaded not guilty to aggravated sexual assault over an alleged attack on a woman in Newcastle's Civic Park on May 3, 2012.
The woman told police she left a nightclub late at night and was walking through the park when she was allegedly sexually assaulted and bitten on the neck.
Murphy was charged with the cold case rape in 2022 when police say they got a DNA hit.
He was initially behind bars, but was granted bail in Newcastle District Court in October last year due, in part, to the lack of disclosure of the DNA expert evidence and the delay in waiting for a trial date.
If the DNA is served late and the defence do not have time to get their own expert report, then the trial could be vacated and a new trial would be unlikely to start until late 2025.
The development in Mr Murphy's case comes as the DPP say they are undertaking an audit of up to 400 rape cases awaiting trial in NSW following criticism from judges about prosecutors running sexual assault cases that were "doomed to fail".
In one case, Judge Robert Newlinds, SC, highlighted systematic failures at the DPP, citing cases where innocent people have been unjustly imprisoned for months awaiting trials destined for acquittal.
