Brendan Toohey: Child killer wins appeal for retrial

The death and alleged sexual assault of an 11-month-old baby in 2014 shocked the state, with the gruesome details being too graphic to publish. However the man close to the child has today been granted a retrial after a successful appeal against a sexual assault conviction.

Brendan Toohey, pictured, has earned a legal reprieve for a retrial over charges alleging he sexually assaulted an 11-month-old baby.

• Sick child predator sentenced over sexual messages to ‘boy, 14’
• Coke dealer’s ‘terrible cycle’ to support his drug habit

A NSW man who killed a baby, claiming she had merely fallen off a trampoline, has been granted a retrial over his alleged sexual assault of the infant.

Brendan Toohey was found not guilty of the child’s murder, but found guilty of manslaughter, after the 11-month died in what he told authorities was a horror incident where she split her head on a concrete septic tank.

A post-mortem examination at the time had found the child was also sexually assaulted and Toohey was charged.

The child had died shortly after arriving at Blayney Hospital in the state’s Central West in 2014.

Crime scene photographs of the home where the 11 month old died in 2014.

Toohey’s legal team has successfully argued his trial judge had failed to address alternative explanations for the child’s sexual assault related injuries when finding him guilty.

They had also argued the judge’s questioning of the alternative theories should also not have led to him being convicted.

Three Supreme Court justices on Friday quashed his conviction and ordered a retrial in the District Court.

Toohey was convicted of killing the child after his District Court trial judge agreed he had “lashed out” in anger under the stresses of parental responsibilities.

Toohey is eligible for parole on the charge this September.

The child’s mother had testified in support of Toohey at his trial.

Another witness at his murder trial recalled in the frantic scenes in the aftermath Toohey saying: “Why has she died? Why can’t she breathe? How could she be dead? I don’t want her to be dead. I want her to breathe.”

“I let this happen to (her). It’s my fault,” the witness also recalled him saying.

Toohey himself had told officials he “loved her like his own”.

A separate judge-alone trial later convicted him of also sexually assaulting the baby and he was ordered to spend a non-parole period of six years and three months in jail. That conviction was quashed today.

NEWS TIPS: [e-mail]