Baby killer Brendon Toohey faces retrial for alleged child rape after judge’s error

Brendon Toohey is a baby killer — but a judge must now decide if he raped his victim before killing her after the judge in his last trial made an error.

Baby killer Brendon Toohey has told a judge he did not rape his 11-month-old victim before he showed up to a country NSW hospital with her bleeding in his arms.

After three trials and seven years of court errors and delays, the horrific case that shocked the state now turns on the word of a now-dead professor.

Toohey arrived at Blayney Hospital in 2014 frantically telling staff the baby girl in his care had fallen off a trampoline and hit her head on a concrete septic tank below.

Professor Tim Lyons, who performed the autopsy on the child, said a single drop could not have created the blunt force trauma that stopped the girl’s heart and claimed her life.

A jury found Toohey guilty of manslaughter, not murder, in 2017.

Brendon Toohey … the horrific case that shocked the state now turns on the word of a now-dead professor.

“(Toohey) struck the child in the way that proved fatal whilst under stress and frustration, trying to cope with her when she was needy and demanding and when he was not able to maintain patience and self-control,” Supreme Court Justice Desmon Fagan concluded.

He was locked up for seven and a half years but became eligible for parole in 2018 after four and a half years.

But Toohey faced a separate trial for raping the child after Professor Lyons found internal hemorrhaging inside the girl’s rectum and concluded the internal injuries were caused by “penetration”.

District Court Judge James Bennett SC, in that 2019 trial, found Toohey guilty of raping the child and gave him four and a half years in prison with three years non-parole.

The Court of Criminal Appeal later found Judge Bennett’s sentence was “manifestly inadequate” and upped Toohey’s sentence.

But Toohey’s legal team appealed the conviction of child rape entirely and the Court of Criminal Appeal quashed Judge Bennett’s verdict.

The house in NSW’s central west.

Toohey had, by then, served his time for manslaughter and was released to await the retrial of the child rape allegation.

He appeared in Orange police station on Monday morning, interrupting Crown Prosecutor Ciro Triscari to deny the police version of events.

“Not guilty, your honour,” Toohey told Judge Leonie Flannery SC at the retrial’s opening.

Mr Triscari told the court the retrial would focus on the expert evidence about the child’s internal bleeding.

Professor Lyons, sadly, has since passed away, the prosecutor said.

Another expert is terminally ill and can not give evidence, the court heard, but the officer in charge of the investigation will front court.

Toohey’s barrister, James Trevallion, said the judge would need to decide if it was “abnormality or injury” that caused the child’s bleeding.

“ (Toohey) denies the allegation saying there is insufficient evidence in the Crown case to prove, beyond reasonable doubt, that the hemorrhaging is an injury and it was caused by the accused,” Mr Trevalllion told the court.

“There are other possible explanations – one of those being that it’s just an unknown cause.”

The trial will resume tomorrow.