Baby killer Brendon Toohey has had his conviction for raping an 11-month-old girl quashed by a NSW appeal court, making him eligible for parole immediately.
The NSW Court of Criminal Appeal on Friday ruled the judge presiding over the 31-year-old’s sexual assault trial without a jury failed to give adequate reasons for his guilty verdict.
Toohey has been in custody since April 2014, when he arrived at Blayney Hospital, near Bathurst, with the unconscious girl.
She died of blunt force trauma atypical of a simple fall and had bleeding in her rectum, leading detectives to accuse Toohey of both homicide and child rape.
A NSW jury found him guilty of the girl’s manslaughter before Judge James Bennett heard the sexual assault trial in late 2018.
The trial was beset by delays.
Hearings took place on four days between early September and mid-October while the verdict was given in November.
In March 2019, when giving his verdict reasons, Judge Bennett only briefly explained why he preferred certain expert evidence over other expert evidence.
He also didn’t provide reasons for why he rejected the part of the defence case related to the absence of certain damage to the girl’s rectum, appeal judge Natalie Adams said.
“I have come to the view that the significance of the evidence the trial judge failed to mention in his reasons means that the applicant has established error,” Justice Adams said on Friday.
The appeal court ordered a new trial but acknowledged that it was up to prosecutors to determine if it still wanted to pursue the charge.
Toohey’s minimum jail term for the sexual assault charge was to expire this September.
The non-parole period for his seven-and-a-half-year manslaughter sentence ended in October 2018.