Man fights allegations he raped baby before death

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Injuries to a baby caused by alleged rape before she was killed could have been caused by an object, a court said.

Brendon Toohey has denied allegations that he sexually assaulted the 11-month-old girl who died at his hands in April 2014.

Toohey was convicted in 2017 of manslaughter after transporting the girl to Blayney hospital near Bathurst after receiving a blow to the head.

He had told police that she had fallen from a trampoline onto a concrete septic tank while his back was to her.

However, an autopsy found that a single blow could not have caused the blunt trauma that resulted in his death.

Camera Icon The trampoline that Brendon Toohey claimed the 11-month-old baby fell to. Credit Provided: Provided

Toohey, 42, was sentenced to 7 years in prison with a four-year and six-month non-parole period.

After a separate trial, he was found guilty of raping the child before his death after a report by Professor Tim Lyons concluded that the bleeding inside his rectal canal was caused by penetration.

The Crown argued that the act of penetration was in a context of frustration and anger, but that it was clearly a deliberate act.

However, that sentence was overturned by the Court of Criminal Appeal last year and he now faces another trial by a judge alone in Sydney Downing Center District Court.

He has pleaded not guilty to one count of having sex with a person under the age of 10, as his lawyer previously told the court that there was not enough evidence to convict him.

Professor Lyons has since died, the court heard, and the Crown is relying on other expert testimony.

Prosecutor Ciro Triscari said the only rational explanation for the girls’ internal bleeding was penetration.

Camera IconBrendan Toohey has pleaded not guilty to one count of having sex with a person under the age of 10. Credit: provided

On Tuesday, he pointed to an expert report from Professor Lyons’ report who said the bleeding could have been caused by something smooth-walled like a pencil or finger.

I believe all I can say about the nature of the object, if an object was used, is that the surface was smooth, medical examiner Peter Ellis told court on Tuesday.

Because a sharp object is more likely to damage the liner. Professor Lyons’ suggestion was not unreasonable but would not necessarily be comprehensive.

The trial before Judge Léonie Flannery continues.

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