The family of a baby girl who died at the hands of her carer say they are gutted by news he has successfully appealed his conviction for sexually assaulting the infant.
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Brendon Toohey, 41, had his conviction for raping the 11-month-old girl quashed by NSW Court of Criminal Appeal last week, making him eligible for parole immediately.
The court ruled that the judge presiding over Toohey's sexual assault trial, held as a judge-alone trial, had failed to give adequate reasons for his guilty verdict.
The baby girl's paternal grandmother, who cannot be named for legal reasons, said there were "no words" to describe how the family felt after hearing the news the rape conviction had been quashed.
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"My mind is just in a whirlpool, I just wouldn't even know where to start," she said.
The grandmother commended the work of all officers involved in her grand-daughter's case, as well as the Office of the Director of Public Prosecutions, saying "everyone has done everything they could do".
She also acknowledged that regardless of what happens from here, nothing will bring her grand-daughter back.
Toohey has been in custody since April 2014.
He arrived at Blayney Hospital with the infant on the morning of April 3, 2014, telling medical staff she had fallen from a trampoline and hit her head on a septic tank in Mandurama.
Despite the efforts of hospital staff to resuscitate her, the 11-month-old was pronounced dead about an hour later.
In the days following the infant's death, Toohey was charged with the baby's murder and sexual assault, based on an assessment of her injuries.
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 Natalie Adams
In 2018, Toohey was convicted of the infant's manslaughter and jailed for seven-and-a-half years with a non-parole period of four-and-a-half years.
In a separate judge-alone trial before Judge J Bennett, Toohey was also convicted of the sexual assault of the same infant and was jailed for four years and six months (three years non-parole).
In handing down its decision last week, the Court of Criminal Appeal said 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 some of the girl's injuries, 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.
Justices Adams, Mark Leeming and Stephen Rothman ordered a new trial but acknowledged that it was up to prosecutors to determine if the charge should still be pressed.
The case will be mentioned in Sydney's Downing Centre District Court on July 31.
Toohey, who remains in custody, is due to face the parole authority on August 14. He was last before the board on July 10 when the matter put over for submissions.
Toohey's minimum jail term for the sexual assault offence was to expire in September.
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