A MAN accused of the sexual assault of an 11-month-old baby girl before her 2014 death has been found not guilty following a retrial.
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Brendon Toohey, now 42, was originally found guilty of the child's manslaughter in 2017 and, in a separate judge-alone trial in 2018, was found guilty of sexual assault.
Toohey arrived at Blayney Hospital, from Mandurama, with the unconscious baby in April 2014, telling staff there she had fallen from a trampoline.
He successfully appealed the sexual assault conviction, which was quashed by the Criminal Court of Appeal in 2020.
The matter went to a retrial before Judge Flannery in the District Court, Downing Centre last week, where Toohey was acquitted on Friday.
Toohey had always denied the allegation, with the defence arguing there was insufficient evidence to determine beyond reasonable doubt that the haemorrhaging seen in the child's rectum was an inflicted injury.
Judge Flannery heard from various witnesses during the trial, saying she had ample opportunity to observe the manner in which they gave their evidence.
One absence of significance, however, was Professor Tim Lyons, who performed the autopsy on the infant, and whose opinion the Crown case relied upon.
Professor Lyons died prior to the hearing.
Judge Flannery spoke of the onus on the Crown to prove the allegation to the criminal standard of beyond reasonable doubt.
"Suspicion, even the gravest of suspicion, cannot amount to proof beyond reasonable doubt," she said.
The Crown's case relied on a number of circumstances which, taken together, according to the Crown, "allows a conclusion to be drawn the accused had sexual intercourse with the deceased".
The trial heard from a number of experts, who gave conflicting evidence regarding the bleeding observed by Professor Lyons in the post-mortem.
In handing down her decision, Judge Flannery said she had regard for a number of factors, which included the absence of any evidence the accused had a sexual interest in female infants. The fact he had never been the subject of any allegations of a sexual nature was also taken into account.
Judge Flannery said she was not satisfied beyond reasonable doubt the accused sexually assaulted the infant.
"Accordingly, I find the accused not guilty and he is discharged," she said.
Toohey, watching via audio-visual link at Orange Police Station, simply replied: "Thank you, your honour."