Brendan James Smith appeared in Orange Local Court on Monday and will reappear there on September 18.

The court appearance followed another in the Supreme Court last week, which led to the 39-year-old being released from jail to live with his mother while on strict conditional bail.

Smith had been on remand in jail for the previous eight months, after being charged with digitally penetrating a five-year-old girl at a public toilet at Elephant Park on November 18, 2016.

However, Justice Geoffrey Bellew last week cast doubts over the strength of the case against Smith.

Justice Bellew said he would “go so far as to categorise the Crown's case as weak”.

The court heard DNA swab samples taken from the girl after the alleged assault were not sent for forensic analysis until March this year.

Crown prosecutor Colin Shaw said the preliminary results showed no match with Smith's DNA.

Significantly, the court heard, no male DNA at all was located in a swab taken from the girl's genitals and the accused’s DNA was able to be excluded from the inside of her underpants.

“I think, in a nutshell, while the DNA will not be determinative, it is certainly not corroborative of the charge," Mr Shaw said.

The court also heard that the child had told different accounts of the alleged assault, including whether she had been touched inside her vagina.

Justice Bellew criticised the investigating police for waiting five months to have the DNA swabs analysed.

“There was no explanation whatsoever why this was so and its unsatisfactory nature needs no further comment,” Justice Bellew said.

“This is not a complicated factual case. The evidence could hardly be described as voluminous ... much of the evidence was obtained on the very day almost eight months ago on which the offence is said to have been committed.”

While Smith has a lengthy criminal record dating back to his youth, Bellew noted there was “nothing whatsoever” in his history similar in nature to the current charge.

The bail conditions Justice Bellew imposed effectively amount to placing him under house arrest.

Smith must live with his mother in Orange and can only leave his home in her company and for specifically approved purposes, which include attending court, legal conferences and the police station.

The NSW Supreme Court heard last week that the girl was at Elephant Park with her mother and sister in November last year when she asked to go the toilet.

The girl mistakenly entered the male bathroom and when she emerged told her mother: “the man touched me on the gina and it hurt.”

The girl’s mother saw a man leave the toilet block and told a member of the public who had just arrived at the park what had happened and asked for help.

The bystander – who identified the man as Smith as he walked away and from a distance of about 15 metres – had gone to school with Smith but had not seen him since he was in his mid-teens, more than 20 years ago.

Smith was arrested the following day and charged with having sexual intercourse with a child under the age of 10.

Monday’s appearance was to set a date for a hearing to determine whether there was enough evidence for the case to go to trial.

That hearing has been set for September 18.