Court rejects 123-year-old law to try Paul O’Sullivan

A 123-year-old piece of legislation was used yesterday to try to introduce a potentially damaging piece of evidence against private investigator Paul O’Sullivan and his co-accused, Melissa Naidu, in their kidnapping and extortion trial.

Prosecutor Jabulani Mlotshwa wanted to use Makin vs Attorney General for New South Wales in Australia from 1894, which sets the basis for similar fact evidence to be brought against an accused.

Mlotshwa also wanted to introduce a 2013 civil judgment against O’Sullivan, obtained by former Ekurhuleni ANC councillor Neil Diamond, in which O’Sullivan was excoriated by Acting Judge CE Watt-Pringle.

Watt-Pringle indicted O’Sullivan from further threatening, harassing, intimidating or abusing Diamond. O’Sullivan had tried to dispute the damning transcript of a recording by Diamond but that had been disallowed by Watt-Pringle, in broad terms, as too little, too late.

In a Supreme Court of Appeal judgment in Michael Nduna vs the State, the SCA found it was “settled law that while similar fact evidence is admissible to prove the identity of an accused person as the perpetrator of an offence, it cannot be used to prove the commission of the crime itself”.

Mlotshwa said the accused had pleaded not guilty to the charges brought against them by Cora van der Merwe.

“In their plea explanation, they say if the honourable court deems their actions unlawful, then they did not have the knowledge of their actions,” said Mlotshwa.

He wanted to use the judgment to show that O’Sullivan and Naidu knew what they were doing was wrong when they allegedly kidnapped Van der Merwe.

Any prejudice they suffered would be a result of their own plea explanation, Mlotshwa said.

But Magistrate Ndivhuwo Sethusha told Mlotshwa to find law that was more current and local and bring it to court today to support his application.

Sethusha also wanted to know what the impact of the constitution was.

The trial continues today.