Johannesburg - Hope of an acquittal for forensic consultant Paul O’Sullivan in his passport-use violation case could lie with the case of a topless sunbather in Cape Town.
O’Sullivan is applying to have his criminal case thrown out of court after being arrested at OR Tambo International Airport in April for breaching the Citizenship Act of 1995.
He had used his foreign passport to travel outside of the country despite also being a South African citizen.
O’Sullivan remains the first person in South Africa to have been arrested for the relatively minor and lesser-known crime.
As his trial began on Friday in the Kempton Park Magistrate’s Court, his lawyer, Barry Roux, cited the case in the Western Cape courts of a Clifton beachgoer who was arrested for public indecency after removing her bikini top.
The topless sunbather won her case by arguing that other beachgoers who were also topless were warned by police to cover up or face arrest. However, she never got the warning.
According to Roux, O’Sullivan was never warned by immigration officials about the illegality of using his foreign passport, while other people do receive a warning before being arrested.
While O’Sullivan admits to the infraction - which took place in December last year - he has pleaded not guilty on all six charges of contravening the Citizenship Act.
On Friday, Roux asked the court to discharge O’Sullivan prior to the defence making its case.
If successful, O'Sullivan’s Criminal Procedure Act Section 174 application will mean an instant acquittal.
Roux argued that the State had failed to prove its case, namely that O’Sullivan had the will to break the law, and that he was aware of the illegality of his actions.
Roux also pointed out that even police officers who had testified for the State admitted they had only became familiar with the Citizenship Act violation through O’Sullivan’s case.
According to Roux, O’Sullivan also did not intend to contravene the law.
It will be up to magistrate Wynand Nel to decide on the Section 174 application scheduled for September 29.
In another twist in the case, the magistrate’s own level of bias came into question this week.
On Tuesday, the State brought an application for Nel to recuse himself, claiming he had shown bias by relaxing O’Sullivan’s bail conditions to allow the forensic investigator to visit family in London.
State prosecutor Jabulani Mlotshwa also accused the magistrate of speaking in private with O’Sullivan’s attorney, Darryl Furman, outside of court.
Nel, who ruled on the recusal before the Section 174 application, was clearly irritated by claims that he had shown bias.
The magistrate told the court that O’Sullivan remained innocent until proven guilty, and that he would remain neutral throughout the proceedings.
His decision to relax the bail conditions was based on the fact that O’Sullivan had never missed any of his court proceedings and there was no proof that he was a flight risk, he said.
Nel also said his conversation with Furman outside of court was a brief conversation regarding an issue involving an interpreter.
O’Sullivan will be appearing in the Randburg Magistrate’s Court later this month in a separate fraud case.
Saturday Star