An appeal court condemned the changing of an eyewitness’s account. The trial transcript identifies the private investigator involved—and raises troubling questions about his evidence.
“It was changed because it did not suit their narrative.”
That was the conclusion of three Johannesburg High Court judges concerning an eyewitness statement in the prosecution of George Barkhuizen for murdering his wife, Odette.
The judgment, delivered on 22 March 2023, overturned his convictions and sentences for murder and unlawful possession of a firearm and ammunition. His fraud conviction was outside the appeal and remained unaffected.
Acting Judge Peet Johnson, with Judges Meshack Mabesele and Cassim Moosa concurring, described investigating officer Constable Naomi Weideman as a “dishonest witness”. The court found that a statement identifying an attacker whose appearance excluded Barkhuizen had been replaced with one that left the attacker’s identity conveniently uncertain.
The judgment refers to an unnamed private investigator. The trial transcript supplies the name: Paul O’Sullivan.
More significantly, O’Sullivan’s own evidence explains his involvement in obtaining the replacement statement.
A description that did not fit
Odette Barkhuizen was shot outside the couple’s business premises on 11 June 2015.
Employee Robert Kenga initially told police that he saw an unknown black man wearing a tracksuit, holding a firearm. He described the man as approximately 1.67 metres tall and slender.
Barkhuizen was neither black nor slender. Kenga knew him well and testified that he would recognise him from a distance.
The description subsequently changed. In the replacement account, Kenga could not identify the person’s race or even confidently distinguish between a man and a woman. The person wore a black top or hoodie.
The appeal court rejected the suggestion that this was an innocent correction.
“The statement needed changing to a vague description of the attacker in order to implicate the accused by way of inferential reasoning and circumstantial evidence,” Johnson wrote.
The court found that the trial judge, Judge Ramarumo Monama, had failed properly to evaluate the eyewitness evidence. Its conclusion was unequivocal: the attacker Kenga saw was not Barkhuizen.
O’Sullivan’s own account
O’Sullivan testified that, after interviewing Kenga, he asked the investigating officer to return and obtain a more detailed statement.
He went further. He told the court that he had summarised the information obtained, “tasked Constable Weideman” and suggested that she take another statement.
When defence advocate Sita Kolbe asked whether Kenga had produced a new statement after speaking to him, O’Sullivan answered: “Absolutely.”
The subject was not merely some peripheral detail omitted by an overworked policeman.
O’Sullivan explained that he had identified a discrepancy concerning the assailant’s skin colour. The original statement described a black man, but Kenga allegedly could not tell O’Sullivan whether the person was black or white. O’Sullivan said this prompted him to return to Weideman.
There was another private investigator, Peter Kluge, whose evidence concerned CCTV enquiries. His involvement means that the judgment’s unnamed investigator cannot be identified merely by occupation. O’Sullivan’s admissions provide the connection.
They establish that he prompted the further statement and discussed the identification discrepancy with the officer who obtained it.
Whether he knowingly directed the fabrication of evidence is a further question. The appeal judgment does not expressly make that finding against him personally.
The cellphone claim that unravelled
O’Sullivan’s credibility encountered another substantial difficulty.
In his evidence-in-chief, he denied telling Barkhuizen that cellphone records placed him at the crime scene at the time of the murder.
The recorded interview contradicted him.
“We place you at the crime scene with your phone at the time of the murder,” he had told Barkhuizen.
Confronted with the transcript, O’Sullivan accepted that the proposition was incorrect. His initial denial concerned his own words, not merely a technical disagreement about cellphone evidence.
His explanations were also uncomfortable companions.
He described putting propositions during interviews to elicit a response, invoking the example of telling one suspect that another had implicated him. Later, he said that he had genuinely believed the cellphone records placed Barkhuizen at the scene.
An investigative proposition presented as established fact requires scrutiny. A witness’s denial that he made it, followed by an admission when confronted with the recording, requires scrutiny of the witness.
Calling it a “supposition” does not resolve that contradiction.
Recordings, suggested answers and unanswered questions
The recording of the lengthy Kenga interview presented further difficulties.
O’Sullivan described a practice of recording interviews and having them transcribed. Yet his explanations for the unavailable material included a blank recording file and an earlier written response saying that the item could not be traced and that they would keep looking.
He also said that he had not considered transcription important at the time.
Two Kenga interview transcripts were eventually produced as exhibits DD8 and DD9. It would therefore be wrong to report that no interview material was disclosed. How those recordings related to the unavailable lengthy interview was not adequately explained in the passages examined.
The available material also complicates O’Sullivan’s claim that he did not suggest answers. In DD8, he supplies propositions about poor visibility and proposes dates for witnessing the will despite Kenga’s uncertainty.
Leading questions do not establish fabrication. Nor does an unavailable recording prove deliberate suppression. But both weaken an unqualified account of a neutral, meticulously documented investigation.
Fairness requires acknowledging that Kenga denied being pressured by O’Sullivan. In DD8, Kenga himself introduces the black top and hoodie description. O’Sullivan denied coaching him and maintained that he sought to correct an inadequate statement.
The appeal court nevertheless rejected the innocent explanation for the change.
The defensible conclusion is that O’Sullivan was materially involved in initiating the replacement statement that the court condemned. His testimony also contains specific contradictions sufficient to warrant serious reservations about its reliability.
That does not amount to a judicial finding that he committed evidence fabrication.
It does leave a pressing question: how did an eyewitness account excluding Barkhuizen become an account capable of accommodating the prosecution’s theory—and why did the trial court fail to confront what three appeal judges found so deeply troubling?