Lawyer Marcus Lee said Section 154 of the Criminal Procedure Code makes it mandatory for the charge sheet to contain the particulars of how the alleged offence was committed.
In the present case, he said the time frame stated in the charge claimed that the offence was committed between noon on Dec 5, 2023 and 9.55pm the following day, a time frame in excess of 30 hours.
“The prosecution did not specify any actus reus (action or conduct) on the part of the applicants of any negligent nature,” he said in submissions before Justice Roszianayati Ahmad.
Lee said this had left the applicants, Zaim Ikhwan Zahari and his wife, Ismanira Abdul Manaf, in the dark about the exact nature of the offence they were accused of committing and the specific time it had allegedly commenced and continued.
“They are facing the entire trial in an ambushed manner and cannot be said to have been given the right to fair trial,” he said.
Lee, assisted by Lavanesh Haresh, said the prosecution’s argument that the particulars of neglect could be proven during the trial was misconceived.
“The charge is lacking in ingredients,” he said.
Zaim and Ismanira, both 30, are urging Roszianayati to use her inherent powers to strike out the charge and acquit them.
Meanwhile, deputy public prosecutor Raja Zaizul Faridah Raja Zaharudin asked for the application to be dismissed as the trial was already in an advanced stage.
Raja Zaizul said the prosecution had so far called 20 witnesses, with 10 others due to testify before it closes its case.
She said it was absurd for the parents to claim the charge was ambiguous, given the extensive cross-examination that prosecution witnesses had been subjected to at the trial.
“If the charge is defective, how could the defence have conducted such effective cross-examination of our (the prosecution’s) witnesses?” she asked.
Raja Zaizul, assisted by deputy public prosecutor Aqharie Durranie Aziz, said the exact nature of how the offence was committed would be revealed when the prosecution’s case was ventilated in its entirety.
“At the prosecution stage, we need only prove all the elements of the offence,” she said, adding that sufficient notice had been given to the accused persons as required under Sections 152 and 153 of the Criminal Procedure Code.
Raja Zaizul said the defence had challenged the sufficiency of the charge on Feb 3, before the trial proper commenced, but the presiding sessions court judge, Syahliza Warnoh, dismissed the couple’s preliminary objection.
Roszianayati will deliver her ruling on March 4.
Zaim and Ismanira pleaded not guilty in the sessions court on June 13 last year to neglecting six-year-old Zayn Rayyan.
The charge was framed under Section 31(1)(a) of the Child Act 2001, punishable by a maximum fine of RM50,000, imprisonment of up to 20 years, or both, upon conviction.
Zayn Rayyan was reported missing on Dec 5, 2023. His body was discovered in a stream near his home at Apartment Idaman, Damansara Damai, the following day.
He was believed to have been murdered after an autopsy revealed injuries to his neck and body, consistent with self-defence.