In written submissions filed last week and sighted by FMT, the lawyers said there was no clear explanation of what constituted common intention between the boy’s father, Zaim Ikhwan Zahari, and his mother, Ismanira Abdul Manaf.
“None of the prosecution witnesses directly addressed any matter concerning the couple that could establish a common intention under Section 34 of the Penal Code to disregard the child’s needs,” they said.
The lawyers said it was unclear what actions or intentions the prosecution was relying on to establish neglect on the part of the six-year-old boy’s parents.
According to the charge sheet, the neglect is said to have taken place over a period of 22 hours beginning at 12.05pm on Dec 5, 2023.
The lawyers said Zaim was not present when the child first went missing, some five hours before his wife lodged a police report.
In the report, Ismanira said she was heading back to her apartment together with Zayn, who was behind her. The mother said she was carrying Zayn’s schoolbag and some grocery items she had purchased.
According to the report, Ismanira turned around when she could not hear her son’s footsteps any more, only to realise that he was missing.
The defence said investigating officer Hafizee Ismail confirmed that Zaim was at his workplace at the time the boy went missing.
They said police investigations also found that the couple never went near the stream where the body was recovered.
The lawyers also claim there was no direct or circumstantial evidence to link the couple to the charge.
They said Hafizee had, under cross-examination, agreed that a child psychologist would have been in a better position to assist the court by providing information regarding the characteristics of an autistic child.
“Even paediatrician Dr Bernice Lim testified that the evidence of a child psychologist was crucial,” the defence team said, adding that an adverse inference should be drawn against the prosecution for its failure to secure expert testimony on the matter.
They said only a child psychologist could testify as to whether allowing the autistic boy to walk behind his mother amounted to child neglect.
They said a child psychologist, who is a professor from Universiti Kebangsaan Malaysia, was neither called as a witness nor offered to the defence, although Hafizee had told the court that the police had recorded a statement from the professor, whom he was unable to identify.
The defence said that was tantamount to suppression of material evidence.
“If the prosecution were to call material witnesses, we would have the opportunity to cross-examine them and put to them the defence of both the accused,” they said.
The defence said the couple also suffered prejudice and was not accorded a fair trial, as several witnesses had claimed to be under police pressure to implicate Zaim and Ismanira.
They said the prosecution failed to establish a prima facie case and that – based on a maximum evaluation of evidence – the couple ought to be acquitted by the sessions court.
Ismanira and Zaim, both 30, are charged with neglecting Zayn in a manner likely to cause the boy physical harm between Block R of Apartmen Idaman in Damansara Damai and a nearby area, from noon on Dec 5 to 9.55pm the following day.
They are charged under Section 31(1)(a) of the Child Act 2001, read together with Section 34 of the Penal Code, which carries a penalty of up to 20 years’ imprisonment, a maximum fine of RM50,000, or both upon conviction.
Zayn’s body was found in a stream near his home on Dec 6, 2023, a day after he was reported missing.
Lawyer Haresh Mahadevan, Ramzani Idris and H Lavanesh are appearing for the couple while deputy public prosecutors Raja Zaizul Faridah Raja Zaharudin and Aqharie Durranie Aziz are prosecuting.
Trial judge Syaliza Warnoh will deliver her decision on July 21.