FEBRUARY 16 — There are two reported prosecution of mothers who were charged under section 302 the Penal Code (PC) for the murder of their newborn babies in recent years.

The first is the case in 2018 of an Indonesian who came to Malaysia in 2014 to earn a living for her family back home. Sometime in November 2017, she worked as an operator in the Panasonic factory in Shah Alam.

She met her Nepali boyfriend and they fell in love with each other. She then realised she was pregnant. She was only 21 years old. It was her first pregnancy and it was out of wedlock.

Meanwhile, she was informed that her boyfriend’s contract was expiring and he would be sent back to his country at any time. He was indeed sent home. As a result of that, she felt hopeless and had difficulties sleeping. She cried by herself, lost her appetite and was unable to focus at work.

These events led to the incident of her throwing her newborn baby out from the toilet window at her hostel in Hentian Kajang, Selangor. She was charged for the murder of the newborn baby.

The High Court noted that she made no attempt to abort the pregnancy. She was prepared to plead guilty under section 309A PC (infanticide) at the earliest stage before the trial proceeded. Through her solicitors, twice she made representations to the Public Prosecutor (PP), each was rejected by the PP.

Prior to the trial on the charge of murder, she had been remanded in Penjara Wanita Kajang for almost two years. (see Public Prosecutor v Sri Rahmadini [2021] MLJU 2242)

At the trial, she was called to enter her defence at the end of the prosecution case. In her defence, she called the Forensic Psychiatric Specialist from Hospital Bahagia Ulu Kinta, Tanjung Rambutan, Perak as the second defence witness (DW2). 

DW2 had examined her upon the application from the Kajang Magistrate’s Court under section 342(3) of the Criminal Procedure Code (CPC).

DW2 testified that she suffered from depression based on all the symptoms for “Adjustment Disorder with Depressed Mood”. In DW2’s medical report, it was stated as follow:

“[Pesakit] menghidap penyakit Penyesuaian Diri Dalam Menangani Stress Dengan Gejala-Gejala Kemurungan (Adjustment Disorder with depressed mood) dan mempunyai sejarah penyakit darah tinggi semasa mengandung (Pregnancy Included Hypertension/Pre-Eclampsia).”

The diagnosis was based on the criteria listed in the globally accepted mental health guideline, the Diagnostic and Statistical Manual of Mental Disorder Version 5 (DSM 5) which indicates adjustment disorder that occurs when an individual undergoes difficulty in handling and/or adjusting to sources of stress such as major life changes or loses.

The symptoms that are described in DSM 5 were consistent with the presence of an identifiable stress source (the boyfriend having been sent back to his country of origin), the background of the incident and the outcome observed during her stay in Hospital Bahagia.

DW2’s assessment further noted that she had not fully recovered from the effects of the giving birth and the confusion affected her rational judgement and decision. The impulsiveness, lack of plan and no effort of concealment of the evidence demonstrated her imbalance of mind.

Internal (existing adjustment disorder pre-eclampsia) and external factors (poor socioeconomic status, unmarried, child born out of wedlock) contributed to the short-term adjustment disorder with depressed mood. There was also an isolated case of her crying due to a nightmare depicting the deceased baby, which suggested her depression was caused by loss of the baby.

The trial High Court judge accepted her defence and found that she had an imbalance of mind and adjustment disorder with depressed mood as well poor coping skills at the time of the offence. The pre-eclampsia too contributed to the imbalance of mind.

Accordingly, the trial judge decided that the charge should be reduced to section 309A PC for the offence of infanticide. The provision reads as follow:

“When any woman by any willful act or omission causes the death of her newly-born child, but at the time of the act of omission she had not fully recovered from the effect of giving birth to such child and by reason thereof the balance of her mind was then disturbed, she shall, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, be guilty of the offence infanticide.”

The punishment for the offence is at the discretion of the Court, with imprisonment for a term which may extend to twenty years, and shall also be liable to fine. (section 309B PC)

The second case was two years earlier in 2016, where a newborn baby, with the umbilical cord (tali pusat) still attached, was thrown out from level 18 of the mother’s home in Danau Kota, Kuala Lumpur. 

The mother was charged for the murder of the newborn baby. She was arrested while still in the bathroom, with blood as a woman who had undergone childbirth. (see Public Prosecutor v Norazwani bt Mohd Noh [2017] MLJU 776)

The pregnancy was out of wedlock.

Needless to say, she was charged and tried for murder under section 302 PC. At the end of the prosecution case, she was called to enter her defence. During her defence, the Senior Consultant Forensic Psychiatrist Expert, a psychiatrist, was called to testify as the first defence witness (DW1).

DW1 testified that she was not in her right mind or was hallucinating when the offence was committed. She was therefore not aware of the cause or effect of her act. The medical report from DW1 was eventually accepted and tendered as evidence.

After hearing both parties — the prosecution and the defence — the trial High Court judge found that the offence was indeed committed. But, the defence of unsoundness of mind at the time when the offence was committed had been raised.

The trial judge accepted the defence and found that she was not in her right mind when the offence was committed. DW1 confirmed that she was insane and of unsound mind at the time of the offence. 

She was not able to weigh the cause and effect of her act by nature or by the law. She was incapable of knowing the nature of the act alleged as constituting the offence or that it was wrong or contrary to law.

The trial judge was of the opinion that due to her unsoundness of mind, she was not able to determine whether her act was against the law. Accordingly, she was acquitted from the charge of murder under section of 302 PC.

She was consequently ordered under section 348 CPC to be placed in Hospital Bahagia Ulu Kinta, Perak, until the pleasure of the Yang di-Pertuan Agong was obtained.

The above shows that whether it is murder or infanticide, the report of the Forensic Psychiatric Specialist is crucial. The expert report can even accord the accused a defence of insanity or unsoundness of mind under section 84 PC.

So, it is of concern that news reports of the raped teen, who was charged for the murder of her newborn baby and denied bail, did not allude to the Magistrate making an order for observation in any psychiatric hospital of the teen.

It is hoped, however, that the PP — that is, the Attorney General (AG) — will exercise his powers under section 342(5) CPC to order that the teen be sent to a psychiatric hospital for observation for one month.

Whether it’s murder or infanticide, or unsoundness of mind, the psychiatric report of the teen is crucial.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

https://www.malaymail.com/news/what-you-think/2022/02/16/murder-or-infanticide-or-unsoundness-of-mind-hafiz-hassan/2041963