PF v DM 2015

DM, an accused, was refused by the Criminal Appeal Court to petition the recovery of a psychiatric report of his wife so that he could use this in his own defence. This report was prepared for a separate matter two years prior, but DM’s legal team argued it should be allowed to be recovered as it would bring to light her creditability, as she was the complainer in the matter in which DM was accused.

DM was accused of assaulting his wife. The report was prepared to ascertain that his wife was not fit to stand trial on a matter where she was an accused. The appellant argued this report was material in his defence and there would be prejudice if he was not to be gave the report, although it was admitted by the appellant that he did not know for certain the contents nor the conclusion of the report. This argument was firstly made before the sheriff who refused to allow this. The appellant then went to the Sheriff Appeal Court on the basis the sheriff has erred. The order for recovery of the report was also refused at the Appeal Court.

The Lord Justice Clerk said: “It appears that the exercise in which the court is being asked to engage is the classic ‘fishing’ diligence. It is also designed in part to pursue an entirely collateral matter, that is to say whether the complainer has misled the prosecution in some way about the state of her mental health. For material in a psychiatric report to be relevant in this case, it would either have to support a proposition, which is nowhere alleged, that the appellant’s mental state is such that she is unable to distinguish between right and wrong, or that she is suffering from some specific condition which causes her to lie or to be unreliable.” It was also noted by the Appeal Court that the accused has already obtained the complainer’s medical records in any event.