Sask. man convicted of attempted murder for drunken beating of his ex gets a new trial

Cory Smockum. (Courtesy: Twitter)

A man convicted of attempted murder after beating his partner in a drunken brawl is getting a new trial as Saskatchewan’s appeal court called the verdict the “product of a miscarriage of justice.”

Cory Smockum, 38, was charged with attempted murder, aggravated sexual assault and choking in connection to an incident involving his then-girlfriend on Oct. 13, 2018. He was found guilty of attempted murder in February 2020, but after 10 hours of deliberations, the jury of 12 could not come to a unanimous decision on the other two charges.

Smockum was later deemed a dangerous offender and handed an indeterminate sentence.

But in an Aug. 16 decision, a panel of three justices on the Saskatchewan Court of Appeal overturned the conviction and ordered a new trial. It says the jury was left with inadmissible and prejudicial evidence, and wasn’t adequately charged to consider Smockum’s claim of self defence.

According to Justice Georgina Jackson, Smockum and A.L. — who cannot now be identified because of a publication ban — were in a relationship for several months but had broken up prior to the event of October 13, 2018.

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“It was officially over, but they agreed to attend and participate in a quad rally together,” Jackson writes.

“During the course of that day, there was an altercation between them. Each sustained injuries; A.L.’s were considerably worse than Mr. Smockum’s. The police were called, Mr. Smockum was arrested, and he and A.L. were both hospitalized.”

Court heard the two were drinking heavily that day, both at a bar in Hanley, Sask., and in the garage of another couple — where the violence would later take place.

The garage where Cory Smockum allegedly assaulted A.L. (Court exhibit)

A.L. testified that Smockum accused her of flirting with another man at the bar and got aggressive. When they returned to the couple’s garage alone to retrieve their quad and go home, A.L. said Smockum threw her on the concrete floor and asked if she was “scared of him, yet?”

She testified he then got on top of her and continuously punched her in the face, choking her into unconsciousness. That’s when she alleges the sexual assault took place.

“I made peace with dying that night,” she told court in 2020.

But Smockum pleaded self-defence. He testified that when they arrived at the garage, she swung a hammer at him, striking him in the head and ribs. Then, he told court he punched her in the face and “choke-slammed” her to the ground, in a fight-or-flight response.

When Smockum took the stand, the Crown questioned why he didn’t tell doctors or police about the hammer attack.

“You had an opportunity to tell the police who located [you that] she attacked you. You had an opportunity to tell the people in ambulance she attacked you,” the Crown said, according to the transcripts.

Smockum said there was an RCMP officer with him in the ambulance and at all times in the hospital.

“Any time you phone a lawyer they say, ‘don’t say anything. Don’t say anything at all.’ You know, whatever. So, with that being said, when there was an R.C.M.P. officer right there with the hospital staff, in the same room, I wasn’t going to say anything,” Smockum told court.

In her final address to the jury, the Crown encouraged them to draw a conclusion from Smockum’s silence.

“And what did he tell them? Oh, wait. What didn’t he tell them. ‘She attacked me with a hammer.’ Nothing. Not a word of it. Not a word of it, because it didn’t happen.”

But in her written decision from the appeal court, Jackson says it’s an error to infer ill intentions when someone exercises their right to remain silent in front of police.

“[The] right to remain silent is a principle of fundamental justice … and the trier of fact could not draw any inference against [an accused] for having exercised that right,” Jackson wrote, quoting a 1990 Supreme Court ruling.

The appeal court also concluded the judge should not have allowed the Crown to rely on statements in Smockum’s hospital record as fact, since they included notes based on A.L.’s statements to hospital staff that it considered hearsay evidence.

Jackson also took issue with the Crown’s use of what it calls “bad character evidence” at trial — persistently cross-examining him about why his family wasn’t present in court, whether or not they supported him, and if his own brother believed he intended to kill A.L.

According to Jackson, bad character evidence creates a risk of “reasoning prejudice” for the jury. They were being invited to infer guilt “because other people purportedly believed Mr. Smockum to be guilty,” diverting their focus from the factual evidence.

The appeal court quashed his conviction for attempted murder and ordered a new trial.

Smockum was ordered back into custody until he could apply to the court for release pending trial.

-With files from Laura Woodward