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“At some point, however, he was able to grab Mr. Murdock’s genitals and squeeze them for a period of time. Mr. McMahon stated after this altercation he was injured to the extent that he was off work for 90 days and could not get out of bed for two months." - Judge Paul Scovil

A judge has acquitted a man of assault in a fight that took place at the Chester Basin home of Canadian jazz singer Holly Cole, ruling the dust-up that allegedly left one combatant in bed nursing his injuries for two months was consensual.

The fight broke out on a deck overlooking a cove on July 17, 2018.

“The two pugilists were James McMahon and Brent Murdock. The residence was that of Kevin O’Leary (not of Dragon’s den) and Holly Cole (the Holly Cole, the Jazz Singer),” Bridgewater provincial court Judge Paul Scovil said in a written decision released Friday.

The altercation began after McMahon asked Murdock to leave, said the judge. The court heard Murdock was looking for his truck keys in order to do just that when things got heated.

“Mr. Murdock asked Mr. McMahon if he wanted to take it elsewhere, to which, Mr. McMahon replied ‘no we’ll do it right here,’” said the decision.

Witness Bradley Coolen testified that McMahon accused Murdock of hiding in the bushes and spying on O’Leary and Cole.

“As a result, he said Mr. Murdock lunged at Mr. McMahon,” said the decision. “The two pulled each other down to the deck, wrestled around causing some minor damage.”

For his part, McMahon said he refused when Murdock asked him take it outside. “Mr. Murdock then ran at him and the physical altercation began,” said the judge, summarizing McMahon’s evidence.

McMahon testified he was punched, kicked and almost lost consciousness.

“At some point, however, he was able to grab Mr. Murdock’s genitals and squeeze them for a period of time. Mr. McMahon stated after this altercation he was injured to the extent that he was off work for 90 days and could not get out of bed for two months. He said he had cracked ribs and that he had not yet fully recovered. He also complained that his glasses were broken.”

After the fight, McMahon waved off an ambulance and drove himself home.

Nicole Nicholson, a witness who is legally blind, testified that, with her limited peripheral vision, she saw people in a pile on the deck.

Murdock, the accused, told the court he was invited to the home and arrived there around 1 p.m., spending most of the day on the deck. “He reported that during the course of the time that he was at the residence he drank about four beer,” said the decision.

Murdock testified that, later in the day — after McMahon and Coolen arrived and went inside the home — he asked if he could go inside and sit down. “Mr. O’Leary told him ‘no’ and that he should sit outside. Shortly thereafter Mr. McMahon came out yelling and spitting telling Mr. Murdock that he had to leave. Mr. McMahon then drove his fingers into Mr. Murdock’s chin.”

The case centres on credibility and whether the fight was consensual, said the judge. While Scovil didn’t accept all of Murdock’s evidence, there was a police photo that shows marks on his chin “consistent with Mr. McMahon stabbing him there with his finger. As well the crucial aspect of his comments to Mr. McMahon asking if he wants to take the confrontation elsewhere with Mr. McMahon replying, ‘they would do it right then and there,’ was confirmed by Mr. Coolen’s evidence.”

That raises the defence of consent, said the judge. “The defence of consent has not been disproven by the Crown. Consequently, I am left with reasonable doubt in relation to the offense of assault.”

The alleged victim’s evidence “gave the court pause for concern,” Scovil said.

“Mr. McMahon outlined injuries that could be considered within the category of bodily harm, yet he waved off any assistance from an ambulance which had arrived.

“As well Mr. McMahon spoke of his glasses being broken during the scuffle,” said the judge, noting a police photo shows him “holding an intact pair of glasses.”

The judge wasn’t convinced McMahon’s injuries constituted bodily harm. “Even if there was there was no evidence of a subjective nature that such injuries were intended to be caused by Mr. Murdock.”