Where a trial judge observes a party's demeanour in court in circumstances not observable by counsel (e.g., behind counsel), the judge must disclose those observations and the possibility of relying on them adversely before doing so. Failure to do so constitutes a denial of procedural fairness that will generally vitiate the decision, particularly where the observations bear on credibility. The Stead principle requires that relief be granted unless a properly conducted trial could not possibly have produced a different result, and this threshold is very difficult to meet where credibility is in issue.
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