A trial judge who finds key witnesses unreliable must test their evidence against contemporaneous documents before making credibility findings. Failure to consider contemporaneous documentary evidence when assessing witness credibility constitutes the type of error recognised in Fox v Percy, warranting appellate intervention even where findings are based on credibility. Where the trial judge's error infects the credibility findings and the appellate court has not seen the witnesses, a retrial rather than substituted findings is the appropriate remedy.
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