When judicial review and appeal proceedings arising from the same hearing are heard together, the court must carefully distinguish the material permissible for each proceeding. On certiorari, the court is confined to the record and the material before the decision-maker at the time of the impugned decision; it cannot consider subsequent events or their consequences. A notice under s 67 of the Evidence Act 2008 that fails to precisely identify the applicable sub-sections of s 65 is not necessarily fatal where no prejudice flows and the relevant sub-sections are among those identified. A Magistrate must consider the statutory definition of 'not available' in the Evidence Act Dictionary before determining whether reliance on s 65 constitutes an abuse of process.
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