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1. On 17 February 2026, I ruled on two applications for pre-trial evidentiary rulings. A technical malfunction with the court recording system prevented reasons being given orally on that day. These are my reasons for those rulings.

Advance ruling on the admissibility of the evidence of Gail Cantle

Introduction

2. The prosecution has applied for an advance ruling in relation to the admissibility of a representation made by Mr Palasics to Gail Cantle, a victim liaison officer with the Australian Federal Police who visited him in hospital on 10 November 1999. The representation recorded in her notes is: “Also he stated that he saw one drinking out of the fridge. He glimpsed it - too scared to move in case they cam[e] back to him”. The representation is sought to be admitted under s 65(2)(c) of the Evidence Act 2011 (ACT).

Previous ruling

3. Amongst the many rulings in DPP v Fabriczy (No 3) [2025] ACTSC 487, one of the matters dealt with was whether or not previous representations made by Mr Palasics about a variety of matters during an interview with Detective Constables Smith and Stafford on 16 November 1999 were admissible under s 65 of the Evidence Act. These included (as item 6(g) of the amended notice of intention to adduce hearsay evidence dated 26 June 2025) Mr Palasics telling police that he “saw the man drinking something from the fridge”.

4. I found that the interview was not conducted shortly after the asserted fact occurred and as a consequence the representations made in it could not be admissible pursuant to s 65(2)(b). It was therefore necessary to consider the operation of s 65(2)(c): at [86]-[87].

5. I had earlier explained the operation of s 65(2)(c) as follows (at [28]-[32]): Section 65(2)(c): “circumstances that make it highly probable that the representation is reliable”

The formulation in s 65(2)(c) has two particular features: (a) the reference to “circumstances”; and (b) the threshold being that it is “highly probable” that the representation is reliable. When combined, these concepts contain a single protective threshold for admission of evidence. That is in contrast to paras (b) and (d), which each require two separate circumstances to exist which, in combination, provide protection to the party against whom hearsay evidence is to be admitted. In particular, when compared with s 65(2)(d), it is clear that the “highly probable” (as opposed to merely “likely”) threshold in s 65(2)(c) is doing the protective work that s 65(2)(d) does by requiring that the evidence be “likely … reliable” combined with the additional requirement that the statement be against the interests of the person who made it at the time that it was made. The reference to “circumstances” indicates that what is being referred to are the objective circumstances in which the statement was made: Sio at [70]. The scope of the circumstances which may be taken into account was the subject of somewhat different approaches in Mankotia, Conway and Williams. These decisions were examined in some detail by Mason P (Hulme and Simpson JJ agreeing) in R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 in order to reconcile the differences. The outcome of that exercise (at [34]-[36]) may be summarised as follows: (a) Each of the authorities focused upon the circumstances of the making of the previous representation. (b) Each excluded evidence tending only to prove the asserted fact. (c) The point of disagreement between the authorities was whether it was legitimate to resort to inconsistent or consistent statements made by the maker of the previous representation or other circumstances directly touching on the credibility of the maker at the time of the representation. (d) On that issue, the decisions of the Federal Court in Conway and Williams should be followed so far as the approaches in those decisions involve: (i) “focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable”; and (ii) “excluding evidence tending only to prove the asserted fact”. This approach was endorsed by the High Court in Sio at [69]-[71], where the court concluded that “the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made”. In relation to s 65(2)(d), the judgment in Sio emphasised that the focus was not upon unreliability but upon the circumstances that make it likely that the representation was reliable. Applying that reasoning to s 65(2)(c), the focus must be upon whether the positive proposition that the circumstances made it highly probable that the representation was reliable is established. Casting the matter in that way emphasises the magnitude of the positive burden that must be discharged before evidence may be admissible under this paragraph.

6. In relation to the representation made to Detective Constables Smith and Stafford on 16 November 1999 generally, I said (at [88]-[89]): So far as the circumstances in which the representations were made are concerned, they were made during an interview with police. The interview involved recollection of traumatic events more than nine days previously. There is nothing in the circumstances that would indicate that Mr Palasics was trying to do other than his best to recall, in detail, the events that occurred. The circumstances were such that Mr Palasics would have had a motivation to assist police. He was the victim of the offending and his wife had died as a consequence of it. The submissions on behalf of the accused were that this motivation to help police may itself be a source of unreliability.

7. As to one of the burglars drinking from the fridge, the reasons provided as follows (at [92]): It is necessary to address individually one important aspect of the representations, listed at [6(g)] of the Hearsay Notice, which is within the highlighted portions of the transcript that shows the representations sought to be admitted. In his answers to questions 445-448, Mr Palasics described having seen one of the offenders drinking from the fridge. That is obviously evidence of significance in relation to the DNA evidence alleged to have been obtained from items within the fridge. This is the first representation made by Mr Palasics that he saw an offender drink something from within the fridge. It is a remarkably specific recollection and one that, in the circumstances, would be unlikely to be a fabrication. However, for the purposes of s 65(2)(c), that is not the issue. Rather, it is whether the circumstances are such as to make it highly probable that the representation is reliable. Although the making of a statement to police by a person who the circumstances indicate had no motive to do other than honestly provide his recollection of events would support the reliability of the representation, that is insufficient to reach the high standard required by s 65(2)(c). The circumstances are not such as to eliminate to a sufficient extent the possibility of honest reconstruction or unreliability arising from the traumatic circumstances in which memory of the offence was laid down. The circumstances include that the representation was made many days after the events in question, and on no previous occasion had Mr Palasics referred to an offender drinking something from the fridge. Although the recollection may well be a reliable one, it is the circumstances that must be examined rather than the ultimate question of reliability, and those circumstances are not so clear as to mean that the threshold of a high probability of reliability is met.

8. In this passage, I made specific note of the remarkably specific recollection and the fact that it was unlikely to be a fabrication. However, in reaching the conclusion that the high standard required by s 65(2)(c) was not met, I also placed reliance on the fact that the representation was made “many days after the events in question, and on no previous occasion had Mr Palasics referred to an offender drinking something from the fridge”.

9. Having regard to the evidence of Ms Cantle which is now before the court, the statement that on no previous occasion had Mr Palasics referred to an offender drinking something from the fridge is proved to be false. Further, the representation made to Ms Cantle was made on 10 November 1999, rather than 16 November 1999 as in the earlier application.

Submissions

10. The circumstances that were relied upon for the purposes of s 65(2)(c) by the prosecution are: (a) Mr Palasics was making an effort to recall what occurred; (b) he had no motive to make a false statement; (c) he was making a statement to a person in authority; (d) he was making a statement to a person who, because she was a victim liaison officer, was likely to be trusted; (e) the statement was made in the early days after the incident; (f) the incident was a significant one, namely the murder of Mr Palasics’ wife; and (g) the statement appeared to have been made spontaneously.

11. The prosecution also placed reliance upon the fact that there would be evidence consistent with Mr Palasics having a direct line of sight to the kitchen at the time he said he made the observation.

12. The prosecution also pointed to the subsequent statement made in a police interview on 16 November 1999 and the statement made in Mr Palasics’ formal police statement dated 12 September 2001.

13. Counsel for Mr Vekony submitted that it was not clear what other conversations were occurring at the hospital when the statement was made and that, unlike the video recorded interviews where representations were made, it was not possible to interrogate how the statement to Ms Cantle was made and the condition and appearance of Mr Palasics when he made the statement. He submitted that it was not possible to assume that people trust the police. He submitted that it was not clear whether what was recorded in Ms Cantle’s notes reflected a verbatim record of what Mr Palasics had said or whether it was a summary.

14. Counsel for Mr Fabriczy pointed to the fact that the statement was made three days and 16 hours after the incident, that there was insufficient evidence about what conversation occurred and that at least John Mikita was shown to have been present during the conversation. She also pointed to the fact that it was not clear what medication Mr Palasics was on at that stage and in his statement given in 2001 he had recorded that he had blood in his eyes when he made the observation reflected in the representation.

Consideration

15. In my view, the statement was made in circumstances which make it highly probable that the representation is reliable. I accept each of the following matters are circumstances which tend in favour of the reliability of the statement: (a) Mr Palasics was making an effort to recall what occurred; (b) he had no motive to make a false statement; (c) he was making a statement to a person in authority; (d) he was making a statement to a person who, because she was a victim liaison officer, was likely to be trusted; (e) the statement was made in the early days after the incident; (f) the incident was a significant one, namely the murder of Mr Palasics’ wife; and (g) the statement appeared to have been made spontaneously.

16. There are some additional points to be made as to some of those matters.

17. The statement was made much earlier than the statement which I ruled inadmissible in DPP v Fabriczy (No 3). The home invasion took place sometime around 9:30pm on 6 November 1999. The statement to Ms Cantle was made at about 3:15pm on 10 November 1999. In contrast, the statement which I ruled inadmissible was made at 4:19pm on 16 November 1999.

18. As I indicated in relation to the representation that was ruled inadmissible, it was a remarkably specific recollection and hence, even when made on 16 November without any previous such statement, I considered it unlikely to be a fabrication and that it “may well be a reliable one”.

19. The representation now being considered was significantly earlier, highly specific and made to a person likely to be trusted. It relates to a discrete feature of the home invasion separate from the chaotic and traumatic physical interactions Mr Palasics described as having occurred earlier. The fact that it was only made three days after the incident in question is consistent with it being what was thought to be a peripheral aspect of the home invasion which was being recounted in case it was useful. It is only now, with the benefit of hindsight, that it can be seen to be a critical observation. But the fact that it is now seen to be a critical observation in light of how the investigation developed should not be treated as something indicating that the representation is likely to be less reliable because it was not made earlier. In other words, the fact that what appeared to be a peripheral detail of the overall incident was only provided three days afterwards should not be judged by reference to the significance it has now for the prosecution case but should instead be judged by the significance it was perceived to have at the time, namely, as a peripheral detail which Mr Palasics, trying to do his best, was recalling.

20. Finally, the prosecution referred to the fact that there would be evidence indicating Mr Palasics would have been in a position to see what he said he saw. I have taken this into account but only to the extent that this weighs against the sort of finding contemplated by Mason P in R v Ambrosoli [2002] NSWCCA 386; 55 NSWLR 603 at [29] (Hulme and Simpson JJ agreeing) that a person may have been incapable of having heard or seen the matter which was the subject of the previous representation. The evidence as to blood in Mr Palasics’ eyes does not go as high as indicating that he was incapable of seeing what he said he saw. The representation is consistent with his own subsequent police statement as to what he saw.

21. I do not accept that the fact that the statement was made whilst Mr Palasics was in hospital or that Mr Mikita was present are circumstances which mean that the threshold is not met. Mr Mikita’s statement as to what occurred during the second burglary occurred after the statement made by Mr Palasics. The possibility that other people were present or that there were other conversations going on that might have resulted in some confusion as to what was said is simply speculation. An officer taking contemporaneous notes is unlikely to have been so readily confused as to inaccurately record what was said and there is no reason why the existence of some other conversation would lead to any unreliability on Mr Palasics part. The representation immediately before that which is relied upon also relates to observations made by Mr Palasics relevant to the incident, being observations of the motion sensor lights going on and off in the hour before the incident.

22. Insofar as counsel for Mr Fabriczy made reference to Mr Palasics being on medication, although there was evidence for the purposes of a previous application as to his medication regime and I accept that he was on medication including pain relief medication at an earlier stage, no evidence was pointed to that would indicate the taking of medication at the time the representation was made of a type or dosage that would render the statement unreliable.

23. Overall, I consider that the statement made to Ms Cantle was made in circumstances where it is highly probable that the representation is reliable. Therefore, I ruled that the representation made by Gregor Palasics that he saw one of the intruders drinking out of the fridge and that he glimpsed it and was too scared to move in case they came back to him is admissible pursuant to s 65(2)(c).

24. Having regard to my ruling, it was not necessary to rule on the alternative application, namely that the evidence be admitted under s 60 for the non-hearsay purpose of explaining why samples were taken from the fridge. Advance ruling on the admissibility of the evidence of the 1997 burglary

25. In my reasons in DPP v Fabriczy (No 3), I ruled that evidence of the 1997 burglary was not admissible for coincidence purposes at the trial of Mr Vekony.

26. The reasoning sought to be adopted by the prosecution was outlined as follows (at [120]): The articulation of the relevance of the evidence of burglary 1 in the prosecution’s written submissions is that Mr Vekony’s knowledge of burglary 1 (whether by reason of participation or not) provides an explanation for why Mr Vekony would return for burglary 3 in circumstances where nothing of value was obtained in burglary 2. That involves circumstantial reasoning but not coincidence reasoning. The success of burglary 1 is a circumstance which would provide, for a person who was aware of it, a reason to commit burglary 2 or burglary 3. In circumstances where the prosecution case includes that Mr Vekony is linked by his DNA to burglary 2, the success of burglary 1 would provide a motivation for both burglary 2 and burglary 3. In circumstances where Mr Vekony was linked to burglary 2, that would suggest that he was motivated enough to engage in that conduct, and hence, in that sense, the success of burglary 1 may add little to involvement in burglary 2. However, it would tend to refine the motivation of burglary 2 to being one of theft, which is consistent with the allegations in relation to burglary 3.

27. I ultimately ruled that the coincidence features pointed to between burglary 1 (being the 1997 burglary) and the other burglaries were that the victims were the Palasics, they occurred at nighttime, and both burglary 1 and burglary 3 involved a search for a compartment: at [123]. Those similarities were not sufficient to have significant probative value for coincidence purposes. My reasons were as follows (at [124]): The threshold required by s 98(1)(b) is that the evidence, either by itself or having regard to other evidence to be adduced, will have significant probative value. I do not consider that the three matters pointed to (the common victims, the occurrence at night and the search for a compartment) are sufficient to give the evidence of burglary 1 significant probative value as coincidence evidence. That evidence does not have sufficient similarities to be significantly probative evidence that the same people were involved in burglary 1 as the other burglaries.

28. However, I did indicate that the success of burglary 1 provided some circumstantial evidence that may support the prosecution case that a person involved in burglary 2 was also involved in burglary 3: at [125].

29. It is the success of burglary 1 which may provide a motivation for somebody who is involved in burglary 2 to persist with burglary 3. Thus, if the prosecution succeeded in establishing that Mr Vekony was involved in burglary 2, then the evidence of burglary 1 might provide some circumstantial support for his participation in burglary 3. Obviously, this depends upon Mr Vekony being aware of burglary 1. As counsel for Mr Vekony pointed out, there is no direct evidence that this was the case. Mr Vekony lived in Melbourne at all relevant times.

30. However, the prosecution theory of admissibility assumes that Mr Vekony was a person involved in burglary 2. That is largely based upon DNA evidence relating to the balaclava taken by Mrs Palasics from one of the burglars.

31. One would not normally expect an unsuccessful burglar who had been interrupted mid-burglary to make another attempt. It would be more likely that such a person would do so if they were aware that the rewards would be significant. The existence of a prior successful burglary and theft of a substantial quantity of money is a circumstance which would support the proposition that an unsuccessful burglar would be motivated to persist and attempt on another occasion to steal the money notwithstanding having been interrupted on an earlier occasion. I consider that the evidence of the earlier occasion is clearly relevant evidence.

32. Counsel for Mr Vekony submitted that it would be necessary to give to the jury an anti-coincidence and anti-tendency direction and that the risks of the jury misusing the evidence were such that it should be excluded under s 137 or even on the basis of the misleading or confusing limb of s 135.

33. As I have indicated, the probative value of the evidence depends upon a chain of circumstantial reasoning. That is one which is open. The probative value of the evidence is limited in circumstances where there is no direct evidence of Mr Vekony’s knowledge of burglary 1. However, there is evidence that the Palasics were well known within the Hungarian community and the relevance of the evidence arises only in circumstances where the jury is satisfied of Mr Vekony’s involvement in burglary 2. While the probative value of the evidence is limited, I do not accept that there is any significant danger of unfair prejudice.

34. I accept that the jury would not be entitled to use the evidence for either coincidence or tendency purposes. However, given the nature of the evidence to be led in relation to burglary 1, there is a minimal prospect of the jury misusing the evidence. They will be directed about the limited purpose for which they can use it. I anticipate that will be by way of a relatively brief direction about the limited use to which it can be put, and the limited chain of reasoning that is available. I think that a longer anti-tendency or anti-coincidence direction is likely to be counterproductive, but I will obviously hear Mr Vekony’s submissions on that issue. In short, with appropriate directions, I do not consider that there is any significant danger of unfair prejudice and I consider that the danger of unfair prejudice does not outweigh the probative value of the evidence.

35. Further, I do not consider that the evidence will be misleading or confusing and, as a result, I do not consider that the probative value of the evidence is substantially outweighed by the danger that the evidence may be misleading or confusing.

36. Therefore, the ruling of the court is that the evidence of the 1997 burglary is admissible in the trial of Mr Vekony.

Orders

37. The rulings that I made on 17 February 2026 were: (1) In relation to the application for an advance ruling on the admissibility of the evidence of Gail Cantle, I rule that the representation made by Gregor Palasics that he saw one of the intruders drinking out of the fridge and that he glimpsed it and was too scared to move in case they came back to him is admissible pursuant to s 65(2)(c) of the Evidence Act 2011 (ACT). (2) In relation to the application for an advance ruling on the admissibility of the evidence of the 1997 burglary, the evidence of the 1997 burglary is admissible at the trial of Mr Vekony.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: