It was to acknowledge that no formal record of interview could be conducted so long as the applicant was in Pakistan since, as the investigating officials appreciated, any such interview would be unlawful, that is, would be contrary to Australian law." The court also referred to a judgment of Justice McHugh of the High Court, in which he said that although there is some discretion as to whether evidence obtained where an interviewee does not have access to legal advice should be admitted or not, judges are not free to make the decision "by reference to general notions of fairness." The court concluded that the trial judge had erred in not exercising his discretion to bar the evidence from being admitted, although it was not necessary to decide the point. Thomas' original convictions were quashed, however before the final orders were made the Commonwealth Director of Public Prosecutions sought to make a submission as to whether there should be a directed acquittal or whether there should be a retrial. The court heard brief arguments, then set aside the issue for a further hearing, to be held after the parties had made written submissions. The prosecution sought to introduce as evidence statements Thomas made in an interview with the Australian Broadcasting Corporation for the "Four Corners" television program in February 2006. The parties made submissions, and there was an oral hearing on 1 December 2006. All parties accepted that the relevant test to be applied was the test set out in the High Court case of "DPP (Nauru) v Fowler", which sets out two preconditions for a retrial; the first requiring that the admissible evidence presented at trial be "sufficiently cogent" to support a conviction, the second requiring consideration of circumstances that would make it unjust to put the accused through a retrial. However this case had an unusual feature, namely that the evidence that the prosecution would seek to use at a retrial had not been available at the original trial, through no fault of the prosecution, since although the interviews had been taken at that time they had not been published. Ultimately all parties agreed that all evidence, not just evidence submitted in the original trial, should be considered when applying the first part of the Fowler test. The court decided that it would be reasonably possible for a jury to convict Thomas based on the available evidence, so it then considered whether there were factors which would make a retrial unjust. Thomas' lawyer Lex Lasry argued that the delay in Thomas' prosecution (he was not arrested until seventeen months after he returned to Australia) and the extensive media coverage of the case meant it was unlikely Thomas would get a fair trial, and that a retrial would be an undue hardship on Thomas given that he has spent long periods in custody, mostly in solitary confinement, without conviction, which has led to him being diagnosed with depression and post-traumatic stress disorder.