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. The court was of the opinion that a fair trial was not impossible in these circumstances, and although the other factors were considered, the court ultimately decided that the circumstances did not preclude a retrial.