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.