17 evidence would violate the overall fairness of the trial. The absolute nature of the rule on the inadmissibility of ‘torture evidence’ has been recognised internationally.57 However, as will be described, not all domestic legal regimes have adequately implemented the prohibition. II.2.2 National implementation The balancing act? Although there are clear express or implied legal prohibitions on evidence obtained by torture in 16 of the countries we examined, these prohibitions are not always absolute in nature despite the clear requirement for this as a matter of international law. Both Commonwealth and Western Australia are clear examples of jurisdictions which apply a balancing act. The underlying approach in these jurisdictions to the determination of whether evidence is admissible is to accord the greatest possible discretion to the trial court. Although the courts may exclude evidence obtained by improper means where it is in the public interest to do so. However, when making this decision, they must balance the need to convict offenders against the undesirability of the court approving or encouraging the unlawful conduct of law enforcement officers.58 This position, initially established through the common law, is now codified in legislation in Commonwealth Australia. Section 138 of the Evidence Act 1995 (1) Evidence that was obtained: a) improperly or in contravention of an Australian law; or b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. […] (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: a) the probative value of the evidence; and b) the importance of the evidence in the proceeding; and c) the nature of the relevant offence, cause of action or defence and the nature of the subjectmatter of the proceeding; and d) the gravity of the impropriety or contravention… In Western Australia, the legislation is less specific. It refers to ‘the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused’.59 This is applied in accordance with the discretionary rule discussed above. The one exception to this in Commonwealth Australia is confessions or ‘admissions’ to which the balancing act does not apply.60 No equivalent to this provision applies in Western Australia; the exclusion of even a defendant’s confession that has been obtained by torture would appear to require a balancing act to be carried out. Thailand’s Criminal Procedure Code provides: ‘[a]ny material, documentary or oral evidence likely to prove the guilt or the innocence of the accused is admissible, provided it was not obtained through any inducement, promise, threat, deception or other unlawful means’.61 Torture is not explicitly listed but ‘unlawful means’ includes torture as it is prohibited under the Constitution.62 As in Australia, this is not an absolute prohibition. The Thai Criminal Procedure Code continues: ‘[U]nless the admission of such evidence will provide benefits for the facilitation of justice that would outweigh any negative consequences on the criminal justice standard or due process’.63 The Code requires the court to consider the following factors in deciding whether to admit evidence: (a) the evidential value, importance and credibility of the evidence; (b) the circumstances and gravity of the offence in the case; (c) the nature and damages resulting from the unlawful means; and (d) whether and to what extent the person, who committed the unlawful act from which the evidence derives, has been punished.64 The Thai Supreme Court has never exercised its discretion to allow evidence obtained by torture, and it is unclear whether lower courts exercise this discretion due to the lack of published judgments. This balancing act, which Australian and Thai courts are required to perform, is clearly incompatible with international law. Given that the rule on the inadmissibility of ‘torture evidence’ stems from the absolute prohibition on torture, the rule allows for no balancing: ‘Even in countries whose court procedures are based on a free evaluation of all evidence, it is hardly acceptable that a statement made under torture should be allowed to play any part in court proceedings’.65