The Offence of Aiding or Abetting the Suicide of Another in NSW

A former New South Wales police officer recently failed in his attempt to appeal his sentence over a conviction of having aided or abetted the suicide of another, as Phillip Baldwin had successfully assisted his wife, Joanne, in taking her own life 4 July 2023, which was part of a suicide pact the pair had meticulously planned for. But Phillip had ultimately failed in terms of taking his own life.

Baldwin, currently 73, was sentenced to a 2 year intensive correction order (ICO) on 7 November 2024, after he’d been arrested due to assisting his wife in having taken her own life but then failing in his attempt to take his own. The pair had decided to call it quits after the relationships with Joanne’s three children from another marriage had broken down over a series of years.

An ex-decadeslong employee of the NSW Police Force, Baldwin called his old employer to report that his wife had hung herself earlier that day on Dharawal land in the inland NSW southeastern town of Bombaderry, and attending officers found the woman in the position that she had taken her own life in with her husband’s assistance, along with evidence that Phillip had also tried to kill himself.

An ICO is considered to be a custodial sentence that is served in the community, under strict conditions. Baldwin appealed the sentence as being manifestly excessive, claiming that NSW District Court Judge Jennifer English had relied too heavily on victim impact statements when deliberating upon the correct sentence for the man who’d assisted his wife in taking her own life.

NSW Chief Judge at Common Law Natalie Adams and NSW Court of Criminal Appeal Justices Peter Hamill and Edward Muston agreed that the 2 year ICO was the right sentence for Baldwin in respect of his crime, and there was no evidence that the sentencing judge had excessively focused on the victim impact statements and nor was there any evidence that Baldwin “was genuinely remorseful”.

Assisting another in taking their own life

Baldwin pleaded guilty to one count of aiding or abetting the suicide of another, contrary to subsection 31C(1) of the Crimes Act 1900 (NSW). This is an offence that carries up to 10 years imprisonment. And it is a crime that can apply when an individual attempted to assist another with the taking of their own life but was unsuccessful in doing so. 

If Baldwin hadn’t pleaded guilty, then the prosecution would have had to prove beyond a reasonable doubt that he intentionally aided, or actively assisted and provided help, or abetted, which means being verbally or psychologically encouraging, his wife in taking her own life.

A second offence contained under subsection 31C(2) of the Crimes Act involves an individual inciting or counselling another person into taking their own life, and it’s found that as a consequence of this, the other person committed or attempted to commit suicide. This lessor offence carries up to 5 years prison time.

In terms of the second offence, the prosecution has to show beyond a reasonable doubt that an offender had intentionally suggested or persuaded another individual to kill themselves and then as a result of this, the other person did take or attempted to take their own life.

Defences against assisting another in suicide

There are a number of defences that can be raised against a charge of aiding or abetting suicide.

This includes the defence of mental impairment or cognitive impairment contained in section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which involves a defendant putting to the court that they were not criminally responsible, as they’d been suffering mental impairment or cognitive impairment or both.

Baldwin pleaded guilty, so he did not enter a defence. But it’s likely he could have raised the mental impairment defence, as after his arrest, he was taken directly to Shoalhaven Hospital, where he was declared mentally ill and detained under the provisions of the Mental Health Act 2007 (NSW). And he spent close to a week in the hospital before being discharged into the care of a general practitioner.

Another defence that can be raised against aiding or abetting suicide is the defence of duress, which relates to circumstances in which an accused claims that they perpetrated their act in order to prevent the threat of a greater harm against themselves or another. For this defence to stick, it must be shown that the threat of harm was serious enough to warrant the breaking of the law.

The other key defence available after being charged with assisting in someone else’s suicide, is the defence of necessity, which involves a defendant claiming that there was a more immediate threat that they were avoiding when having carried out their wrongdoing. For this defence to hold, it must be shown that a much greater peril had made the illegal action necessary to avoid it.

A 1980s overhaul of NSW mental health

In 1983, then NSW Wran Labor government health minister Laurie Brereton passed four mental health bills that were said to revolutionise the mental health system in this state by shifting it away from a sector that placed the mentally ill in secluded asylum settings towards a community-based care system, where human rights were primary.

One of these cognate pieces of legislation was the Crimes (Mental Disorder) Amendment Bill 1983, which served to establish laws relating to persons with a mental illness being unfit to stand trial and a defence of mental illness that could be raised in a court of law, as well as new sections that related to the then common law criminal offence of suicide.

Three new sections relating to suicide were inserted into the Crimes Act by this legislation. This included the offence of aiding or abetting a suicide under section 31C of the Crimes Act, as discussed above.

Another amendment was the insertion of section 31A of the Crimes Act, which stipulates that “the rule of law that it is a crime for a person to commit, or to attempt to commit, suicide is abrogated”. This otherwise meant that the common law offence of suicide had been abolished.

The final section relating to suicide inserted into the Act in 1983 was section 31B of the Crimes Act, which contains provisions relating to people who have survived a suicide pact, like Phillip Baldwin.

Subsection 31B(1) of the Crimes Act provides that “the survivor of a suicide pact shall not be guilty of murder or manslaughter but may be guilty of an offence under section 31C” or found responsible for the crime of aiding or abetting a suicide.

Subsection 31B(2) defines a ‘suicide pact’ as an agreement between two or more persons with its objective being “the death of all of them” and this is “whether or not each is to take his or her own life”, while no acts of a person who has entered into such a pact are to be treated as being done in pursuit of it, unless it’s been done after they’ve “settled intention of dying in pursuance of the pact”.

The third subsection under section 31B of the Crimes Act then specifies that “the onus of proving the existence of a suicide pact shall lie with the accused person on the balance of probabilities”, which means that it is up to the legal team of a person who has survived a suicide pact to prove that this scenario was more than likely what had occurred.

“To the balance of probabilities” is the civil standard of proof, which means that for something to be taken as true, it must have been shown to have been more than likely to have occurred. This is as opposed to the criminal standard, or “beyond reasonable doubt”, which is higher than the civil standard, and it means that there is no other logical explanation for how a particular act occurred.

Image: Shutterstock

Shutterstock ID 2426069023