Broadly speaking, there are two types of law in Australia with various differences, being criminal law and civil law.
There are also similarities between the two types of law.
When choosing a lawyer to represent you, it is crucial to determine whether they specialise in a particular area.
Civil Law vs Criminal Law
The main difference between civil law and criminal law in Australia is that criminal law has a higher onus of proof (ie. beyond reasonable doubt) than civil law (ie. balance of probabilities).
Standard of Proof
The party who brings the proceedings has the onus of proof. This means that they must present evidence to prove their case.
However, the standard of proof differs between the types of law.
In civil proceedings, the plaintiff must prove their case on the balance of probabilities. This means that their case is more probable than not.
By contrast, the standard of proof in a criminal case is beyond reasonable doubt.
Parties to Proceedings
Further, generally a prosecutor on behalf of NSW Police or the DPP will charge an accused person with an offence in criminal law, while civil law involves people or corporations resolving disputes involving money.
Right to Silence
There are different legal rights a person is entitled to under civil and criminal law. An accused in a criminal case has the right to silence. They generally do not have to speak to police and they have a right to not give evidence in court.
By contrast, civil law does not provide a right to silence. If a person does not give evidence in their case, this can be used against them.
Commencing Proceedings
To commence a criminal prosecution, police must file a 'Court Attendance Notice' at the Local Court registry. This must then be served on the accused person.
To commence a civil claim against a person or corporation, an initiating application such as a statement of claim is filed. The person making the civil claims must then serve a copy to the other party.
Costs
There are differences between costs in criminal and civil law. Usually, the losing party in civil law will have to pay the other side's legal costs. By contrast, in criminal law, the losing party usually does not pay the legal costs of the winning party.
Types of Cases
Criminal law cases include murder, assaults, fraud, white-collar crime, corporate crime, sexual assault, larceny, drink driving, negligent and dangerous driving, drug supply and importation, firearms, domestic violence, break and enter.
Civil law cases include claims of negligence and torts, breaches of contract, breaches of civil rights, family court proceedings such as disputes about property, divorce and child custody.
Purposes of Civil & Criminal Law
The purpose of criminal justice is to punish, deter and reform offenders. This is done by the imposition of appropriate penalties. These can include imprisonment, a fine, or a non-conviction sentence. A person can also be found not guilty, in which case the charges will be dismissed.
By contrast, the purpose of civil law is to remedy disputes between private persons or corporations. There is no jail time associated with these matters.
Jury
A jury is used for most indictable criminal offences. This is because an accused is entitled to be judged by his or her peers.
In civil cases, juries are optional. Many cases will be heard by a judge-alone.
That is why it is important that a criminal defence lawyer knows how to present their case in front of a jury. In front of a jury, legal arguments and technicalities can carry less weight than before a judge.
Remedies and Penalties
The purpose of civil penalties is to restore the affected party and undo the harm caused.
Monetary compensation is the most common remedy ordered by civil courts. However, it can also involve orders to start or stop behaving in a certain way.
By contrast, the purposes of legal remedies in criminal cases are to:
- Punish the offender
- Deter other offenders
- Protect the community
- Attempt to rehabilitate the offender
Because of this, the penalties in criminal law are different from the ones in civil law.
Different Legislation
Since criminal law deals with crime, it's crucial that your
criminal lawyer understands Victoria's criminal code.
Specifically, you'll need to choose a criminal solicitor who
understands the laws surrounding the crimes you've been charged
with.
In order to make an argument about what constitutes a certain crime under Victorian law, it's important that your lawyer understands the law they're talking about, as well as its nuances.
After all, without an in-depth understanding of Victoria's criminal code, how are they supposed to argue your case and defend you?
What Are the Similarities Between Civil & Criminal Law?
The similarities between civil and criminal law are:
- the party that brings the proceedings bears the burden of proof;
- each party is entitled to be legally represented. A criminal lawyer in Sydney will be able to represent an accused person;
- the parties are entitled to negotiate to resolve the case. Most civil cases are resolved before reaching trial, as this saves time and expense;
- common law is used in both areas;
- an independent judicial officer such as a Magistrate, Judge or Registrar will determine the outcome in a court or tribunal;
- non-compliance with certain court orders may result in the court ordering costs and dismissing the case in favour of the complying party;
- generally, the Evidence Act will apply to both types of proceedings;
- parliament makes and changes legislation, while courts make and change the common law;
- unless a non-publication order is imposed, the public are allowed to view both criminal and civil law proceedings;
- the rules of etiquette in court are the same. For example, when entering a criminal or civil court room, you must bow towards the Judge or Magistrate. You must stand up when the Judge or Magistrate stands to leave the court room. In addition, when addressing the Magistrate or Judge in court, you must always address him/her as 'your honour'.
What is Criminal Law?
Criminal law is concerned with whether an accused person is guilty of an offence and the appropriate punishment for offenders.
The government acts as a representative of the community and prosecutes a person or corporation. The penalties for criminal offences are based on the seriousness of the offence. For example, murder and sexual assault charges are seen as more serious than traffic offences.
What is Criminal Law in Australia?
Criminal law in Australia is concerned with criminal justice and the punishment of offenders.
A significant part of it deals with human and civil rights. Some examples of this include the right to silence, the right to privacy, the right to be able to peacefully and freely walk in public without unlawful interference and the right to liberty.
Commonwealth criminal offences and criminal law are mainly set out in the Crimes NSW state criminal laws are mainly found in the Crimes Act 1900 (NSW), Drug Misuse and Trafficking Act 1985, Bail Act 2013, Uniform Evidence Act 1995 and Law Enforcement (Powers and Responsibilities) Act 2002.
Act 1914 (Cth) and the Criminal Code Act 1995 (Cth).
Importantly, if there is a conflict between state law and federal law, the federal law overrides state law. This is based on section of the Constitution.
The role of a criminal lawyer is to advise, guide and legally represent clients in court who're facing state or federal criminal charges.
A good criminal lawyer with experience will carefully analyse and assess the prosecution's evidence to determine its credibility while also determining if the evidence has been illegally or improperly obtained by police, and whether it's enough to prove the prosecution's case beyond reasonable doubt.
What is Civil Law?
Civil law is the resolution of disputes between people and/or corporations. It usually involves some form of a monetary compensation from one party to another.
The procedure for civil law is different to that of the criminal law. In civil law, each party must set out their claims and then file and serve evidence they rely on. Subject to evidentiary arguments, that evidence will then be presented to a Magistrate or Judge in court.
Once a decision has been made, the presiding judicial officer will make orders in favour or against a party. Legal costs usually then follow for one party to bear the other parties. Often, legal costs will be significant for the losing party, as they will generally be ordered to pay the winning party's legal costs.
If a party is unhappy with the court's decision, they can file an appeal to a higher court.
What is Civil Law in Australia?
Civil law in Australia deals with legal issues between people and/or organisations that affect people in everyday life.
Some examples of civil law include unpaid debts, fines, discrimination, damages, negligence, divorce, property and child custody disputes between parents.
Civil claim disputes are heard either in tribunals or courts, where an independent judicial officer will preside to hear evidence from both sides before making a determination.
What are the Types of Civil Law?
The types of civil law in Australia are:
- Torts and Negligence law (civil rights)
- Contract law
- Property law
- Family law
- Tax law
- Bankruptcy law
- Wills and Probate Law
Civil Law vs Common Law
Common law is created over time through precedent cases (also known as case law) while civil law is created by legislation. Civil law is based on Roman law while common law originated from England in the eleventh century.
Civil law is usually contained civil codes. It is structured, classified and has a number of rules and principles. The court still must interpret civil law and apply it to the facts of each case.
The civil law is meant to generally apply across all cases, but when some cases aren't regulated by the civil law, the courts are required to apply general principles of the civil law to cater to those cases.
Common law is based on the principle that earlier decisions in cases by higher courts should be followed in subsequent similar cases. This is known as following precedents. Higher courts are able to change established precedents through new cases if appropriate.
Civil law is based on the separation of powers whereby the legislator (Parliament) create legislation which courts are required to follow in each case. The legislator/Parliament can also change these laws.
According to common law, the courts create the fundamental principles of law through case law (precedent) that lower courts are required to follow. Higher courts can also change these laws.
Civil law legislation is binding across all courts, whether it is a local, district, supreme or high court in Australia. This means all courts must apply this law in cases.
Laws created by common law cases are required to be followed by lower courts, not higher courts. Case law has only persuasive authority in the same or higher courts to court in which the case law was created in
