Being involved in legal proceedings can be daunting and stressful, not to mention confusing to many people.
Those familiar with the legal process, such as lawyers and judges, may use unfamiliar legal terms like call-over, directions, pre-locutory, mention, committal, and even spout out sections of the law with little regard to the fact that many who are less familiar might not fully understand them or how they may impact on their lives.
On a broader level, it is important for court participants to understand that the law is extremely complex and contains many different fields, and that the legal processes, processes, rules of evidence (what can be used to prove or disprove a case) and the onus of proof (which side has to prove the case) as well as degree of proof (for example, whether the case needs to be established more that 50% – known as on the balance of probabilities – or beyond reasonable doubt) that apply to any given case can depend – to an extent – on whether that field falls within civil or criminal law.
So, what’s the difference between civil and criminal law?
In a nutshell, civil law involves disputes between parties whereas criminal law is where prosecutions are brought against individuals or companies by or on behalf of the state.
Here is an outline of the main characteristics of criminal and civil law:
What is civil law?
Civil law concerns the rights, responsibilities, and obligations that individuals, governments, companies, and organisations have to one another.
For example, a breach of a contract, or a personal injury claim, would usually be dealt with by civil proceedings.
Who can start civil proceedings?
Civil proceedings are generally started by persons or companies – not normally by the state or its agencies or departments.
In civil proceedings, the person or organisation who brings the claim is usually called the plaintiff, although there are times where the party will be called the applicant.
The person or organisation who make the claim is usually called the respondent, although there are times the party will be called the defendant (such as in defamation proceedings).
Examples of civil cases include:
- Disputes about contracts such as where it is claimed a person or company has breached a written or verbal agreement against another,
- Tort claims such as where a person asserts that another person or a company has been negligent against them,
- Insurance claims,
- Defamation claims,
- Personal injury claims, and
- Family law disputes.
What are the penalties in civil law?
The typical penalty for being on the losing end of a civil claim is in monetary terms, most commonly compensation or damages.
However, the civil law also contains orders such as injunctions which compel a person or company to do, or not do, something.
Another example is called specific performance, which is where a court can compel a non-compliant party to complete a contract; such as to force a seller who exchanged contracts for a property but no longer wants to sell it (ie to settle the contract) to go through with the sale.
Who bears the onus of proof in civil cases?
The onus of proof is a term used to describe the side – whether plaintiff, respondent, prosecution or defence – that bears the legal obligation to prove its case.
Typically in civil cases, neither party bears an onus of proof.
What is the burden of proof in civil cases?
The burden of proof refers to the degree that a claim or allegation must be established before it is accepted by the court; in other words, for a party to ‘win’ the case.
The typical burden of proof for civil cases is ‘on the balance of probabilities’; in other words, more likely than not, or greater than 50%.
What is criminal law?
Criminal law is concerned with protecting the values, morals and norms of society through the creation by governments and enforcement by its agencies and departments of laws designed to punish those who breach those rules, deter and take rehabilitative measures to ensure offenders do not break the rules again, and deter other members of the community from offending.
In this way, the criminal law is essentially a mechanism of social control ostensibly to protect society against harmful or otherwise undesirable conduct.
Who can start a criminal prosecution?
In theory, anyone can commence a criminal prosecution.
For example, in New South Wales, section 49 of the Criminal Procedure Act 1986 contains a process for a ‘common informer’ to bring a criminal prosecution by way of filing a court attendance notice which is then reviewed by the registrar of the court.
However, this rarely occurs due to time and resources it takes to compile evidence, limitations for ordinary persons in accessing that evidence, the high burden of proof in criminal cases and the fact the person may be liable for the other’s legal costs, as well as potentially be exposed to a civil claim, if he or she is unsuccessful in the prosecution.
In practice, prosecutions are overwhelmingly commenced by an agency or department to whom a government has delegation this power, such as:
- The police, such as a state or territory police force or the Australian Federal Police,
- The Office of the Director of Public Prosecutions,
- The Australian Border Force, and
- The Roads and Maritime Service.
What types of criminal offences are there?
In New South Wales, criminal offences fall broadly into three categories:
- Summary offence
Summary offences are those which are finalised in the Local Court, or the Children’s Court where they involve a minor.
These offences generally carry a maximum prison sentence of two years or less, although there are offences which carry a sentence of two years or less that are capable of being prosecuted ‘on indictment’; in other words, referred to a higher court.
Examples of summary offences include offensive language or conduct, drug possession, possessing a knife in a public place, committing an act of indecency, contravening an apprehended violence order, many stealing offences and most traffic offences including drink driving, negligent driving and driving whilst suspended or disqualified.
- Indictable offences
Indictable offences are those capable of being referred to a higher court, such as the District or Supreme Court.
These generally carry maximum prison sentences of more than two years.
Indictable offences are further categorised into ‘Table 2 offences’ which are those where the prosecution can ‘elect’ (choose) to refer the case to a higher court. The case will remain in the lower court if the prosecution does not elect.
These are generally considered to be more serious than summary offences, and include common assault, assault occasioning actual bodily harm, sexual act (general offence), sexual touching, (general offence), assaulting a police officer (general offence), stalking or intimidation, and possessing or using a prohibited weapon,
‘Table 1 offences’ are those where either the prosecution or defence can elect to refer the case to a higher court. These are generally considered to be more serious than Table 1 offences, and include larceny exceeding $5000, robbery, affray, recklessly wounding or causing grievous bodily harm, dangerous driving occasioning grievous bodily harm, sexual act or sexual touching of a person 10 to 16 years of age and supplying a prohibited drug of more than an indictable quantity but less than a commercial quantity.
- Strict indictable offences
Strictly indictable offences are the most serious and must be referred to a higher court such as the District or Supreme Court.
These include discharging a firearm with intent, commercial drug supply, intentional wounding or causing grievous bodily harm with intent, supplying drugs causing death, assault causing death, intent to murder, manslaughter and murder.
The regime for Commonwealth offences, such as those contained in the Criminal Code Act, Customs Act and Taxation Act, is a little different.
Summary offences in Commonwealth law are offences which carry a maximum penalty of 12 months or less in prison.
Indictable offences are those which carry a maximum penalty of more than 12 months.
Indictable offences which carry a maximum penalty of more than 10 years in prison must be referred to a higher court.
Who bears the onus of proof in a criminal case?
As stated, the onus of proof describes the party who has the legal obligation to establish its case.
In criminal cases, the prosecution generally bears the onus of proving its case.
However, there are now many offences where – if the prosecution is able to prove certain elements (or ingredients) of the offence – the onus then, for all intents and purposes, shifts to the defence to establish certain factors.
An example of this is the offence of goods in custody reasonably suspected of being stolen or otherwise unlawfully obtained. To prove that offence, the prosecution need only establish a reasonable suspicion that goods in a person’s possession were illegally derived, not that they were actually illegally derived.
The onus then shifts to the defence to disprove – on the balance of probabilities – that the goods were so stolen or unlawfully obtained.
What is the standard of proof in a criminal case?
The standard of proof describes the degree to which an assertion must be proved before it is established in law.
In criminal law, the standard of proof is generally beyond a reasonable doubt although, as described above, there are times when the lower standard of on the balance of probabilities comes into play.
But what does ‘beyond a reasonable doubt’ mean?
Across Australia, the case law has made clear that the standard is to be given its ordinary meaning; in other words, there is no formula or criteria for determining when the standard is be considered as being met.
How do I determine whether my case is civil or criminal?
Generally speaking, your case will be civil in nature if you complete or receive:
- A statement of claim, such as a claim in contract, negligence, insurance or tort law,
- An application, such as for family law proceedings, or
- A summons which contains matters of a civil nature.
Your case will generally be criminal in nature if:
- You have been arrested,
- You attend a police station and are given ‘charge sheets’ and/or a ‘court attendance notice’, or
- You receive a court attendance notice in the mail (known as a future court attendance notice.
In some Australian jurisdictions, criminal charges also brought by a summons which will outline the criminal charge/s and the date on which you are required to attend court.
Involved in a criminal case?
If your case is criminal in nature, it is important to contact a specialist criminal law firm for case-specific legal advice, including advice about the nature of the allegations, the laws that apply and the best way forward.