What is the Difference between Civil and Criminal Law
The difference between civil and criminal law can be subtle to those not well-versed in such matters, so this article should provide a basic understanding of both areas of law in Queensland specifically but also across all of Australia. It will also touch upon tort law.
At common law the distinction between civil and criminal cases was fairly simple – if you brought your claim to court it was considered civil; if the state brought its claim to court, it was considered criminal – although there are exceptions.
Nowadays things are more complicated as there is overlap between what was once criminal and now civil. For example, false imprisonment at common law was a criminal matter; now it is usually considered a tort. On the other hand, there is now a criminal offence of deprivation of liberty. So there is considerable overlap.
What is Civil Law?
Civil law deals with wrongs done to individual people or bodies of people, such as companies or corporations. An example might be when someone breaches an agreement by refusing to pay you for goods supplied or services carried out. In this situation, you would sue the person civilly in the Magistrates’ Court.
Another example might be if you slipped and fell in a supermarket. You might be able to bring an action in personal injuries law against the owner of the supermarket for damages. If you win the case the supermarket would be required to pay you a sum of money by way of compensation for your injuries.
What is Criminal Law?
Criminal law involves breaches of laws created by parliaments. The main criminal offences in Queensland are contained in acts such as the Criminal Code (Qld) or Drugs Misuse Act which have been written specifically to deal with crimes like possession of illegal drugs or theft. A less serious example might be if you were caught driving without a licence along Oxley Road in Brisbane, then it would be dealt with as an offence under the Transport Operations (Road Use Management) Act.
Criminal cases are generally initiated by the police, although there are other circumstances in which criminal charges can be laid such as by the Crime and Corruption Commission or ASIC.
What is Tort Law?
Tort law deals with civil matters that involve harm done to people or their property. The main tortious causes of action used in Queensland include trespass, nuisance, negligence and occupiers’ liability.
An example might be if someone was injured in your home because you knew there was a risk of them being injured but didn’t take the proper precautions to remedy it e.g., a child drowning in an unfenced pool.
In this situation, one might be sued by the child’s parents for negligently failing to do something about the pool, or sued by everyone who has been injured on your property after that time for nuisance, or even sued by visitors for trespass if they were visiting when they fell into the pool and were injured. It would depend upon whether their injuries were foreseeable and how long they had been aware of the risk. However, as soon as the accused knew someone had been injured on the property due to a lack of precautions (e.g., they saw them crawling out of the pool with a broken arm and bleeding profusely) you would be expected to have fixed the problem or at least warned people using your property.
Criminal Law vs Civil Law
In many cases, you may have a remedy under both criminal law and civil law.
For example, let’s you made a complaint about your neighbour running a meth lab. He was charged by police with the criminal offence of producing a dangerous drug but the charges didn’t go far enough for him to be jailed – he may only have been convicted of possessing the glassware and have received a fine, which he couldn’t afford to pay having already run into debt from buying his ingredients. The neighbour is still causing problems with you and making living next to him uncomfortable, and he has threatened you.
You could take him to court again civilly and apply for an order that he keep the peace and be of good behaviour towards you. You could seek conditions that he does not contact you. If the meth lab is causing damage to your fruit trees because of the noxious chemicals you could sue him for damages.
The purposes of Criminal and Civil Law are completely different. One is to punish the offender, while the other provides remedies or compensations to victims.
The main differences between criminal law and civil law are as follows:
- Criminal Law is created by government (Parliament), allowing people to make complaints against offenders who violate laws (criminal codes). These offenders are then prosecuted by the police or another government body.
- Civil Law involves rights and responsibilities between citizens. These laws allow people to make claims for some personal remedy or damages against those who have violated their rights or caused damage to them or their property.
- A criminal case is not primarily concerned with compensating the victim, but rather punishing the wrongdoer. The court will impose a penalty, whether that be imprisonment, a fine, community service or some other penalty. A civil case is not usually about punishing the wrongdoer, but rather compensating the victim or by imposing some order to protect or restore their rights.
- A criminal case starts when the accused has been arrested and charged. A civil case starts when the defendant has been served with a notice of claim (formerly called a writ).
- Criminal cases are heard in criminal courts, which have judges or magistrates (a type of judge), who focus on whether a specific law has been broken. Civil cases are heard in civil courts, usually by judges who focus more generally on the issues raised by both sides.
- In criminal cases, there is usually a jury for more serious charges such as murder or manslaughter. It is the jury who make decisions about guilt or innocence. A judge then imposes a sentence. Civil law is usually heard by a judge alone however in limited situations these cases can be heard before a jury if either party requests it beforehand and if they supply the necessary funds to pay for it.
- Criminal cases are prosecuted by the government who are represented in court by police prosecutors or lawyers from the office of the Director of Public Prosecutions. The defendant must employ his or her own lawyer to defend the case. If the defendant has no money their lawyer can be appointed by Legal Aid. In a civil case both the plaintiff and the defendant have to pay for their own lawyers to file and run their case.
- In criminal case the rules of evidence are strictly applied. Witnesses must come to court and give evidence on oath in the witness box whereas in civil cases a lot of the evidence can be put before the court in sworn written documents called affidavits.
- Finally, in criminal case the prosecutor must prove its case Beyond Reasonable Doubt. In civil case the standard of proof is at the lower level of On the Balance of Probabilities. That is in the civil case you only need to prove that it is more probably than not that your case is correct. In a criminal case the accused must be found not guilty unless the jury are satisfied beyond reasonable doubt that they committed the crime. This reflects society’s judgement that people are innocent until proven guilty and should not be punished, which can include imprisonment, unless the crime is proven beyond reasonable doubt.
Contact our team at Bouchier Khan Lawyers if you require legal advice or professional help.