Do I Need a Civil Lawyer Or a Criminal Lawyer?
There is a difference between civil and criminal law, and many lawyers specialise in a particular area of law. To help you decide whether you require a civil or criminal lawyer, we have answered frequently asked questions on this issue below.
Difference Between Civil and Criminal Law
The primary difference between criminal law and civil law is that criminal law has a higher onus of proof than civil law. The onus of proof in criminal law is known as beyond reasonable doubt; that is, the trier of fact must be satisfied beyond a reasonable doubt. Civil law standard of proof is known as the balance of probabilities. There are various other differences between civil and criminal law.
Criminal Law vs Civil Law
For example, a person deliberately killing someone is a criminal offence. A civil offence is, for example, failing to comply with your legal obligation as a company director.
In addition, the legislation that covers these two areas of law is different. For example, criminal offences are covered by Crimes Act 1900 (NSW) and the drug misuse and trafficking act. Civil law in NSW is covered by the Uniform Civil Procedure Act.
Onus of Proof Criminal Law
The onus of proof in criminal law is beyond reasonable doubt. This is a high standard of proof and requires the police to prove the accused’s guilt beyond a reasonable doubt. The police must achieve this before someone can be found guilty of an offence, and the words mean exactly what they say — proof beyond a reasonable doubt. So in a criminal trial, there is only one major issue that a jury has to decide. Has the Crown proved the guilt of the accused beyond a reasonable doubt? If the answer is “yes”, the appropriate verdict is “guilty” and “no”, the verdict must be “not guilty”.
In Green v The Queen, it was held that the question of whether there is reasonable doubt is a subjective one to be determined by each individual juror. Moreover, in Moore v R, the Court stated proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the Crown case.
Onus of Proof Civil Law
In a civil claim, the balance of probabilities is the requisite standard of proof by which a trier of fact (usually a magistrate or judge in civil proceedings) must determine the existence of contested facts. The balance of probabilities when a matter is judged as a whole is a reference to the likelihood of one party’s version of events being more probable to have occurred than not (TNT Management Pty Ltd v Brooks (1979) 23 ALR 345).
Legal Costs
There are differences between costs in criminal and civil law. In most civil cases, the unsuccessful party will have to pay the other side’s legal costs. However, in criminal law, the losing party usually does not pay the winning party’s legal costs. Costs may be awarded to successful parties in criminal proceedings in the Local Court pursuant to four statutes: Criminal Procedure Act 1986, Costs in Criminal Cases Act 1967, Crimes Act 1900 and the Suitors’ Fund Act 1951.
The exception to this is s 213 Criminal Procedure Act, s 116 Criminal Procedure Act and s 215 Criminal Procedure Act. In Dong v Hughes [2005], it was held that the onus is on the applicant on the balance of probabilities.
Trial by Jury
The District Court in NSW and the Supreme Court of NSW hold trials by jury. In a criminal law matter, a jury is used for indictable or strictly indictable criminal charges. This is because an accused is entitled to be judged by his or her peers. However, in civil law, juries are optional, and almost all cases will be heard by a judge alone.
If you have been charged with a criminal offence, you should speak to a criminal defence lawyer. However, if you have been sued for a civil dispute, you should obtain advice from a civil lawyer.
