Classifi cation of Law

CRIMINAL AND CIVIL COURT PROCEDURES

At a glance, court procedures for criminal and civil cases appear similar, however, there are some key

diff erences.

COURT PROCEDURES

Parties involved

Standard of proof

Burden of proof

Sentencing

Criminal Trial Civil Trial

Criminal Trial

Prosecution (represents society) Usually a representative of

the Offi ce of the Director of Public Prosecutions

May be a Police Prosecutor (in Local Court)

Defendant (the accused wrong-doer) Usually represented by a

barrister

Civil Trial

Plaintiff (brings the case to court)

Defendant (the accused wrong-doer)

PARTIES INVOLVED

Criminal Trial

Prosecution must prove to the judge or jury that the Defendant committed the crime

It is not the responsibility of the Defendant to prove their innocence

Civil Trial

Plaintiff must prove to the judge (or very occasionally a jury) that the Defendant committed the wrongful act

It is not the responsibility of the Defendant to prove their innocence

STANDARD OF PROOF

Criminal Trial“Beyond a reasonable

doubt”The judge or jury must be

convinced by the Prosecution that the accused was guilty – and they can have no questions/doubts about this A guilty verdict can only be

made if the Prosecution proves: mens rea actus reus causation

Civil Trial

“On the balance of probabilities”

The judge (or very occasionally a jury) only needs to determine which side is more likely to be telling the truth This makes it easier for a

Plaintiff to “win” a civil case than a Prosecutor criminal case. See: OJ Simpson

BURDEN OF PROOF

Criminal Trial

Judge will hold a sentencing hearing if the Defendant is found guilty

Will consider previous crimes and Victim Impact Statements, as well as mitigating circumstances

Will result in sanctions Jail time Community service A fine

Civil Trial If the judge fi nds in order

of the Plaintiff , s/he will state what relief (compensation) needs to be made by the Defendant

Will usually take the form of damages (payment) or injunctions (orders restricting behaviour)

If the judge fi nds that the Plaintiff ’s claim was vexatious (time-wasting), the Plaintiff may be ordered to pay all court costs.

SENTENCING

Judges and

Magistrates

Barristers

Solicitors

PERSONNEL INVOLVED

Preside over courtsLegally qualified and

experienced professionals (usually worked as barristers)

Judges sit in intermediate and superior courts; adjudicate cases with a jury (decide verdict if no jury)

Magistrates sit in lower courts; decide verdict

Both issue rulings and sentences

JUDGES AND MAGISTRATES

Receive work via a solicitor (cannot be hired directly by an individual)

Specialise in one aspect of the law

Two main roles: Provide legal advice

based on facts presented to them regarding the likely outcome of the case

Present their client’s case in court (if briefed by a solicitor)

BARRISTERS

First port of contact for someone needing legal advice

Majority of their work occurs outside a courtroom Preparing wills Family law matters (divorce) Conveyancing (real estate

purchases) Creating contracts

If involved in a court case, will prepare a “brief” (documents relating to the case) for a barrister

SOLICITORS