The types of disputes dealt with by courts can be broadly divided into two types: criminal cases and civil cases. These two types are dealt with quite differently and different processes and approaches apply. For example, there is a difference in who ‘prosecutes’ the case, as well as in the standard of proof and in the outcomes if the case is proven.
Criminal cases involve a person being prosecuted by the police or a government prosecuting agency, such as the Director of Public Prosecutions, on behalf of the State for an offence against the law. If the court finds a person guilty of a crime, the court has the power to punish the offender by imposing a sentence (or punishment), such as a fine, a community service order, bond or custodial sentence (imprisonment). The law generally sets a maximum penalty for the offence, and the judge selects a penalty that is within the scope of the maximum penalty and that is appropriate to the criminality involved.
There are two types of criminal offences:
- summary offences – these are generally less serious offences that are usually dealt with by a magistrate of the Local Court and are punishable by a fine or imprisonment for up to two years; and
- indictable offences – are generally more serious offences that are usually dealt with by a judge and jury of the District Court or the Supreme Court and are punishable by imprisonment for more than two years.
In criminal cases, the person charged with the offence is called the ‘defendant’ or the ‘accused’. The prosecution is conducted on behalf of the Queen, and for this reason the prosecutor is usually called ‘the Crown’ and is often written in reports of criminal cases as ‘R’ (short for ‘Regina’, which means ‘Queen’, or ‘Rex’, which means ‘King’). If the defendant appeals against a conviction or sentence, the defendant is called the ‘appellant’.
A civil case involves a dispute between people (or between a person and the government) about the rights or liabilities of the people or organisations involved. A civil case usually involves one person seeking a remedy of some kind from another person to resolve a dispute between them.
Examples of areas of law that are classified as civil law are:
- financial issues - such as bankruptcy or banking disputes
- family law
- employment law.
In civil cases, each person involved in the case (generally, each person whose rights or liabilities are an issue in the case) is called a ‘party’ to the case. The party who makes a claim or commences the case is generally called ‘the plaintiff’, but in some types of cases may be called ‘the claimant’ or ‘the applicant’. The party defending themselves against the claim is generally called the ‘defendant’ or ‘respondent’. If a party appeals against the court’s decision, the party making the appeal is called the ‘appellant’ and the party denying or arguing against the appeal is called the ‘respondent’.
A ‘tort’ is a civil (rather than criminal) wrong. The word is derived from the French word for ‘wrong’. The law of tort compensates people for harmful things done to them as a result of a person breaching a duty imposed by law on that person. Examples of torts are an injury due to negligence, breach of contract, purchase of faulty goods and defamation.
The sum of money awarded by a court in civil cases to compensate a person for loss suffered is known as ‘damages’.
Standard of proof
There are different standards of proof for criminal and civil cases. In criminal cases, the prosecution must prove that the defendant is guilty ‘beyond reasonable doubt’. In civil cases, the plaintiff must prove that the defendant is liable ‘on the balance of probabilities’. Criminal cases have a higher standard of proof because of the severe impact of penalties such as imprisonment on the defendant if found guilty.
The term ‘proceedings’ is used to describe the process of a court dealing with a case that has been brought to the court throughout the various stages of the case. The proceedings before the court in a particular case cease when the court has heard the evidence and arguments and reached its decision.
Summary and indictable offences
Less serious criminal offences that are heard before a magistrate are known as summary offences. More serious (indictable) criminal offences involve a written accusation of the charge (indictment) and are heard before a jury. An indictment includes any process or document that commences criminal proceedings: Criminal Procedure Act 1986 (NSW) section 15.