You might not know it, but there are two distinct “types” of law in Australia:
- Criminal law
- Civil law
There are many things to consider when choosing a lawyer to represent you in court – one of the first things you should look at is what area of law they specialise in: criminal or civil?
If you’re here visiting our website, we’re going to assume that means that you’re more interested in the first one.
So, what is criminal law?
If a law has been broken, then it’s a criminal law case. And if you plan on defending yourself, you’re going to need the right type of lawyer for the job.
The differences between civil law and criminal law
Juries are mandatory for certain crimes
Juries are a staple of legal dramas – what you might not know is that they’re only mandatory in criminal cases.
The reasoning being that since crime affects the community as a whole, the public should be the ones to decide the final verdict. By contrast, civil cases are about resolving disputes – even for the biggest multibillion dollar civil suits, juries are strictly optional.
And even then only for more severe indictable crimes. The vast majority of crimes are summary offences – that’s to say, minor crimes like failure to pay parking fines – and don’t require a jury.
In some criminal trials in Victoria, the prosecution can even apply for a judge-only trial if the accused agrees with it (serious crimes like murder are excluded).
Civil law is about resolving disputes, while criminal law deals with crime
Civil law deals with relationships, agreements and obligations between two or more parties, covering a wide range of formal and informal duties, obligations and rights:
- Formal – terms, conditions and requirements explicitly set out by contract or other agreements
- Informal – obligations that aren’t written down, but which are expected nonetheless
By contrast, the purpose of criminal law is to protect the community and punish the perpetrators of crime.
While civil cases are between individual parties, criminal cases pit someone accused of a crime against the community as a whole.
While there are direct victims of crime, when you think about it, criminal behaviour affects the entire community. As a result, it’s society as a whole (represented in Victoria by the Office of Public Prosecutions) that brings criminal cases to court.
And since the state represents the prosecution in each criminal case, the vast majority of lawyers who specialise in criminal law are criminal defence lawyers.
Remedies and penalties
The purpose of civil penalties is to restore the affected party and to as best as possible undo the harm caused by the issue that triggered the civil case.
While monetary compensation is the most common remedy ordered by civil courts, it can take all sorts of different shapes, including transfer of assets and property, as well as orders to stop or commence work (all of which are delivered directly to the plaintiff).
By contrast, the purpose of legal remedies in criminal cases are to:
- Punish the offender
- Remove the offender from the community
- Deter other offenders
- Protect the community
- Attempt to rehabilitate the offender
Because of these different goals, the penalties used in criminal law are different from the ones in civil law.
Each crime comes with a range of prescribed penalties as laid out under Victorian law, including:
- Prison time and suspended sentences
- Community service
- Mandated therapy
- Suspension of drivers licenses
Criminal penalties protect the community – but what about your rights?
That’s where a criminal defence lawyer comes into the picture. We fight for you, protecting your rights and ensuring that due process is upheld.
The standard of proof is different
Under both types of law, it’s the responsibility of the accusing party to present evidence to prove their case while the defendant defends themselves – that’s what we mean when we say “innocent until proven guilty”.
The difference between the two types of law is the standard of proof.
To win a civil case, the plaintiff needs to prove that on the balance of probabilities, their case is more probable than not.
The standard of proof in a criminal case however is much higher.
In criminal cases, the prosecution needs to prove beyond a reasonable doubt that the crime in question happened, and that the defendant perpetrated it.
In short, they have to leave no room for doubt and completely eliminate other possibilities in order to secure a conviction – this makes it much harder for a criminal solicitor to prove their case compared to a civil lawyer.
Civil and criminal solicitors need different skill sets
Just as there are two “types” of law, there are also two “types” of lawyer, focusing on either civil or criminal law.
It’s thanks to the differences listed above (as well as others we didn’t get to talk about) that you need to talk to the right type of lawyer for the job. Specifically, you need a criminal lawyer in Melbourne.
And by that we meant one who specialises in criminal law, and who can:
- Defend you from any charges you may be facing
- Determine whether or not the charges apply to you
- Point out errors and inconsistencies in the prosecution’s case
- Get the best possible outcome for your circumstances
All of that requires…
An understanding of Victoria’s criminal code
Since criminal law deals with crime, it’s crucial that your criminal lawyer understands Victoria’s criminal code.
Specifically, you’ll need to choose a criminal solicitor who understands the laws surrounding the crimes you’ve been charged with.
In order to make an argument about what constitutes a certain crime under Victorian law, it’s important that your lawyer understands the law they’re talking about, as well as its nuances.
After all, without an in-depth understanding of Victoria’s criminal code, how are they supposed to argue your case and defend you?
Familiarity with criminal proceedings
Criminal cases aren’t just about presenting to the jury and dramatic objections – there’s a lot of paperwork, research and planning that goes on behind-the-scenes before and between the exciting moments in the courtroom.
A good criminal solicitor is thorough, and just as good at the behind-the-scenes stuff as they are presenting a case before the court.
Specifically, they’re familiar with the unique procedures that come with bringing a criminal case to court. While many of these procedures are shared between criminal and civil systems, the devil’s in the details!
The ability to persuade a jury
In addition to understanding the nuances of the law itself, it’s crucial that a criminal defence lawyer also knows how to present their case in front of a jury.
While a judge may be persuaded by legal arguments and likely appreciates a “straight to business” approach that focuses solely on the facts, juries are a different matter.
After all, most jurors are lay people – legal points and technicalities might not connect with them the same way they might click with a judge.
While this is something that all lawyers should possess, it’s especially important for criminal lawyers, who often need to deal with juries more regularly than their civil law counterparts.
Justice Demands Attention from a experienced and committed team of criminal solicitors
What are the types of criminal law cases we can help you with?
At James Dowsley & Associates, we believe that everyone deserves to be heard, whether it’s for a minor offence or a serious charge levelled against you.
Our team defends you from a range of different criminal charges:
- Bail applications
- Driving & traffic offences
- Sexual offences
- Assault charges
- Family violence cases
- Burglary, robbery & theft
- Drug offences
- Murder and manslaughter
- Fraud & identity theft
- Criminal appeals
Since 2007, our criminal defence lawyers in Melbourne have represented people who are under investigation, under arrest or simply asking for advice from a legal professional.
Our in-depth understanding of Victoria’s criminal code and our experience are just two of the things that set us apart from other lawyers – the thing that really makes us stand out is our drive to see that justice is done.
We fight for fair, working hard to ensure that you have your day in court.
As proud members of Victoria’s Legal Aid program, providing partially or fully-subsidised criminal defence services to those in need.
Justice can’t wait – we’re ready to take your call 24 hours a day.