How do criminal and civil law differ?
Distinguish between criminal law and civil law, including the parties, purpose, burden and standard of proof, and outcomes.
The distinction between criminal and civil law - parties, purpose, who carries the burden of proof, the standard of proof, and the different outcomes such as punishment versus remedies.
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What this dot point is asking
You must be able to clearly distinguish criminal from civil law across several features: who the parties are, the purpose, the burden and standard of proof, and the outcomes.
Criminal law
Criminal law defines conduct that is harmful to society and prohibited by the state, such as assault, theft and murder. Because crimes are treated as offences against the whole community, the state prosecutes the alleged offender.
- Parties. The prosecution (the Crown or the Director of Public Prosecutions, acting for the state) versus the accused (defendant).
- Purpose. To maintain public order, protect the community and punish wrongdoing.
- Burden of proof. On the prosecution.
- Standard of proof. Beyond reasonable doubt - a high standard reflecting the serious consequences.
- Outcome. If found guilty, the accused is convicted and sentenced (for example, imprisonment, a fine, a community-based order). If not, they are acquitted.
Civil law
Civil law governs disputes between individuals, organisations or businesses, such as negligence, breach of contract, defamation and family disputes. The wronged party brings the action themselves.
- Parties. The plaintiff (who brings the claim) versus the defendant.
- Purpose. To resolve disputes and compensate or restore the wronged party, not to punish.
- Burden of proof. On the plaintiff.
- Standard of proof. On the balance of probabilities - it is more likely than not.
- Outcome. If the plaintiff succeeds, the defendant is found liable and a remedy is ordered, such as damages (money) or an injunction (an order to do or stop doing something).
Comparing the two
| Feature | Criminal law | Civil law |
|---|---|---|
| Who brings the action | The state (prosecution) | The wronged party (plaintiff) |
| Purpose | Punish and protect society | Compensate and resolve disputes |
| Standard of proof | Beyond reasonable doubt | Balance of probabilities |
| Outcome | Conviction and sentence | Liability and a remedy |
Overlap between criminal and civil law
The same incident can give rise to both criminal and civil actions. For example, a dangerous driver who injures someone might face a criminal prosecution by the state and a separate civil negligence claim brought by the injured person seeking damages. Because the standards of proof differ, a person can be acquitted in a criminal trial but still be found liable in a related civil case, since the civil standard is lower.
This distinction underpins much of the course: the adversarial system, the courts that hear different matters, and later topics on sentencing (criminal) and access to justice (both) all depend on understanding which type of law is in play.
Exam-style practice questions
Practice questions written in the style of SACE Board exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2019 SACE Stage 22 marksOutline two differences between the process of resolving a criminal dispute and the process of resolving a civil dispute.Show worked answer →
Award one mark for each clear, correct difference (two needed).
Parties and who brings the action. A criminal dispute is brought by the state (the prosecution, e.g. the DPP) against an accused person, because a crime is treated as a wrong against the whole community. A civil dispute is brought by a private plaintiff against a defendant to resolve a wrong between individuals.
Standard and burden of proof. In a criminal matter the prosecution must prove guilt "beyond reasonable doubt", a high standard reflecting the serious consequences. In a civil matter the plaintiff need only prove the case "on the balance of probabilities", a lower standard.
Other acceptable differences: the outcome (punishment or sanction versus a remedy such as damages) or the consequences of losing (a criminal record versus liability to compensate).
2018 SACE Stage 21 marksIdentify the standard of proof in a civil trial.Show worked answer →
The standard of proof in a civil trial is "on the balance of probabilities".
This means the plaintiff must show that their version of events is more likely than not to be true (more than a 50 per cent likelihood). It is a lower standard than the criminal standard of "beyond reasonable doubt", because a civil matter is a dispute between private parties rather than a prosecution by the state, and the consequences are a remedy rather than punishment.
2018 SACE Stage 22 marksExplain how the purpose of a civil remedy differs from the purpose of a criminal sanction.Show worked answer →
For two marks, contrast the two purposes clearly.
A civil remedy aims to restore the wronged party, so far as money or a court order can, to the position they would have been in had the wrong not occurred. The most common remedy is damages (compensation), but a court may also grant an injunction. The focus is on the plaintiff and putting things right between the parties.
A criminal sanction aims to respond to a wrong against the whole community. Its purposes include punishment, deterrence, protection of the public and rehabilitation of the offender. The focus is on the offender and society, not on compensating a victim.
The key distinction: a remedy compensates, a sanction punishes and protects.