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When most people think about the legal system, the first thing that comes to mind is probably a criminal law scenario. Criminal law punishes people for acts such as homicide; non-fatal offences against the person, such as assault; sexual offences, property offences and so on. Criminal law is the basic set of laws which allows people in society to live in a safe and secure environment, free from physical harm, theft or harassment.

Perhaps the most important division to remember about the legal system is the distinction between criminal and civil law. In 'common law' systems like the Australian system, the area of law involving relations between private individuals in society is known as civil law. In essence, this area covers all types of law and legal situations outside the category of criminal law.

Criminal law

Criminal law exists to impose sanctions (penalties such as fines or imprisonment), on citizens whose conduct is considered unacceptable enough to deserve punishment by the state. Criminal law has developed out of both common law (that is, cases) and out of statutes enacted by the government, such as the Crimes Act 1900 (NSW). In Australia, it is mostly an area of law controlled by the states, although there is an increasing amount of criminal law being made by the Commonwealth government, such as the Anti-Terrorism Act (No. 2) 2005 (Cth). The federal system also has its own enforcement agency, the Australian Federal Police.

The majority of the criminal statutes in Australia are derived from English criminal law, although Queensland originally based its system on the nineteenth-century Criminal Code of India. Criminal statutes not only define what constitutes a crime and cover the appropriate penalties and sentences for different crimes, but also cover matters of court procedure such as evidence. Although the general crimes acts tend to cover the majority of crimes, other statutes can impose criminal penalties. These might include the Corporations Act 2001 (Cth); laws relating to roads and transport; or environmental protection legislation.

The main division in criminal law is between 'indictable offences' (previously called felonies) and 'summary offences' (previously called misdemeanours). Previously, a felony was punishable by death and a misdemeanour was not punishable by death, so this division developed as a very important distinction for defendants.

Summary offences are those that require trial before a magistrate, and the large majority of criminal matters are dealt with as summary offences by way of summons. This is due both to the late introduction of civilian jury trials in Australia (1833 in NSW) and the cost of a jury trial. An example of a crime under the Summary Offences Act 1988 (NSW) can be found in Section 4 'Offensive Conduct': '(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school. Maximum penalty: $660 or imprisonment for three months.'

Indictable offences are named after the written document called the 'indictment', which is prepared on behalf of the 'Crown' as prosecutor. In theory this is the Queen, but in practical terms it is usually the Director of Public Prosecutor (DPP). Cases are listed as Regina (Latin for 'Queen') versus Jones, usually written as 'R v Jones' or The Queen v Jones in States that find Latin words too challenging.

Originally, in England, an indictable offence was heard before a 'grand jury' of up to 23 men. Its job (by a minimum of 12 votes) was to decide whether the accused had a case to answer. If this was decided, the case would then proceed to a trial in front of a 'petty' jury, made up of 12 men. The grand jury stopped being used in England in 1933 but is still used in many States of the United States. The grand jury system has never been used in NSW. Instead, the first step in a criminal case for an indictable offence is a 'committal hearing', where a magistrate determines whether the defendant should proceed (be 'committed') to a jury trial.

Once the court has proceeded with the trial and, if a 'guilty' verdict has been reached, the judge must decree a punishment for the guilty party. The ranges of prison sentences and fines appropriate for each crime are set out in the statutes as a guide for the judge to follow. A variety of prison sentences, suspended sentences or good behaviour bonds may be handed down. Time may be deducted from a sentence of imprisonment for time already served, as often an accused person has spent some length of time in 'remand' before reaching trial.

It is quite difficult to appeal verdicts in criminal law jury trials, as the assumption is that once a jury of 12 peers of the accused has decided a verdict, it should not be easy for the accused to disagree with that verdict. Appeals are more likely when a question of evidence or other procedure in the trial is at stake. The rule of thumb is that an appeal lies by right against any question of law. Appealing against a question of fact, as found by a jury, is virtually impossible (and requires special permission from the appellate court).

Civil law

Criminal law involves a relationship between the Crown (State) and an individual. Civil law, on the other hand, involves resolving all other disputes. Civil law, for example, covers accidents, contract disputes, or the dividing up of a will. In general, civil law deals with private disputes between private people or organisations.

A large number of civil law cases involve what are called 'torts', which are legal wrongdoings. The term 'tort 'is derived from the Latin word 'tortus', meaning 'a wrong'. Tort law exists to protect an individual's bodily safety and security, to protect tangible property and intellectual property, and to protect an individual's reputation. If any of these things are compromised or damaged by another person or organisation, a remedy can be sought by an action for compensation, which usually takes the form of monetary damages. An amount of money is intended to make up for the loss or damage suffered by the victim of the wrongdoing, and to restore the injured person to the position he or she was in before the tort was committed.

Civil courts may impose other conditions, such as forbidding someone to do something - called an 'injunction' - or changing someone's legal status in terms of a divorce or a change of name. Civil actions sometimes flow on as a result of criminal action, and a civil lawsuit can be successful even when the defendant was found not guilty under criminal law. A well-known example of this was the O.J. Simpson trial in the United States, where Simpson was found not guilty of the murder of his ex-wife and another man in a criminal trial, but found liable for the tort of wrongful death in the civil trial that followed. He was ordered to pay US$33 million in damages to the victims' families.

There is some overlap between criminal law and tort law. For example, an assault on someone is both a crime in the eyes of the state, as well as being a tort in the sense of a form of 'trespass to the person'. The main difference between criminal and tort law is that tort law allows a 'plaintiff' or 'claimant' (the victim) to seek a remedy that suits him/her, such as money to make up for lost income or disability, or an injunction to stop someone interfering in his/her affairs or business. In criminal cases, the aim of the case is not to seek remedies to assist a person (although Criminal courts can grant such remedies), but for the state to punish a person for his/her actions. This is why someone can be sent to prison for committing a crime. Custodial sentences are almost never an available course of action against those accused of breaking civil laws, unless someone has disobeyed an order of a judge (such as ignoring an injunction against continuing work on a construction site).

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Question 1/5

1. Which of these statements is true?

Civil law involves disputes and relationships between private people and organisations.

Civil law only covers matters relating to marriage and divorce.

Civil law only applies in New South Wales.

Civil law is derived from the American system.

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