Common law and criminal law are not the same, although they can overlap in some situations. Criminal law is a body of law that provides criminal justice in response to criminal activity. It is a punishment system for criminal behaviour.
Common law refers to decisions based on previous court rulings, also called case law or precedent. Common law influences criminal law through interpretation, but it is not the statute book that sets out offences and penalties. We also consider where civil and criminal law intersect.
If you have been accused of a criminal offence, seek legal advice immediately. Jameson Law has a team of specialist lawyers who can assist across civil, criminal and negligence matters.
Criminal Law Principles
Criminal law is primarily aimed at achieving justice. Outcomes can be punitive or rehabilitative depending on the case. Courts increasingly consider rehabilitation where it promotes long term deterrence and community safety.
Criminal conduct is defined by legislation in each state and territory. In NSW, offences are found in Acts such as the Crimes Act 1900 (NSW) and related statutes. Statutory rules give a clearer framework for assessing conduct.
Guilt is determined using the criminal standard of proof. The prosecution must prove the elements of the offence beyond reasonable doubt. The tribunal of fact assesses the evidence against what a reasonable person could conclude on the material before the court.
Do not interpret criminal law principles without advice. While the burden rests on the prosecution, your defence should be prepared to test the evidence and raise doubt. Learn more about criminal defences in NSW.
Commonwealth offences can also arise under federal law and are prosecuted by the Commonwealth Director of Public Prosecutions, usually in NSW courts exercising federal jurisdiction.
Are There Different Criminal Courts
Yes. In NSW, most matters start in the Local Court (summary and some indictable matters). More serious indictable offences are heard in the District Court or the Supreme Court, depending on seriousness. Limited matters can reach the Federal Court or High Court, mainly on appeals or specific federal questions.
If you are unhappy with an outcome, you may appeal to a higher court within time limits. Appeals can be complex and take time. See our pages on criminal appeals and sentencing advocacy.
How Are Court Costs Paid?
In criminal cases, each party usually meets their own legal costs as a matter proceeds. Costs orders can be made by the court in limited circumstances under statute and are discretionary. Additional statutory levies may apply on conviction. For guidance, see LawAccess NSW or speak with us.
In civil matters, costs are also discretionary, and often follow the event. There are different approaches in small claims and other lists. Get advice before starting or defending civil proceedings.
Common Law Principles
Common law uses case law to interpret legislation and develop legal principles. Courts consider precedent. If no clear precedent exists, a new decision may set one that later courts will follow.
Criminal cases can generate precedent on points of law that then guide future prosecutions and defences. For example, evolving understandings in family violence and sexual offences have led to significant case law and procedural reform. See our overview of NSW criminal court procedures.
Civil Claim Disputes
Civil disputes are not breaches of the criminal code. They concern private rights and obligations and are generally less adversarial. NSW civil claims can be filed in the Local Court’s Small Claims or General Division, or in higher courts depending on value and complexity. Thresholds and procedures are set by law and court rules. See Local Court civil claims.
Criminal and civil law intersect when loss arises from a crime. A civil claim for damages might be brought separately from a prosecution. The criminal case is heard in the criminal courts. The damages claim is heard in the civil jurisdiction. Independent judicial officers determine each matter on the relevant standard of proof. For help assessing your options, contact Jameson Law – Civil Law or our contact page.
