Book your consultation

Book Now Mobile

Table of Contents

Common law and criminal law are not the same however they may overlap in certain situations. Criminal law is a body of law which aims to provide criminal justice in response to criminal activity. It is a punishment system for criminal behavior.

Common law comparatively refers to decisions made based on previous court rulings. You may have heard thus be referred to as case law or precedent. Common law influences criminal law in this aspect but it is not a body of law which sets out the rules and principles by which behavior is determined. We will also consider the manner in which civil and criminal law intersect.

If you have been accused of any criminal law offence then you should seek legal advice immediately. Jameson Law have a team of specialist lawyers ready and willing to assist you with anything you need. Whether you require civil law, criminal law, torts and negligence law assistance then they have the right lawyer for you.

Criminal Law Principles

Criminal law is a punishment system and its sole aim is criminal justice. How this is achieved however is dependent on the situation at hand. The criminal justice system is punitive however it can also be rehabilitative depending on the circumstances. Courts have begun to move further away from punitive measures and more towards rehabilitative measures as a means of trying to deter the behavior in the long term.

Criminal law deals with behavior which is alleged to have breached the criminal legislation specific to the state and territory it occurred in. Usually, this will be a version of the Criminal Code Act. Criminal laws are enshrined in legislation so there is a clear way for people to interpret behavior in accordance with criminal law principles.

Criminal laws are ultimately interpreted by applying the test of “reasonable doubt” to determine guilt. Reasonable doubt considers whether an individuals behavior can be determined “beyond reasonable doubt” to have occurred based on the evidence. It is measured against the idea that a “reasonable person” would not have made the same decision or acted in the same manner in the same situation.

Criminal law principles should never be interpreted without expert advice so if you have committed or been accused of committing any criminal offences you should contact a criminal defence lawyer immediately. Whilst the burden of proof relies on the prosecution proving guilt, it is important to have your defence ready to disprove the evidence they bring.

There are instances of criminal offences subject to commonwealth federal laws which may result in criminal charges. Federal law is above state criminal law and charges are not subject to the criminal code act. Commonwealth criminal offences are the most serious offences within the Australian jurisdiction.

Are There Different Criminal Courts

Yes, criminal law matters can be heard across varying different courts however primarily, they are heard in either the Magistrate’s court or the supreme courts. In limited and exceptional circumstances the matters may be heard in the Federal court or the High Court.

The Magistrate’s court hears matters which are classed as summary offences whereas the Supreme court hears matters which are classed as indictable offences. The Federal court deals with matters that occur at a federal level which are classed as commonwealth offences. The key difference between the courts is that the severity of offending increases with the type of court.

In the event that you are unhappy with the resolution you receive from the court you can file an appeal with the same or higher courts to have the decision reviewed.This is not an easy process and it can take some time for the appeal process to play out.

How Are Court Costs Paid?

Initially, each party bears their own legal costs in criminal cases until such time as a determination is made. If a defendant is found guilty of the charge then as the losing party they can be ordered to pay court costs and victims of crime levies.

In other courts however, this may not be the case. The court has discretionary power to require parties to bear their own legal costs or you can make an application for the court to order costs. This application will then either be granted or denied.

In civil disputes, it is standard practice for parties’ to bear their own legal fees. You will not usually find a court ordering costs in these types of disputes as each party has a right to have their side of the story heard. It is also easier to represent yourself in civil disputes meaning that the legal costs associated are minimal at best.

Common Law Principles

Common law focuses on the use of case law to interpret the likely outcome of a legal matter. There is heavy analysis and assessment involved. Common law principles heavily influence most areas of law as there is always a precedent by which the court must consider before making a determination.

In the event that there is not, then the case at hand will set a new precedent and form part of common law or statute law. Criminal law cases for example, become common law when the determination made determines a fact of law. That case is then used not as not only persuasive authority for the court’s decision but also as either defence or prosecution’s evidence.

For example, domestic violence has risen significantly over the years and precedents have been set regarding different behavior. It is now understood that financial abuse can be a stand alone aspect of family violence and there is criminal procedure in place to determine these matters. Sexual assault is another example as there are tough precedents regarding sexual assault due to the difficulty in prosecuting offenders through the legal system. This is due to the lack of evidence usually available as well as a lack of witnesses given the intimate nature of the act.

Civil Claim Disputes

Civil law disputes are not a breach of the criminal code act but rather are a breach of civil codes. Civil law cases are usually disputes between individuals and a civil case is not as adversarial as a criminal case. Civil laws (private law) are designed to quickly and efficiently resolve individual disputes by applying fact and law and determining an outcome.

Civil law deals with two categories, minor civil claim and civil claim. Minor civil claims are claims which amount to less than $5,000 and civil claims are for claims which exceed $5,000 up to $50,000. Claims higher than this amount can be heard by the court in certain circumstances with the agreement of all parties.

Criminal and civil law intersect in the fact that damages can arise from criminal actions which may prompt a claim being made in the civil court. A claim for damages will be heard in a civil court room whereas a criminal offence will be had in either the Supreme or the Magistrate’s court. If property damage, for instance, has occurred during the course of criminal offences their may be no recourse under criminal law, the criminal code or the crimes act for those damages. Each different charge will be considered by an independent judicial officer.

Civil law works under the system of each individual bearing their own legal costs unlike other jurisdictions where is can be possible for the losing party to pay the winning party’s legal costs.


02 8806 0866

Book Online


Explore More Legal Resources and Articles

Criminal Record Expungement

Laws that regulate criminal record expungement Spent convictions legislation can be challenging to understand. In New South Wales (NSW), criminal record expungement is governed by

Homicide Defence Tactics

In a nutshell… Homicide is a serious offence and will require the assistance of an experienced criminal defense attorney. Murder charges fall into the most


Book your consultation

Scroll to Top