How civil and criminal courts differ

How civil and criminal courts differ

We hear about big court cases in the news all the time - but the outcomes of civil and criminal cases in Australia can be very different, even if the underlying facts are similar… One of the key differences between the 2 systems is the standard of proof that has to be met. It’s a factor that’s not always clear, so in this Squiz Shortcut we’ll try to help with that, and also explain:

• Where else civil and criminal courts differ

• And why the system works this way

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Let’s start with the basics… What’s the difference between civil and criminal cases?
At the broadest level, they deal with different types of disputes. Criminal cases deal with people who have been accused of breaking the law, whereas civil cases are about resolving disagreements between people or organisations. 

How many Aussies each year come into contact with our courts?
Not too many of us… Less than 2% of the population are involved in civil matters, and less than 2.4% for criminal matters, according to the Bureau of Stats. So that equates to a lot of people who mightn’t be up on the lingo, or the whys and hows of our legal system. That’s why it can sometimes be confusing when we hear in the news that someone has been found responsible for a crime in a civil court, but not guilty in a criminal court, even when the underlying facts of the case are the same or very similar… 

We tend to hear about criminal cases a lot in the news - why is that?
Experts say that’s because those cases are the most newsworthy in that they tap into fundamental human emotions like curiosity and fear. They say it’s a bit like how people might look at a car crash… It’s not nice, but they want to know what happened. 

Who brings a criminal case to court?
The process begins when an alleged offender is charged by police. After that, if they plead ‘not guilty’, lawyers working for the state (called prosecutors) argue the case in court on behalf of the Crown. And it really is the Crown, if you ever see criminal cases listed, you’ll see R for Rex (Latin for King) versus the defendant. It reflects that they’re acting on behalf of society… 

And what’s the goal there?
In the criminal court system, if the accused is found guilty, they face a punishment for their crime. That might be a prison sentence, or a fine, or community service… 

So, how does that differ to civil court?
Civil cases are usually brought by people or organisations against each other, rather than the state bringing the case. They might be over anything from contracts, to property disagreements, cases of professional negligence, or defamation - that’s when someone claims that their reputation has been damaged by a report or information widely circulated in the community… 

Why do we hear about defamation cases a lot?
They tend to get a lot of attention in the news because they often involve well-known public figures taking on media organisations. 

What’s the end goal for civil cases?
Instead of punishment, civil cases are about resolving disputes and awarding damages (compensation in the form of money, most of the time) if someone has been wronged. So they’re 2 big differences just to start with - who brings the case, and what the outcome is meant to achieve. But there’s another important difference: the standard of proof. 

What’s the difference between the 2 standards of proof?
In civil cases, it’s called the balance of probabilities, meaning that the judge or jury basically weighs up if it’s more likely than not that something happened. Think of it in terms of the classic image of a set of legal scales. If one side tips just over 50%, that’s enough. 

And what about in criminal cases?
The bar is much higher in criminal cases - the prosecution has to prove its case ‘beyond reasonable doubt’. That means that in the minds of the jury or the judge (if it’s a judge-alone trial), there is no reasonable doubt left that the crime was committed. And the wording is important there. It’s not ‘beyond all doubt’ - but it’s still a much higher threshold than in civil cases…

Why is that?
It works that way because the consequences are so serious. A criminal conviction can mean someone loses their freedom, and it’s one of the principles of our legal system that people are innocent until proven guilty. In the civil courts, the stakes are a lot lower - the outcomes involve money, or a decision over who’s at fault, or whether there’s truth to a report. 

Is that why we can see different outcomes in civil and criminal courts for the same/similar case?
Exactly… It’s why someone can be found responsible - on the balance of probabilities - for an act in a civil court, but not guilty in a criminal one, even if the underlying facts are similar.

Got it… What are some recent examples in the news?
There are a couple of Australian defamation cases that we’ve heard a lot about over recent years that we can take a general look at… Let’s start with the lawsuit that former Liberal staffer Bruce Lehrmann brought against Network 10 and presenter Lisa Wilkinson. 

Remind me what that was about…
It was over a TV interview aired on The Project with Brittany Higgins, Lehrmann’s colleague who alleged that he raped her in an office of Parliament House in 2019. Before he took that legal action for defamation, criminal charges against him in relation to the rape allegations were dropped by prosecutors in December 2022 after his trial was aborted due to juror misconduct. Prosecutors didn’t continue with a re-trial because of fears for Higgins’ mental health… 

Hang on, so that case didn’t result in a criminal conviction?
No… Lehrmann has never been convicted of a criminal offence in relation to those allegations. But he sued for defamation after the TV interview (in which he wasn’t named) aired, on the basis that his reputation had been irreparably damaged. 

When did the defamation case go to trial?
It began in the Federal Court of Australia - a civil court - in November 2023, and what the court had to decide was whether or not Lehrmann had been defamed. Lawyers for Network Ten and Wilkinson used the defence of truth - so they needed to prove that, on the balance of probabilities, the claims Higgins made in the interview about Lehrmann were substantially true. 

What was the outcome?
Justice Michael Lee found that Network 10 and Wilkinson had proven their defence of truth and that Lehrmann hadn’t been defamed. He dismissed the case, and one of his findings was that, based on the balance of probabilities, Lehrmann did rape Higgins. You might remember the line in his judgment that “having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat”...

What did he mean by that?
It’s a reference to the fact that the criminal trial was aborted, but Lehrmann pursued the matter in a civil court and was found - according to the civil standard of proof - to have carried out the act he wanted to clear his name of… Lehrmann has since exhausted all legal avenues to appeal Justice Lee’s decision - but even though the finding stands, it’s important to reiterate that it’s not a criminal conviction. 

So the standard of proof is a crucial difference…
It is… and it’s an important one to understand because people often hear the outcome of a civil case and assume it means the same thing as a criminal finding - but it doesn’t… 

Is there another example?
Yep… Another high-profile case we’re set to hear a lot about in the coming months is the criminal trial of former soldier Ben Roberts-Smith. He also brought a defamation case against several newspapers, which was again, a civil proceeding. 

Remind me what happened there…
The Federal Court found that the publishers of those newspapers could prove the truth of their reporting on the balance of probabilities, which claimed that he was involved in the deaths of unarmed Afghan citizens while serving in Afghanistan. That decision was made back in 2023, and again, all legal avenues to appeal it have been exhausted by Roberts-Smith. 

And now he’s facing criminal charges?
He is… If you’ve been reading/listening to Squiz Today, you’ll know that he’s since been charged with 5 counts of the war crime of murder over those allegations. And when he answers those charges in a criminal court, as we’ve outlined, it’s a completely different process and subject to a much higher standard of proof than what was found in the defamation proceedings - even if similar evidence is presented. 

Who decides these cases?
Civil cases are usually decided by a judge, but they can also be decided by a jury made up of members of the public. Criminal trials are usually decided by juries, but again, there can be exceptions.

What sort of exceptions?
Sometimes a defendant might ask for a judge-alone trial if, for example, there’s a concern that a jury might be influenced by pre-existing views about the case. This could happen in the case of Roberts-Smith, where the details are widely known and there’s a chance that some members of the public might have already formed a view about his guilt or innocence. That’s called prejudice and the legal system is designed to protect defendants against it, because it works on the presumption that they’re innocent until proven guilty…

What happens if the details are widely known and a judge decides the case?
Judges have been trained to close their mind to any prior knowledge and concentrate only on the evidence presented. Again though, no matter who sits in judgment, it’s important to keep in mind that the outcome of a civil case doesn’t determine the outcome of a criminal one, even if the allegations and the evidence presented are similar… It’s all part of making sure our legal system is as fair as possible. 

Onto our Recommendations

Reading: This piece from The Guardian about how Ben Roberts-Smith’s criminal trial for alleged war crimes will differ from the defamation case he brought against the Nine newspapers… 

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