Exploring Criminal Law in Australia: What You Need to Know

Ever wondered what exactly falls under “criminal law” down under? It’s a complex area, shaping how society functions, defining right from wrong in the eyes of the state, and outlining the consequences for stepping over the line. Think of it as the rulebook designed to keep things orderly and protect us all. But it’s more than just a list of ‘don’ts’; it’s a dynamic system built on centuries of tradition, constantly evolving legislation, and fundamental principles aimed at ensuring justice (though what ‘justice’ means can be debated!). Let’s unravel the intricacies of criminal law in Australia, from its core purpose to the journey through the justice system. Understanding this area is crucial, not just for legal eagles, but for everyone, as it reflects our society’s values and how we deal with wrongdoing. Research bodies like the Australian Institute of Criminology constantly analyse trends and inform policy, highlighting its ongoing importance.

Table of Contents

What is Criminal Law in Australia? Defining Purpose and Scope

At its heart, criminal law in Australia aims to maintain social order and set out the basic standards for how people should treat one another. Unlike civil law, which usually deals with disputes between individuals (think contract disagreements or property issues), criminal law is considered ‘public’ law. This means the state (representing the community) takes the lead role in investigating and prosecuting offences. Why? Because a crime isn’t just seen as harming an individual victim; it’s viewed as an act against the stability and safety of society itself.

Pinpointing a single philosophy behind Australian criminal law is tricky. Some might say it’s about ensuring individual accountability and focusing on the ‘guilty mind’ or intention behind an action. Others argue it’s less a unified system and more a collection of practices with different justifications, shaped over time by governments, media, and public pressure rather than pure, consistent legal theory.

Despite this complexity, the scope is broad. Its main functions include:

Protecting the Community: Especially vulnerable members, ensuring safety from harm.
Punishing Wrongdoing: Holding individuals accountable for illegal actions, based on ideas of ‘just deserts’ (retribution) or preventing future crime (deterrence).
Rehabilitation & Restoration: Increasingly, the system looks forward, aiming to prevent re-offending through treatment, healing, and restorative justice practices.
Denunciation: Clearly stating, through the courts, that the community condemns certain behaviour.

Essentially, criminal law acts as society’s mechanism for defining unacceptable conduct, investigating breaches, determining guilt, and imposing consequences, all while trying to balance punishment, protection, and prevention.

Where Does Aussie Criminal Law Come From? The Sources

Understanding Australian criminal law means knowing where the rules originate. It’s not just one big book! The laws come from a mix of historical traditions and modern law-making, operating within Australia’s federal structure.

The Two Main Pillars: Common Law and Statute Law

Australia’s legal system has two primary sources of law:

Common Law (Case Law): This is judge-made law, built up over centuries through court decisions. Stemming from our English heritage, judges interpret laws and apply them to specific facts. These decisions, particularly those from higher courts, create precedents that lower courts in the same hierarchy must follow in similar future cases. Think of it like building a legal framework case by case.
Statute Law (Legislation): These are laws created by Parliaments – Acts passed by the Commonwealth, state, and territory legislatures. Statutes are the most significant source of law today and can cover almost any subject within the Parliament’s power. Importantly, if a statute conflicts with common law, the statute prevails. Parliaments can also create new laws, change existing ones, or even completely replace areas previously governed by common law.

A Federal Mix: Commonwealth vs. State/Territory Laws

Australia’s federal system adds another layer of complexity. Responsibility for criminal law is divided:

State and Territory Laws: Each state and territory has its own parliament with broad powers to make criminal laws governing most day-to-day conduct within its borders. This means criminal laws (and procedures) can differ significantly from one state to another. Most criminal offences are prosecuted under state or territory law.
Commonwealth (Federal) Laws: The Australian Constitution gives the Commonwealth Parliament power to make laws only on specific topics (like defence, customs, corporations, external affairs, or matters referred by states). So, Commonwealth criminal law is more limited, often dealing with offences against the Commonwealth itself (e.g., Centrelink fraud, terrorism, drug importation, corporate crime). Key federal laws include the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth).

This division means we effectively have nine criminal law systems (Commonwealth + 6 states + 2 territories). While cooperation exists, this federal structure inherently creates potential for complexity, overlap, and even conflict where state and Commonwealth laws intersect or where the Commonwealth uses its powers (like external affairs or human rights) to override state laws.

Code vs. Common Law Jurisdictions: A Key Distinction

Adding to the mix, Australian states and territories fall into two categories based on how their criminal law is structured:

Common Law Jurisdictions (NSW, VIC, SA): These states largely retain the historical English system where many criminal law principles and definitions of offences still come from judge-made common law, although heavily modified by statutes. For example, the definition of ‘larceny’ (theft) in NSW might be found in case law, not just the Crimes Act.
Code Jurisdictions (QLD, WA, TAS, NT, ACT): These jurisdictions have enacted comprehensive Criminal Codes that aim to replace the common law entirely. The Code itself defines the offences, defences, and principles. The idea is to have the criminal law contained primarily within one legislative document. The Queensland ‘Griffith Code’ was influential for several other code jurisdictions.

This difference impacts how laws are interpreted and applied in each place.

Other Influences

While common law and statute are primary, other factors shape the law:

The Constitution: Explicitly protects a few rights relevant to criminal law (like trial by jury for federal indictable offences, s 80) and implies others (like freedom of political communication).
International Law: Treaties and conventions Australia signs can influence domestic law, particularly for transnational crimes.
Customary Law: Aboriginal and Torres Strait Islander customary laws, governing communities for millennia, exist alongside the Anglo-Australian system but have historically received limited formal recognition within it.

The Bedrock: Fundamental Principles of Australian Criminal Law

Imagine the criminal justice system as a building. Certain fundamental principles form its very foundation, ensuring fairness and protecting individuals against the power of the state. These aren’t just abstract ideas; they have real-world consequences for anyone accused of a crime.

Presumption of Innocence: Innocent Until Proven Guilty

This is perhaps the most crucial principle – the “golden thread” of criminal law. Every person accused of a crime is presumed innocent until the prosecution proves their guilt. It’s not up to the accused to prove they didn’t do it; the responsibility lies entirely with the state to prove they did. This protects individuals from wrongful conviction and ensures the state must justify any punishment.

Burden and Standard of Proof: Who Needs to Prove What, and How Well?

Flowing directly from the presumption of innocence are two related concepts:

Burden of Proof: The prosecution carries the burden of proving every element of the alleged crime. The accused generally doesn’t have to prove anything (though they might raise evidence for a defence).
Standard of Proof: The prosecution must prove guilt beyond a reasonable doubt. This is a very high standard, much higher than the ‘balance of probabilities’ used in civil cases. It means the judge or jury must be virtually certain of the accused’s guilt based on the evidence presented. If there’s any reasonable doubt, the accused must be acquitted (found not guilty).

The Right to Silence & Privilege Against Self-Incrimination: You Don’t Have to Talk

This is another fundamental right, though one that has sparked considerable debate. Essentially, an accused person generally cannot be forced to answer questions from police (pre-trial silence) or give evidence in court that might incriminate them (at-trial silence and the privilege against self-incrimination).

Why does this right exist?

It reinforces the presumption of innocence and the burden of proof – the state must build its case without forcing the accused to help.
It protects individuals from potential coercion or unfair pressure from authorities.
It recognises that people might remain silent for reasons other than guilt (e.g., fear, confusion, protecting someone else).

The Controversy and Modifications:

This right isn’t absolute and has been modified. Critics argue it can hinder investigations or be exploited by guilty individuals. Notably, NSW introduced changes allowing judges/juries to draw “unfavourable inferences” if an accused person fails to mention a fact during police questioning (after receiving a special caution and having access to legal advice) which they later rely on in their defence at trial. This doesn’t mean silence automatically proves guilt, and safeguards exist for minors and those with cognitive impairments. However, these changes reflect an ongoing tension in society and law between protecting individual liberties and ensuring effective law enforcement. Police are required to issue cautions informing suspects of their right to silence before questioning.

The Building Blocks of a Crime: Actus Reus and Mens Rea

For most crimes (excluding ‘strict liability’ offences), the prosecution needs to prove two key components beyond a reasonable doubt to secure a conviction. Think of them as the essential ingredients: the physical act and the mental state.

***Actus Reus*: The Guilty Act**

This Latin term refers to the physical element(s) of the crime. It’s the external manifestation of the offence – what the person actually did (or sometimes, failed to do). The actus reus can involve:

Conduct: The physical action itself (e.g., punching someone in an assault case, taking property in a theft case). It can also include an omission (failure to act) if there’s a legal duty to act (e.g., a parent failing to provide food for a child).
Circumstances: The situation or context in which the conduct occurs (e.g., the property belonged to another person in a theft case, the person assaulted did not consent).
Result/Consequence: The outcome caused by the conduct (e.g., the victim suffering injury in an assault case, property being damaged). Causation must be proven – the conduct must have significantly contributed to the result.

For example, in a murder case, the actus reus would be the act (or omission) that caused the victim’s death.

***Mens Rea*: The Guilty Mind**

This refers to the mental or fault element(s) of the crime. It’s about the accused’s state of mind at the time they committed the actus reus. Did they intend to do it? Did they know what they were doing was wrong or illegal? Different crimes require different levels of mens rea. Common fault elements include:

Intention: The person meant to perform the conduct or bring about the result (e.g., intending to steal the item in a robbery, intending to cause serious injury).
Knowledge: The person was aware of certain circumstances or that a particular result would occur (e.g., knowing the property was stolen, knowing a statement was false).
Recklessness: The person foresaw the probability or likelihood of a particular harm resulting from their actions but went ahead anyway (e.g., punching someone, aware it would probably cause injury).
Negligence: The person failed to exercise the standard of care a reasonable person would have in the circumstances, and this failure caused harm. This is less common in serious crime but applies to offences like negligent manslaughter or negligently causing serious injury.

The Commonwealth Criminal Code uses the terms ‘physical element’ and ‘fault element’ instead of actus reus and mens rea, but the underlying concepts are similar.

Concurrence: Mind and Act Together

Crucially, the actus reus and mens rea must generally occur at the same time – this is the principle of concurrence. You can’t usually be convicted of a crime just for having guilty thoughts if you don’t act on them, nor for accidentally causing harm if you had no guilty state of mind (unless it’s a strict liability offence).

What About Strict Liability?

Some offences, often regulatory or public welfare offences like speeding or drink driving, are ‘strict liability’ offences. For these, the prosecution only needs to prove the actus reus (that the person did the prohibited act). They don’t need to prove any specific mens rea or fault element. The focus is on the act itself, not the intention behind it.

Sorting the Offences: Summary vs. Indictable

Not all crimes are treated the same way by the justice system. In Australia, criminal offences are broadly classified into two main categories based on their seriousness, which dictates how they are dealt with procedurally.

Summary Offences: The Less Serious Category

These are generally less serious offences dealt with relatively quickly in the lower courts.

Examples: Minor assaults, disorderly conduct, trespassing, lower-level drink driving, minor property damage, shoplifting low-value items.
Court: Heard and decided by a Magistrate in the Magistrates’ Court (or Local Court in NSW).
Procedure: Simpler and faster process. No jury involved. The accused doesn’t always have to be present.
Penalties: Lower maximum penalties, typically capped at 2 years imprisonment for a single offence in the Magistrates/Local Court, often less.
Time Limits: Often have statutory time limits (e.g., 6 months or 2 years) within which charges must be laid.

Indictable Offences: The More Serious Category

These are more serious crimes that carry potentially severe penalties.

Examples: Murder, manslaughter, rape, serious assaults (like grievous bodily harm), armed robbery, drug trafficking, major fraud, arson.
Court: Generally dealt with in the higher courts – the District Court or Supreme Court.
Procedure: More complex process, often involving a preliminary ‘committal’ hearing in the Magistrates/Local Court to see if there’s enough evidence to go to trial. The accused has the right to trial by jury for most indictable offences. The accused must generally be present at hearings.
Penalties: Higher maximum penalties, including lengthy terms of imprisonment (potentially life) and significant fines.
Time Limits: Generally, no time limit for laying charges for indictable offences.

The In-Between: Indictable Offences Heard Summarily

Just to keep things interesting, some indictable offences (often mid-range seriousness) can be dealt with ‘summarily’ in the Magistrates/Local Court if certain conditions are met.

Why? It can be more efficient for less serious indictable matters.
Who Decides? Depending on the specific offence and the state/territory, either the prosecution, the defence, or both might have the option to ‘elect’ (choose) whether the case stays in the lower court or goes to a higher court. Sometimes the Magistrate makes the final decision. NSW uses ‘Table 1’ (either party can elect) and ‘Table 2’ (only prosecution can elect) classifications.
Benefit for Accused: If an indictable offence is dealt with summarily, the maximum penalty that can be imposed is limited by the lower court’s jurisdiction (usually 2 years imprisonment), even if the offence itself carries a much higher maximum penalty in a higher court.

Strictly Indictable Offences

The most serious offences (like murder, treason) are ‘strictly indictable’.32 These must be finalised in a higher court (District or Supreme Court) and cannot be dealt with summarily.

Here’s a quick comparison:

Feature	Summary Offence	Indictable Offence
Seriousness	Less Serious	More Serious
Court	Magistrates’/Local Court	District/Supreme Court (can start in lower court)
Decision Maker	Magistrate	Judge & Jury (usually) or Judge alone
Procedure	Simpler, faster	More complex, committal hearing often required
Max Penalty	Lower (often capped at 2 yrs in lower court)	Higher (can include life imprisonment)
Jury Trial?	No	Yes (right for most)
Examples	Minor assault, traffic offences	Murder, rape, serious drug trafficking

Understanding this classification is vital as it affects everything from which court hears the case, the procedures involved, the potential penalties, and even legal rights like trial by jury.

The Journey Through Justice: Key Stages in the Criminal Process

So, what actually happens when someone is accused of a crime in Australia? The criminal justice process involves several key stages, although the exact path can vary depending on the seriousness of the offence (summary vs. indictable) and the jurisdiction. Here’s a general overview:

1. Investigation: It usually starts here. Police gather evidence about a suspected crime. This can involve interviewing witnesses, collecting physical evidence, executing search warrants, and sometimes using surveillance powers. Their goal is to determine if an offence occurred and who might be responsible.

2. Arrest and Charging: If police believe they have sufficient evidence that a person committed an offence, they can arrest that person. Alternatively, for less serious matters, they might issue a Court Attendance Notice (CAN) or summons, requiring the person to appear in court. The person is then formally charged with a specific offence(s).

3. Bail (or Remand): After being charged, a decision is made about whether the accused should be released back into the community until their court case (bail) or held in custody (remand). Bail decisions consider factors like the risk of the accused failing to appear in court, committing further offences, or interfering with witnesses. Conditions can be imposed on bail (e.g., reporting to police, curfew).

4. First Court Appearance (Mention): The accused appears in the Magistrates’ Court (or Local Court) for the first time. Here, they will be formally told the charges and asked how they plead:

Guilty: The case may proceed directly to sentencing, either immediately or at a later date.
Not Guilty: The case will be set down for a hearing (summary offence) or committal proceedings (indictable offence).
Adjournment: The case might be postponed to allow the accused to seek legal advice. Legal Aid may be available for those who cannot afford a lawyer.

5. Committal Hearing (for Indictable Offences): For more serious offences destined for the District or Supreme Court, a committal hearing usually takes place in the Magistrates’ Court. The Magistrate reviews the prosecution’s evidence to decide if there’s enough (‘prima facie’ case) to send the accused to trial in a higher court.

6. Trial: If the accused pleads not guilty (or is committed for trial), a trial takes place.

Summary Trial: Held in the Magistrates’/Local Court before a Magistrate alone.
Indictable Trial: Held in the District or Supreme Court, usually before a judge and jury. The prosecution presents its evidence and witnesses, aiming to prove guilt beyond a reasonable doubt. The defence can challenge the prosecution’s case, cross-examine witnesses, and present its own evidence (though it doesn’t have to). The judge rules on legal matters, and the jury (or judge in judge-alone trials) decides on the facts – guilty or not guilty.

7. Sentencing: If the accused pleads guilty or is found guilty at trial, the case moves to sentencing. The judge or magistrate considers various factors (offence seriousness, offender’s circumstances, impact on victim, sentencing principles) before imposing a penalty. This could range from a fine or good behaviour bond to community service or imprisonment.

8. Appeals: A person convicted of an offence (or sometimes the prosecution) can appeal the decision to a higher court. Appeals can be against the conviction itself (arguing legal errors or an unsafe verdict) or against the severity (or leniency) of the sentence. Strict time limits usually apply for lodging appeals. The appeals process often involves applying for ‘leave’ (permission) to appeal before the full appeal is heard.

This process aims to balance efficiency with fairness, ensuring the accused understands the charges and has the opportunity to respond, while also allowing the state to prosecute alleged wrongdoing.

Getting Out of Trouble: Common Legal Defences

Just because someone is charged with a crime doesn’t automatically mean they’ll be convicted. The prosecution must prove all elements of the offence beyond a reasonable doubt. Furthermore, even if the elements seem to be met, the accused might have a valid legal defence that excuses or justifies their actions, potentially leading to an acquittal.

A defence works by challenging or negating one of the essential elements the prosecution needs to prove (like the mens rea or actus reus) or by providing a legal justification or excuse for the conduct. Here are some common defences recognised in Australian criminal law (though availability and specific requirements can vary between jurisdictions and depend on the specific charge):

Self-Defence

Perhaps the most well-known defence. If you used force against someone, you might argue you did so justifiably to protect yourself, another person, or even property from an unlawful attack. The force used must generally be reasonably necessary and proportionate to the threat faced in the circumstances as the accused perceived them.

Duress

This applies if you committed a crime only because you were threatened with serious harm (death or grievous bodily harm) to yourself or someone else if you didn’t comply, and the threat was immediate and overwhelming, leaving you with no safe avenue of escape. The response must be reasonable and proportionate to the threat.

Necessity

Similar to duress, but the threat comes from a situation rather than a person. This defence might apply if you broke the law to avoid even more serious consequences arising from an urgent and imminent peril (e.g., breaking into a cabin to shelter from a life-threatening blizzard). The act done must be reasonably necessary to avert the danger, and the harm caused must not be disproportionate to the harm avoided.

Mental Impairment (Insanity)

This defence relates to the accused’s state of mind at the time of the offence. If, due to a mental health impairment or cognitive disability, the person either didn’t know the nature and quality of their actions, or didn’t know that what they were doing was wrong, they may be found not guilty by reason of mental impairment. This often results in a special verdict and potential detention in a secure facility for treatment rather than outright release.

Other Defences and Considerations

Automatism: Arguing the act was involuntary, done while not conscious or in control (e.g., during a seizure or sleepwalking).
Intoxication: Generally not a defence in itself, but severe intoxication might sometimes prevent the formation of the specific intent (mens rea) required for certain crimes. However, laws often restrict this, especially for self-induced intoxication.
Honest and Reasonable Mistake of Fact: For some offences (particularly strict liability ones), arguing you genuinely and reasonably believed in a set of facts that, if true, would have made your actions innocent.
Specific Statutory Defences: Some laws create specific defences for particular offences (e.g., the defence of ‘due diligence’ for corporations in some contexts, or specific considerations in family violence situations).
Withdrawal (for Complicity/Conspiracy): If involved in planning a crime with others, making a timely and effective withdrawal before the crime is committed might be a defence to complicity or conspiracy charges.

Raising a defence often involves the accused presenting some evidence to support it, after which the prosecution usually bears the burden of disproving the defence beyond a reasonable doubt. Defences are complex legal arguments, and successfully raising one requires careful analysis of the facts and the specific laws applicable in that jurisdiction.

The Final Reckoning: Sentencing Principles and Options

When an accused person pleads guilty or is found guilty after trial, the final stage in the court process is sentencing. This is where the judge or magistrate determines the appropriate legal consequence or penalty for the offence. Sentencing isn’t arbitrary; it’s guided by a complex web of legislation, case law principles, and specific objectives.

What is Sentencing Trying to Achieve? The Purposes

Legislation across Australia often explicitly lists the purposes of sentencing. These aims can sometimes overlap or even conflict, requiring courts to perform a balancing act. Key purposes include:

Punishment (Retribution): Ensuring the offender is adequately punished for the crime, reflecting the ‘just deserts’ principle – a moral response to wrongdoing.
Deterrence:

Specific Deterrence: Discouraging the individual offender from committing crimes in the future.
General Deterrence: Dissuading other members of the community from committing similar offences by making an example of the offender.

Rehabilitation: Helping the offender address the underlying causes of their behaviour and reintegrate into society as a law-abiding citizen.
Incapacitation: Protecting the community by removing the offender’s capacity to commit further crimes (usually through imprisonment).
Denunciation: Publicly condemning the offender’s conduct and showing societal disapproval.
Restoration: Increasingly recognised, this focuses on repairing the harm caused by the crime, often involving the victim and the community.

What Options Does the Court Have? Types of Sentences

Courts have a range of sentencing options available, depending on the offence’s seriousness, the offender’s circumstances, and the relevant laws. These can include:

Dismissal/Discharge: Releasing the offender without conviction or penalty, perhaps with conditions.
Good Behaviour Bond/Undertaking: Releasing the offender into the community on condition of good behaviour for a set period, possibly with supervision or other requirements.
Fine: Requiring the offender to pay a monetary penalty.
Community Service Order (CSO): Requiring the offender to perform unpaid work in the community.
Intensive Correction Order (ICO) / Community Correction Order (CCO): A sentence served in the community but with strict conditions, supervision, and potentially electronic monitoring or home detention.
Imprisonment: The most severe penalty, involving detention in a correctional facility. Sentences can be:

Full-time: Served continuously in prison.
Suspended: The prison term is only served if the offender breaches conditions within a set period (being phased out or modified in some places).
Parole: Most prison sentences include a non-parole period (the minimum time that must be served) and a parole period (served under supervision in the community).

How Does the Court Decide? Sentencing Factors

Judges and magistrates don’t just pick a sentence out of thin air. They must undertake a complex “instinctive synthesis” considering numerous factors outlined in legislation and common law. These include:

Objective Seriousness of the Offence: The nature of the crime, the harm caused, the offender’s role, and the maximum penalty set by Parliament.
Offender’s Circumstances: Age, background, character, prior criminal history (if any), prospects of rehabilitation, remorse shown.
Aggravating Factors: Circumstances that make the offence more serious (e.g., use of a weapon, breach of trust, offence committed while on bail, presence of children, victim vulnerability).
Mitigating Factors: Circumstances that reduce the offender’s culpability or warrant leniency (e.g., early guilty plea, cooperation with authorities, youth or old age, difficult background, mental health issues contributing to the offence).
Impact on the Victim: Victim Impact Statements can be presented to the court, outlining the physical, emotional, and financial effects of the crime.
Guilty Plea: An early guilty plea usually results in a sentence discount, recognising the utilitarian value (saving court time and resources) and potential remorse.
Sentencing Principles: Including proportionality (sentence should match the crime’s gravity), parity (similar sentences for similar offenders in similar circumstances), totality (overall sentence must be just and appropriate when sentencing for multiple offences).
Standard Non-Parole Periods (SNPPs): For certain serious offences in some jurisdictions (like NSW), Parliament has set a ‘guidepost’ non-parole period for offences falling in the mid-range of seriousness, which judges must consider.

Sentencing is a challenging task, requiring the court to weigh competing factors and purposes to arrive at a just and appropriate outcome in each individual case.

Conclusion: An Evolving Legal Landscape

Australian criminal law is far from simple. It’s a multifaceted system shaped by history, divided by federalism, and constantly interpreted by courts. From the fundamental principles like the presumption of innocence and the right to silence (principles that themselves face ongoing debate and refinement) to the technical requirements of actus reus and mens rea, it sets the boundaries of acceptable conduct.

The journey through the criminal justice system – investigation, court processes, defences, and sentencing – involves numerous stages and legal considerations, differing significantly between less serious summary matters and grave indictable offences. The ultimate goals involve a complex balancing act: punishing offenders, protecting the community, deterring crime, rehabilitating individuals, and upholding the rule of law.

As society changes, so too does the law. Ongoing reviews and reforms, often informed by research from bodies like the Australian Law Reform Commission and the Australian Institute of Criminology, seek to ensure the system remains effective and relevant, addressing issues from corporate crime to family violence and national security. Understanding this intricate legal landscape is vital for navigating our rights and responsibilities within the Australian community.

Disclaimer:

This article provides general information on Australian criminal law and is not legal advice. Criminal law is complex, varies between states and territories, and is subject to change. This information should not replace consultation with a qualified criminal lawyer regarding your specific situation. We accept no liability for any action taken or not taken based on this content.

Frequently Asked Questions (FAQs)

What’s the biggest difference between criminal law and civil law in Australia

Criminal law deals with acts considered harmful to society as a whole and is prosecuted by the state (e.g., theft, assault, murder), potentially resulting in penalties like imprisonment. Civil law deals with private disputes between individuals or organisations (e.g., contract breaches, negligence claims), usually seeking remedies like compensation (money) rather than punishment.

If I’m questioned by police, do I have to answer their questions?

Generally, you have the right to remain silent, both during police questioning and at trial. Police must caution you about this right. However, in some specific circumstances (like providing your name and address) or under specific laws, you may be required to provide certain information. In NSW, for serious indictable offences, remaining silent about something you later rely on in court could potentially harm your defence if you were properly cautioned and had access to a lawyer. It’s always wise to seek legal advice if unsure.

Does ‘innocent until proven guilty’ mean the police can’t arrest me unless they have absolute proof?

No. The presumption of innocence is a legal principle that applies at trial.17 Police can arrest someone if they have reasonable grounds to suspect they have committed an offence or based on evidence establishing a prima facie case.18 The standard for arrest is lower than the ‘beyond reasonable doubt’ standard required for a conviction in court.

What’s the difference between a ‘code’ state (like QLD or WA) and a ‘common law’ state (like NSW or VIC) for criminal law?

In ‘code’ jurisdictions, the criminal law (offences, defences, principles) is primarily contained within comprehensive legislation called a Criminal Code, which largely replaces judge-made law. In ‘common law’ jurisdictions, while statutes are very important, many criminal law principles and definitions still rely heavily on historical judge-made decisions (precedents) alongside legislation.

Can someone be tried twice for the same crime in Australia?

Generally, no. The principle of ‘double jeopardy’ protects individuals from being tried or punished again for an offence for which they have already been finally convicted or acquitted. However, there are some very limited statutory exceptions in certain jurisdictions that may allow for a retrial in specific circumstances, such as if fresh and compelling evidence emerges for a very serious crime, or if the original acquittal was tainted by perjury or interference.