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The difference between a civil and criminal case in Australian law

Mental, physical and sexual abuse
Survivors of abuse

In the Australian criminal legal system, a person is considered innocent unless proven guilty. This means that it is up to the Prosecution to provide evidence to support the Crown’s case. Whilst the law is in place to protect innocent people from going to jail, it places a heavy burden of proof on the accuser.

Sadly, for sexual abuse cases, where it is often one person’s word against the other, this can sometimes be hard to prove. 

Understandably it also takes most survivors a long time to be able to come forward and talk about the abuse they suffered, in fact, the majority of the time these acts are never reported to anyone including the police. 

What causes survivors of sexual abuse to delay coming forward? 

  1. In cases of sexual abuse, the survivor may not be aware of the legal avenues available to them to pursue justice until many years later. 

  2. The abuse can have a significant psychological impact on the survivor, it can take time to come to terms with what happened and then to find the courage to come forward. 

  3. There is a common misconception that survivors will not be believed if they do speak up about their abuse. 

What is the legal process for survivors of abuse? 

There are two types of legal avenues for survivors of abuse.  

The first is a criminal case, where the survivor would go through the relevant police force to report the crime and pursue a criminal prosecution. 

The other avenue is a common law claim, where the survivor would sue a responsible or negligent party for the damage they have suffered as a result of the abuse. This considers the impact that the survivor has suffered due to the crime. 

What is the difference between a civil and criminal case? 

Criminal law deals with crimes such as violence against another person, theft or damage to someone’s property and white-collar crime. Offences are divided into categories of how serious they are and as such are dealt with in different courts. More serious crimes are overseen by a judge and a jury. They decide whether a crime was committed and if the person who committed the crime knew that it was wrong. 

At the end of a criminal case, the court will find the accused guilty or not guilty and will then convict them of the offence and prescribe a punishment. This can mean going to jail, paying a fine or doing community service. 

At the end of a criminal trial in Australia, if the jury has any reasonable doubt, then the accused will not be convicted. This is not to say that the survivor is not able to access compensation, as they will still have the option to pursue a civil claim.



Must be beyond reasonable doubt

Standard of proof is in the balance of probabilities

Standard of proof (level of proof) is higher and rests on the accuser 

Can access compensation for injuries including emotional damages 

Even if a prosecution does not run or a person is not found guilty, there is still the opportunity to make a civil claim on behalf of the survivor as there are different standards of proof between criminal and civil courts. For example, if a person who is accused of sexual abuse is not fit to stand trial, then the criminal case will likely not proceed. The outcome in one court does not rely on the outcome in another. This means that a survivor of abuse still has the opportunity to fight for justice. 

In a civil case, a decision will be made based on whether it has been proven on the balance of probabilities (it was more probable than not) that the other party failed their duties towards the accuser. The Court can then award damages based on the loss suffered by the survivor.

What does 'quashed' mean in court? 

A motion to quash means that the court has been requested to declare a previous decision of a court invalid. It can be for a number of reasons for example if the jurors were incorrectly selected. 

What does acquitted mean? 

This means that the accused is free from charges of an offence. This does not mean that the court found the accused not guilty, it means that the prosecutor failed to prove their case beyond reasonable doubt. 

Why should survivors of child sexual abuse come forward? 

The Royal Commission into Institutional Child Sexual Abuse found that survivors who chose to come forward wanted to stop the abuse from happening or prevent it from happening to someone else. Other survivors chose to come forward because they wanted to be released from the burden of carrying the secret of the abuse. 

Whilst it can be tempting to try to forget the abuse, which is perfectly valid, we encourage survivors to come forward and identify their perpetrator in hopes that we can end the cycle of abuse and protect others from being harmed by the same person. Coming forward can not only help survivors access compensation for the damage they have suffered, but it can also help them turn the page and start to reshape their lives. 

You may be entitled to claim compensation. Start the process with our simple and free online tool.

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What we will ask: 

  • Questions to help us understand your experience and how your life has been impacted. Your responses will help us define the best course of action for your claim. 

What happens next:

  • Either book a no-obligation appointment with an abuse law expert right away or,    

  • Speak with our team about your options

How Shine can help

We have helped thousands of Australians right wrong and access more than $1 billion per year in entitlements and compensation through our expert services.  

95% of the cases we represent are settled without the stress of going to court.

We offer access to affordable legal advice including on a No Win, No Fee* basis and an obligation-free initial consultation so you can understand your rights and know where you stand. 

We are ready to take action, supporting your choice not to be silenced and right wrong.

*Conditions apply

Do you have a claim?  

We’re here to make the claims process as simple and stress-free as possible.

Survivors of abuse FAQs

Is there an abuse lawyer near me?

With more than 40 branches across Australia and 1000+ team members, location is no barrier when it comes to accessing Shine Lawyers' legal advice and support.

If you’d like to speak to our abuse law team in person, you can see our full list of locations here.

If you aren‘t able to find a location near you, we can easily arrange an obligation-free virtual appointment or discuss the option to meet at a location that’s comfortable and convenient for you. No matter where you are located, we will always provide the same, expert advice and manage your claim with the same level of quality and commitment.

Can I represent myself, or do I need an abuse lawyer?

It is possible to legally represent yourself when making a claim however, doing so successfully will likely require a thorough understanding of the law, your legal rights and entitlements, and a commitment to actively pursue the case to move it forward. Without an experienced abuse lawyer in your corner, it can be difficult to identify and highlight the strengths of your case. Without the right legal advice and support, you then may not receive the compensation you're entitled to. A lawyer can help you maximise your lump sum entitlements.

Why trust Shine to be my abuse lawyers?

At Shine Lawyers, we put your first. We’ve been standing up for the rights of everyday Australians for over 45 years. As one of Australia’s largest litigation law firms, we are here to help you get the justice you deserve.

Our empathy, understanding and expertise is why we’re ahead of the pack. We’ll stand with you and guide you through every step of the way.

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