I once had a lecturer in tort law (civil wrongs) who decried signs he saw in rural areas saying: “”Trespassers will be prosecuted”.
“”Trespassers cannot be prosecuted,” he said. “”This is nonsense. Trespass is not a criminal offence. It is a tort. They cannot be prosecuted. They can only be sued.”
The point helps illustrate the seeming inconsistency between the ghastly O. J. Simpson being acquitted of the crime of murder but found liable of the tort of causing death.
A single action, like killing someone or running them over in a car, can be both a tort and a crime. But there are four essential difference between the legal treatment of a tort and crime.
With a crime the state prosecutes (and pays for the prosecution); the penalty is imprisonment or a fine payable to the state; the state has to prove its case beyond a reasonable doubt and there are strict rules about what evidence can be admitted. With a tort a private person sues and pays for it (unless they win and the court awards them costs); the remedy is payment of damages, there can be no imprisonment; the case only has to be shown to be the most likely scenario (not the conclusively proven scenario); a lot of evidence is admissible that would not be admissible in a criminal trial.
In Australia there is a further difference. Criminal trial are heard by a jury; civil cases, with few exceptions, are heard by judge alone.
Overall, it means that a civil trial is much more likely to result in a person being found liable than a criminal trial.
So why aren’t there more civil trials in these days of frustration with the justice system and victims’ rights. The answer is money. Most people charged with crimes are penniless. There is no point in suing someone without any money. Worse, you have to pay your own costs because the state will not underwrite a civil action.
Many people would explain the OJ case in their own mind as a bizarre aberration of the legal system; guilty and not guilty at the same time. Not so. Rather he is criminally not guilty and civilly not liable. Another analogy might explain the legal difference.
(Although there is another practical explanation: in the criminal trial a mostly black jury blinded themselves to the evidence and acquitted on racial grounds.)
The legal difference between civil and criminal cases comes up with insurance. A heavily insured house is burnt to the ground and the owner escapes in his pyjamas with a box a matches in his pocket. Incidentally, his irreplacable wife, two children and photo albums were at his mother-in-law’s place that night.
The owner is charged with arson. There is no evidence of any human interference in the fire and he is acquitted of the crime because it is not proven beyond a reasonably doubt. The insurance company, however, asserts that it is a case of arson and that the circumstantial evidence points to the owner. It refuses to pay up and the owner sues. The judges says it is more likely than not the owner burnt down the house to pick up the insurance and strikes out the claim.
It is in the public interest that the man does not go to jail on such flimsy evidence. But it is also in the public interest that where it is likely, but not proven, people are scam insurance companies they should not get paid.
Therein lies the sense in the perversity of the OJ verdicts.