As stated in ‘Forms of bail’, above, The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking. conditions may include a person being released upon entering into an undertaking with a In criminal law, a person who promises a court that an accused person released on bail will attend court on a hearing date. If the accused person does not attend court, the surety must pay the court the amount of money stated in the bail documents. Also referred to as the guarantor. The sum of money payable if there is a breach is also referred to as the surety. or sureties or making a deposit (s 5(2)(c) Bail A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.).
The role of a surety
A surety is another person who is bound to ensure that an A person who has been charged with a crime. Also known as a defendant. surrenders themselves into Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. in accordance with the conditions of bail. A surety may also have to put down a deposit of money or other Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. (e.g. property) to enable an accused to be released on bail. A surety may have to appear at An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. or give information and undertakings via an audiovisual link (s 9(3A) Bail Act).
If an accused fails to appear at court in accordance with the bail conditions, the surety is liable to forfeit their deposit or they become indebted to the (1) A common term for the legal power and authority of the Commonwealth, state and territory governments. (2) Another name for the prosecution in a criminal trial. for the deposit amount.
However, in certain cases a deposit may be recovered by the person bailed, or by their surety (s 32 Bail Act; s 6 Crown Proceedings Act 1958 (Vic)).
Who can be a surety?
Any person over the age of 18 years – who is not under any legal disability (e.g. not a person of unsound mind), and who has money or assets not less than the value of the bail – may be a surety. This does not include a corporation or other association.
The bail decision-maker has a Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. as to whether to accept a person as a surety (s 9 Bail Act).
Matters taken into account to determine whether a person is a suitable surety include:
- the financial resources of the proposed surety;
- the character and prior convictions of the proposed surety;
- the proximity (by reason of kinship, residence or other relationship) between the accused and the proposed surety (presumably, the closer the proximity, the greater the opportunities for the surety to exercise control over the accused and an accused’s willingness to abide by any bail order).
See the comments of Justice Gillard in R v Mokbel & Mokbel  VSC 158 and Mokbel v Director of Public Prosecutions (Vic) & Director of Public Prosecutions (Cth)  VSC 487 in relation to the appropriateness of a person as a surety, whether the surety has taken adequate steps to ensure an accused answered their bail, and the penalties to which a surety is liable.
Before admitting a person to bail with a surety, the bail decision-maker must be satisfied of the means of the surety. This A document that sets out what a person wants to happen to their money and other property after they die. be done by asking on A person’s promise when they swear to tell the truth in court, or when signing an affidavit. A person taking an oath places one hand on the Bible or other holy book to demonstrate how seriously they take their promise. See also affirmation. any questions thought necessary, and by requiring the proposed surety to sign an A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent..
When is a surety released from their obligations?
When a person has been admitted to bail with a surety, the obligations of the surety continue until:
- the death of the surety (s 20);
- the accused appears at court in accordance with the undertaking;
- if the accused appears at court in accordance with the undertaking and the matter is postponed or adjourned, until the accused again appears at court in accordance with the extended undertaking for bail (except where the surety elects at the initial granting of bail not to be liable on any extension of bail without further To agree to something being done, to approve an action or arrangement. See also informed consent.) (s 16);
- the surety applies to the police or court that granted the bail for a (1) To fulfil an obligation or be released from an obligation. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged (released) from jail. of Legal responsibility, enforced by civil or criminal courts. (this application may be made by a surety at any time); in such cases, the accused is brought before the court and has to find another surety if they are to be released again on bail (s 23);
- the accused is remanded in custody pending The time and place at which a court or tribunal hears the parties argue their case and makes a decision. of the (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. (s 19).
Indemnifying a surety
It is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). for a person to indemnify (i.e. A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt.) a surety, or to indemnify any liability that the surety might incur arising from their surety obligations. The other person and the surety may be guilty of this offence, which carries a fine of 15 penalty units or three months’ imprisonment (s 31 Bail Act).