Sureties

 

A surety is a person, with capacity who is over eighteen years old, other than the person on bail, who guarantees to pay a set amount of money to the court if the accused does not appear in court as instructed to do so by the conditions of the bail.

As stated above (seeForms of bail”), the conditions for the release of a person on bail may include a provision for a person to be released upon entering into an undertaking with a surety or sureties (s 5(2)(c)). A surety is another person who is bound to ensure that the accused surrenders themselves into custody in accordance with the conditions of bail. The surety may be required to pay the amount set for the bail if the accused fails to attend the court in accordance with the undertaking. The surety may also have to put down a deposit of money or other security (e.g. property) to enable the accused to be released on bail.

See the comments of Justice Gillard in R v Mokbel and Mokbel [2006] VSC 158 and Mokbel v Director of Public Prosecutions (Vic) and Director of Public Prosecutions (Cth) [2006] 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.

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 cash or assets not less than the value of the bail may be a surety. This would not include a corporation or other association. Section 9 gives a discretion to the judicial officer as to whether to accept a person as a surety. 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 will be the opportunities for the surety to exercise control over the accused and an accused’s willingness to abide by any bail order);

any other matters thought relevant.

Before admitting a person to bail with a surety, the police officer or judicial officer must be satisfied of the means of the surety. This will be done by asking on oath any questions thought necessary, and by requiring the proposed surety to sign a sworn statement.

A surety may appear before a court or give information and undertakings via an audiovisual link (s 9(3A) Bail Act).

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 consent) (s 16);

the surety applies to the police or court that granted the bail for a discharge of liability (this application may be made by a surety at any time). In such cases, the defendant is brought before the court and will have to find another surety if they are to be released again on bail (s 23);

the accused is remanded in custody pending hearing of the charge (ss 19, 24, 26).

If the accused fails to appear in accordance with the conditions of bail, the surety is liable to forfeit the deposit of money or becomes indebted to the Crown for the amount of the bail. But a surety has rights under section 6 of the Crown Proceedings Act 1958 (Vic) to apply for an order varying or rescinding the forfeiture.

It is an offence for any person to indemnify (that is, to guarantee) any surety or to agree with a surety to indemnify any liability that the surety might incur arising from the obligations as a surety. Both the other person and the surety may be guilty of this offence, which carries a fine of 15 pu or three months’ imprisonment (s 31 Bail Act).

This may affect the operation of some “bail fund” schemes. The surety must ensure that the accused appears at the time and place required in accordance with the conditions of the bail. This duty can be avoided only if the surety is discharged.