An accused person who is granted bail is under a duty to appear at court in accordance with the bail and to surrender him or herself into custody when so required, and to abide by the other conditions of bail (if any) (s.6 Bail Act).
Any person released on bail who fails without reasonable cause to appear in accordance with the undertaking of bail and surrender him or herself into custody shall be guilty of an offence. This carries a penalty of 12 months imprisonment. The accused has a defence to such a charge if it can be proven that there are reasonable grounds for failure to appear (s.30).
Bail can be extended in the absence of the accused person where a case is adjourned, if the court is satisfied that the reason for non attendance is illness, accident or other good cause (s.16(3)). In these circumstances, written notice must be given by the court to the accused person and their surety (if any) of the new date for attendance (s.16A).
Where a deposit of money or other security is made as a condition of bail, and the person released fails to appear in accordance with the undertaking, the deposit is forfeited to the Crown. However, in certain cases a deposit may be recovered by the person bailed, or by their surety (s.32 Bail Act and s.6 Crown Proceedings Act 1958 (Vic) ("CPA 1958")).
Any member of the police force may arrest without warrant any person who has been released on bail if it is believed on reasonable grounds that the person is likely to break a condition of bail, or is breaking or has broken any condition of bail (s.24 Bail Act). The surety may also arrest the person bailed and bring them before the court to which they are bailed to appear (s.21). The court may also issue warrants for the arrest of a person bailed where the person has failed to answer bail or for the purpose of imposing additional conditions or security (ss.25 & 26).
As stated above (see: "Forms 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(1)). A surety is another person who is bound to ensure that the accused surrenders him or herself 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 to enable the accused to be released on bail.
See the comments of Justice Gillard in R v Mokbel and Mokbel [2006] VSC 158 (26 April 2006) and Mokbel v DPP (Vic) and DPP (Cth) [2006] VSC 487 (14 December 2006) in relation to the appropriateness of a person as a surety, whether the surety has taken adequate steps to ensure an accused answered his or her 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 police or 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
- 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, give information and undertakings via an audio visual 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);
- where the surety applies to the police or court which 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);
- where the accused is committed to prison pending hearing of the charge (ss.19, 24 & 26); or
- where the surety apprehends the defendant prior to the hearing date and brings them before a Bail Justice or a court (s.21).
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 CPA 1958 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 in respect of any liability which 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 penalty units 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 (see above). If necessary, a surety may arrest the accused person in order to bring them before the court and will be able to call on the assistance of the police force to do so (s.21).
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DUTY OF PERSON BAILED :: Last updated: Thu Jul 1st 2010