- What is bail?
- What is a 'surety' in a bail matter?
- Who can be a surety?
- What do you you if you think the defendant will default?
- Need further information?
Bail is an agreement to attend court to answer a criminal charge. It can be granted at any stage of criminal proceedings. Often, when bail is granted, a number of conditions are applied to the bail undertaking. These can include surrendering a passport or agreeing to report to police on a regular basis. A well known condition is requiring the deposit of a sum of money with the court and agreeing to forfeit that money if bail is breached.
A surety is someone who is often mentioned in a bail undertaking. If the defendant fails to appear, the money or property may be 'forfeited to the court'. Another condition used when defendants apply for bail, is the naming of a surety. A surety is a person who guarantees that the defendant will attend her or his court hearing. The surety is sometimes required to deposit the security as a commitment that the defendant will appear. This security is returned when the hearing has finished. If the defendant does not turn up to court, the surety loses the security and the court may keep it.
To be accepted as a surety, the judge in court or Justice of the Peace (JP) who the bail undertaking is signed in front of must determine that you are of suitable character. This may involve doing a criminal record check.
You will need to prove your identity and residential address to the judge or JP. You will also be asked to provide details of how long you have known the defendant and describe your relationship. For example you might be the defendant's parent, wife or husband.
To be a surety, you need to:
- be over 18 years of age,
- have savings and possessions that are worth more than the security required in the bail undertaking, and
- be wholly responsible for funding the security (that means no-one else can be help pay for that security including the bail applicant; it is an offence for them to do so). Sometimes the surety will be required to either deposit or guarantee security. If you guarantee security, you will be required to show that you have the means to pay that security if the defendant breaches bail and fails to appear in court. You will also be asked to show that any security that is guaranteed or deposited with the court belongs to you. For example, if the security is $1000 you will need to provide a copy of your bank account showing that the money has been in your account for more than five days.
If you believe the defendant is likely to breach the bail undertaking and not turn up to court, you should notify a police officer and apply to the court to be discharged from your obligations as a surety. Your obligations as a surety will continue until an order is made by the court that cancels your surety undertaking. When you are discharged from being a surety the defendant is usually taken back into police custody.
Applying to the court for discharge as a surety involves the following:
- You need to complete an Application by surety for discharge from liability form and lodge it at the Registry of the Supreme Court, Level 5, Law Courts Building, Queens Square, Sydney.
- You will be given a date to appear before a judge of the court and handed an Order to Appear which must be served on the defendant.
- The person who serves the Order to Appear on the defendant, usually the surety, will need to complete an Affidavit of Service form and provide this to the court.
- Both you and the person you are surety for must be in court on the date allocated for the hearing of your application. If only one of you attend, the judge will not deal with the application and your obligations as surety will continue.
If the court is satisfied that the person you are surety for has been served with the Order to Appear, the court may issue a warrant for his or her arrest. The Supreme Court Judge may refuse your application, discharge you from your obligations as a surety, grant new bail conditions or cancel the grant of bail and place the person you were surety for into custody.
If you need more information about this, contact the Supreme Court. Court staff can provide you with the relevant forms, however they cannot:
- give you legal advice
- tell you what to say
- tell you if your application is likely to be successful, or
- tell you what the Judge will decide.
If you cannot hear very well and need help for a court appearance, please contact the court in advance. Foreign language interpreters will be provided to bail applicants on request. Court staff can make arrangements for sureties requiring the use of foreign language interpreters.
For legal advice, speak to a solicitor.
The following organisations may, in some circumstances, be able to provide help.
Legal Aid Commission of NSW provides legal aid and other legal services to disadvantaged people. If more than legal advice is needed, they may be able to provide legal representation. Its toll free number for people under 18 is 1800 101 810.
The Aboriginal Legal Service can be contacted on 1800 765 767.