One of the most common questions criminal lawyers get asked from our clients’ family members is in relation to providing the court a surety for the accused’s bail. For many, providing a surety will feel like a very big decision and you may be overwhelmed, particularly if the surety sought is a significant sum of money or if it is secured against your property. This guide will provide you with all the information you need in relation to acting as a bail guarantor and providing surety.

What is Surety?

When a person is charged with a criminal offence, particularly a serious criminal offence (an indictable offence), they will often face a remand application. A remand application is an application to remand the person into custody (to a remand center / prison) rather than to grant them bail or release them on summons to live in the community. The accused person may understandably resist the application and apply for bail to live, subject to conditions, in the community. Being on bail is a form of conditional liberty. The accused person can live in the community but only so long as they comply with certain conditions. The bail conditions may involve living at a static address, reporting to a police station a number of times per week, not attending points of international departure and conditions relating to contacting witnesses or co-accused. 

When an individual seeks bail, the terms may also involve them being released upon fulfilling certain obligations outlined in section 5(2) of the Bail Act 1977. This typically involves securing a surety or sureties or making a deposit.

A Judge or magistrate will determine if a surety is necessary and order a specific monetary amount. A surety can be provided in cash or can be secured against a property. It must be supplied by a person other than the accused.  Furthermore, the surety may need to appear in court to provide information and assurances to the Judge or Magistrate that they understand their obligations. Quite often, they will be sworn in as a witness on oath whilst giving their assurances and asking any questions that the Court may have. 

Where the surety is secured using cash, that cash is deposited into the Court fund and then held by the Court until bail is discharged and the surety returned. Often cash is used to secure bail when the offender has no criminal history, and it is not thought that a significant amount of money is required to secure bail. However, in other matters, particularly where the charges are serious, surety can be secured against the equity held in a property. The surety has to present to the Court a rates notice, most recent mortgage statement and a land data excerpt (showing their interest in the property). In some cases, where the capital improved value of the property is not accurately reflected in the rates notice, a surety may also obtain a property valuation. Using these documents, the surety can demonstrate that they have a certain amount of equity in the property. 

They can then offer that equity as surety for bail. However, unlike sureties involving cash, sureties secured against property do not involve the actual transfer of money or a mortgage in favour of the Court. Nothing actually happens to the equity in the property nor the mortgage. A surety secured against property creates a power for the Prosecution to apply to have the equity in the property forfeited to the state, in the event that the Court finds that the surety has failed in their obligations.  It happens in the most serious and rarest of cases. 

Who Can be a Surety?

Any individual aged 18 or older, free from any legal incapacity such as unsoundness of mind and possessing funds or assets equivalent to or exceeding the bail amount, may act as a surety. However, corporations or other associations are excluded. 

The discretion to accept a person as a surety lies with the bail decision-maker, as outlined in Section 9 of the Bail Act.

Various factors are considered in assessing the suitability of a surety, including:

  • The financial capacity of the proposed surety; 
  • The relationship between the proposed surety; and 
  • The character and criminal history of the proposed surety.

Regarding the relationship proximity (whether familial, residential, or otherwise) between the accused and the proposed surety, it is presumed that closer relationships increase the potential for the surety to exert influence over the accused and for the accused to comply with bail conditions.

What is a Surety Required to Do? 

In essence, surety is the form of security attached to the conditions of a person’s bail. The purpose of the surety is to ensure that the accused complies with the bail conditions, including surrendering themselves into custody as required. Often a close family member or friend will offer a surety, in the understanding that (if the accused contravenes his bail) that person may be subject to an application for forfeit the surety amount to the state. Surety is sometimes referred to as the “court’s supervisor”. This is particularly so if the accused is a young person living with their parent surety. A surety is also understood to have an effect on an accused person, who is likely to be on their best behaviour if they are aware that a loved one may be subject to a forfeiture application should they not comply with the conditions of their bail. Ideally, a surety will reside with the accused person so that they can observe any changes in them and to provide them with the necessary support. This is not an essential requirement, however. Sometimes, the accused will live with one family member whilst another provides the surety. The most important thing that a surety must do is to comply with any obligations imposed on the surety by the Court. 

For example, the Court might ask a surety for their son (who is living with them) whether they would report the accused to Police if they were out past the Court curfew. Or, whether they would draw to the attention of the Court the fact that the accused had ceased residing with the surety. If the surety agrees to this and does not comply, that would be a contravention of their obligations. 

How can I Lose my Surety?

A common question asked to criminal lawyers is under what circumstances a surety can lose their deposit or forfeit their property. 

In short, should the accused neglect to attend court as stipulated by the bail terms, or reoffend whilst on bail, the surety faces the risk of forfeiting their deposit or incurring a debt to the Crown equivalent to the deposit amount. However, a forfeiture of surety is not automatic. It is not a strict liability. For the surety to be forfeited, the Prosecution must make an application to the Court and the court must grant the application. This occurs in very rare circumstances and must result from a failure of the surety to comply with their obligations. The following is an example of a situation where sureties have failed to comply with their obligations and had their surety forfeited. 

“John Brown” (a pseudonym) was charged with culpable driving and other serious driving offences, after being the driver in a fatal collision, which killed his pregnant girlfriend. At the time of the collision, John, was speeding and under the influence of methylamphetamine. He was also subject to a licence suspension and was driving his girlfriend’s car, which was unregistered. John was granted bail in the Magistrates’ Court to go and live with his parents in regional Victoria. As part of his bail, his parents offered a $200,000 surety secured against the family home (which was mortgage-free). One of John’s bail conditions was that he not drive a motor vehicle and that he comply with a curfew between 10pm and 6am. 

Six months after he was bailed to live with his parents, he was detected by police speeding down a country road in his parent’s sedan doing 25km over the speed limit. It was 10:30pm. When Police attended at his parent’s home, his parent’s told them that he was not home and that he had borrowed their car to go to the shops. John’s parents were aware that he was not allowed out of the house past 10pm and that he was not allowed to drive. In allowing him to use their vehicle, and not reporting him to the Police for doing so, and being out past curfew, John’s parents were not compliant with their obligations as surety. They had breached their obligations to the Court. The Victoria Police made an application for the surety to be forfeited and the Court ordered that John’s parents pay the $200,000 surety amount to the state of Victoria. 

Now, had John’s parents refused to allow him to use their vehicle and then reported him to Police for doing so, as well as being out past curfew, they would have complied with their obligations. Notwithstanding that John had breached his bail, his parents would have complied with their own obligations, so are not at fault. Similarly, had they been fast asleep in bed when John left the premises, they would not have been liable for a forfeiture of their surety because they did not know that John was breaching his bail.  

There are also situations where an Order for Forfeiture can be varied or rescinded once made. Under section 6 of the Crown Proceedings Act, the bail guarantor (person providing surety) may, within 28 days, make an application to vary or rescind the order on the grounds that it would be unjust to require them to pay the amount undertaken to be paid having regard to all of the circumstances of the case. 

When is a Surety Released from their Obligations?

Once a person has been granted bail with a surety, the surety’s responsibilities endure until several circumstances occur:

  • The death of the surety (as outlined in section 20 of the Bail Act).
  • The accused attends court as agreed in the undertaking.
  • If the accused attends court as agreed but the matter is postponed or adjourned, the surety’s obligations persist until the accused appears again in accordance with the extended bail undertaking, unless the surety initially opts out of liability for any extensions without further consent (section 16).
  • The surety requests discharge of liability from the police or court that granted the bail (this request can be made at any time). In such instances, the accused must be brought before the court, and if they are to be released on bail again, they must secure another surety (section 23). This may occur in circumstances where the surety does not trust that the accused will comply with their bail obligations or, less controversially, if the surety intends to move or travel extensively overseas and so cannot supervise the accused’s bail. It may also occur if the surety wishes to sell their property for example. 
  • The accused is remanded in custody pending the hearing of the charge (section 19).

Indemnifying a surety

It is an offence for a person to indemnify (i.e. guarantee) 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). In reality, indemnifying a surety occurs where an accused person (or another) promises to repay to the surety any money lost by virtue of the accused’s non-compliance. For example, if the accused is intending to flee the jurisdiction and their surety becomes suspicious, it is a criminal offence for the accused to promise to cover any losses caused by their flight. 

Final Thoughts from the Galbally Parker Team

Every day in Victoria, accused people are granted bail secured by a surety. In most cases, bail is complied with and the surety is not affected at all. Even if bail is not complied with, the Prosecution must demonstrate that the surety for the accused person has not complied with their obligations to the Court as surety before they can take steps to seek the forfeiture of a surety. However, if you are considering becoming a surety for a loved one, you need to obtain your own comprehensive legal advice. Get in touch with the criminal defence lawyers at Galbally Parker for more information. We have a team of expert bail application lawyers who have comprehensive experience in this area.