Who or what is surety (for bail)?
A surety is a person who agrees to pay money if a defendant:
- fails to comply with the conditions of bail. It may be all or only some of the conditions; check the bail document carefully
- fails to appear in court as required.
If you act as a surety for someone, you’re willing to be responsible for making sure they comply with their order for bail. Otherwise, you can be required to:
- pay the court immediately (some or all of the money), or
- provide an undertaking to pay if ordered.
As the surety, you are required to be in court each time the defendant is bailed to appear.
If the defendant fails to comply with their bail conditions or appear in court, the police or prosecutor will apply for ‘forfeiture’ of the money specified in the bail document.
A copy of this application will be served on you.
The Magistrate may order you to pay some or all of the money.
How the amount to pay is decided
Whether or not you are ordered to pay all or just some of the money depends on factors such as:
- proof by the police or prosecutor that the defendant has breached bail
- the extent (if any) that you are at fault for the defendant breaching bail
- how soon the breach was reported to the police, and how helpful you’ve been in locating the defendant
- if the defendant is still at large (if they have fled)
- your ability to pay
- if you were present at the court hearing, even if the defendant wasn’t.
Arresting the defendant
If you reasonably believe that the defendant has (or is about to) breach their bail, you may arrest the defendant and bring them before the court as soon as practicable.
If you can’t bring the defendant to court yourself, ask the police for help. You’ll need to show them your surety papers.
Once the defendant is arrested and taken to court, the Magistrate may:
- restore the order for bail, or
- revoke the bail and order the offender be remanded in custody, or
- revoke the bail and make a fresh order for bail.
If the bail order was originally made in the Supreme Court, the Magistrate may remand the defendant in custody, to appear before a Supreme Court judge within 7 days.
Being released from being a surety
If you no longer wish to be a surety for someone, you must apply to the court. The defendant must be present at the hearing of your request.
Getting your money refunded
Unless the Magistrate has ordered otherwise, once the defendant’s matters have been finalised (the sentence imposed or the charges dismissed), any money you’ve paid as surety can be refunded. The money will be paid by cheque or directly deposited to your back account.
Apply to the Court by providing the detail listed in the Surety Refund document.