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Bail guarantor (surety)

Information about bail guarantees and bail guarantors (sureties).

Change in wording: a 'surety' is now called a 'bail guarantor' or bail guarantee'

From 25 March 2024 the terminology used in the Bail Act 1977 changed. The word 'surety' is no longer used, and the phrases 'bail guarantor' and 'bail guarantee' are used instead depending on the context.

Bail guarantor

A bail guarantor is someone who gives an undertaking or guarantee to the court to make sure that the accused surrenders into custody in accordance with their bail conditions.

Bail guarantee

A bail guarantee is the undertaking given by a bail guarantor to pay a specified amount if the if the person on bail fails to turn up to Court, fails to comply with some other condition of their bail undertaking or commits an indictable offence while they are on bail.

The bail guarantor may also have to pay a deposit or other security before the accused may be released on bail.

The bail guarantor must:

  • be 18 years or more
  • not have any disability, and
  • be able to cover the amount of bail that has been set (this could be in real estate or in personal property).

See s. 9, 5AAB(3), (4)—Bail Act 1977 (Vic).

Assessing whether a surety is suitable

When assessing the suitability of a person proposed as bail guarantor, the court will consider whether the bail guarantor:

  • has the financial resources to meet the amount of bail
  • is of good character
  • has any previous convictions
  • is a relative of accused
  • lives with accused—or where they live.

If the bail guarantor is found to have made any false statements, the Court may declare the bail to be forfeited and the accused may be arrested.

See ss. 5AAB, s 9(2) and 9(6)—Bail Act 1977 (Vic).

If objection is raised about a bail guarantor

If the crown makes an objection about a bail guarantor, the decision about whether they are suitable must be made by a magistrate or a judge.

See s. 9(2A)—Bail Act 1977 (Vic).

Affidavit or declaration of justification

Before bail is granted, the court or person who has been authorised to admit an accused to bail may make sure that the bail guarantor(s) has sufficient money to cover the amount of bail. They may even require money to be deposited or may need a passbook or title as security.

They may also require that the bail guarantor(s) swear or declare their financial position in an affidavit. There are penalties for providing false material. False information could also lead the bail to be forfeited and a warrant may be issued for the apprehension of the accused.

See s. 9(3)—Bail Act 1977 (Vic) and Form 5—Bail Regulations 2022 (Vic).

Distant bail guarantor

A bail guarantor may appear in Court by videolink and may also sign the undertaking at a remote location and transmit it to the Court by any means.

See ss. 9(3A)—(3D)Bail Act 1977 (Vic).

Payment by the bail guarantor may be required

The bail guarantor may have to pay cash or provide a document that gives evidence of their ownership and the value of any property or other asset to the value of the bail imposed.

The bail guarantor may later exchange the amount of bail in cash for any documents lodged as evidence of their financial circumstances and ability to pay. Their endorsement is then placed on an affidavit or declaration of justification, advising that nature of security has changed.

The bail guarantor must be given a receipt.

See ss. 9(7), 9(8)—Bail Act 1977 (Vic).

Bail guarantor must be informed if there is a bail appeal

If the accused has been bailed by a bail guarantor (or guarantors) it is the accused’s responsibility to let their bail guarantor(s) know if they apply for an order to vary the amount of bail (or other bail condition) that has been fixed.

They must give notice of their application in writing and in a prescribed form.

The bail guarantor is entitled to appear at hearing of the bail application and give evidence. The courts, including the Magistrates' County and Supreme courts, or the bail justice may adjourn the hearing to enable the bail guarantor to appear.

The notice required to be given to the bail guarantor pursuant to s. 18(7) of the Bail Act 1977 (Vic) may be:

  • delivered personally
  • sent by post
  • delivered to place of residence shown in affidavit or declaration of justification for bail made by the bail guarantor.

For information about the prescribed form for the notice see s. 18AI(2) of the Bail Act 1977 (Vic).

Application for discharge by bail guarantor

A bail guarantor may apply to court at any time to apply for their liability to be discharged. If they do, the court will issue warrant for apprehension of the accused to be brought before court.

At the hearing the court may direct that the bail guarantee may be discharged. If the bail guarantor is discharged, the court will expect the accused to provide another bail guarantor or security. If this is not provided, court may imprison the accused until a bail guarantor or security is provided or until next hearing or trial of the matter.

See s. 23—Bail Act 1977 (Vic).

Bail guarantor not to apprehend the accused

Until 1 January 2011, the bail guarantor was able to apprehend the accused person under common law and bring them before a court or the bail justice. This right has been abolished.

See s. 21—Bail Act 1977 (Vic).

Death of bail guarantor

If a bail guarantor dies before bail is forfeited, their estate shall not be subject to any bail liability. The accused will probably have to find another bail guarantor.

See s. 20—Bail Act 1977 (Vic).

If accused fails to appear in court

If the accused person:

  • does not show up in court
  • breaches their bail conditions, or
  • commits an indictable offence while they are on bail

the bail guarantor could be required to forfeit the money that they put forward. If the bail guarantor paid cash, the court will order that the money is forfeited and paid to the officer of the court. If the bail guarantee was in the form of property, the property may be seized and sold.

What bail guarantor can do

If bail is declared to be forfeited and the bail guarantor was not at court when the forfeiture order was made, the bail guarantor may apply to court to have the order varied. They have 28 days to do this from the time that the order comes to their attention.

See ss. 17 and 32—Bail Act 1977 (Vic), s. 6—Crown Proceedings Act 1958 (Vic)

More information

Legislation

Bail Act 1997 (Vic)

  • s. 5AAB—a court must consider the financial circumstances of a bail guarantor
  • s. 9—bail guarantor
  • s. 9(2A)—if an objection is raised about the suitability of a bail guarantor
  • s. 17—written notice to be given to accused and bail guarantor about conditions of bail
  • s. 18AC—application for variation of conditions of bail
  • s. 18AI—notice of application for variation to be given to sureties
  • s. 20—death of bail guarantor
  • s. 21—bail guarantor may no longer apprehend the accused person
  • s. 23—bail guarantor may apply for discharge

See Bail Act 1977 (Vic).

Bail Regulations 2022 (Vic)

  • r. 8—written notice setting out conditions of bail
  • r. 11—warrant to arrest if bail guarantor gives false information
  • Form 1—Undertaking of bail
  • Form 2—Undertaking of bail for attendance at trial
  • Form 4—Notice of obligations for bail for accused
  • Form 5—statement of reasons for granting bail
  • Form 6—declaration of justification by bail guarantor to undertaking
  • Form 7—warrant to arrest if a bail guarantor gives false information in support of an undertaking of bail

See Bail Regulations 2022 (legislation.vic.gov.au)

Updated