In criminal cases, an accused on bail will usually have various conditions, one of which is called a ‘surety’. A surety is someone who, as a condition of an accused being granted bail, enters into a surety undertaking. This means the surety agrees to forfeit an amount of money if an accused fails to appear in court as required by their bail undertaking. This is often referred to as getting someone to ‘go surety’.

Sureties are typically imposed in more serious cases where there is a concern an accused will fail to appear in court. This can arise because of the seriousness of the offence, the strength of the case, the accused’s history of complying with bail, or a combination of these and other factors. An alternative to a surety that is sometimes imposed is a reporting condition, requiring an accused to report to their local police station a number of times per week.

If granted bail with a surety condition, an accused must remain in custody until a surety of the required value is approved by the court. Sureties can range from small amounts of around $500 up to $500,000 or more.

A surety must be approved by either a:

• judicial officer;
• registrar of a court, other than a deputy registrar of the Magistrates or Childrens Court;
• an authorised police officer;
• an associate of a judge of the Supreme, District or Childrens Court;
• person in charge of a lock-up or prison, where an accused is in custody; or
• where the accused is a child, by an authorised community services officer.

A judicial officer who grants bail to an accused with a surety undertaking may make an order as to who is to approve the surety, and as to the giving of notice to the prosecutor of an application for approval of any surety.

Requirements for a surety to be approved

Prior to approval, the proposed surety will be given a notice outlining the proposed terms and conditions of the accused’s bail, as well as information regarding the rights obligations and liabilities of sureties. The surety will also be given a declaration form to complete which is designed to disclose to the security approval officer all information relevant to the decision. The surety must have proof of sufficient assets to the value of the surety undertaking, prior to being approved. Whether a surety will ultimately be approved depends on the matters outlined below.

Persons disqualified from being sureties

The below persons cannot be approved as a surety:

• persons under 18;
• a person whose combined assets, after taking into account their debts and liabilities, are less than the amount in the surety undertaking;
• where there are reasonable grounds for believing that the person to be surety will be indemnified by any person against any forfeiture of the amount in the surety undertaking.  That is, where in effect a surety will be paid by a third party if they have to forfeit the surety undertaking, making the surety condition meaningless;
• where the surety approval officer knows or has reasonable grounds to believe that there is a current restraining order between the surety and the person to be granted bail; or is in a family relationship with the accused and was a victim of an offence committed by the accused within the last 10 years, or was an alleged victim of an offence committed by the accused (these provisions do not apply where the accused was a child).

Matters to be taken into account when approving a surety

The surety approval officer is to have regard to all matters which appear relevant, including:

• the character and antecedents of the applicant for surety;
• their connection and proximity to the accused; &
• the surety’s ability pay or give security for the amount in the surety undertaking, without excessive hardship to the surety or their dependents.

Assuming a surety applicant is not disqualified, and after considering the matters outlined above, the surety approval officer will either approve or not approve the applicant for surety. If not approved, reasons must be recorded for not doing so. A decision to not approve an applicant for surety is final unless the applicant meets the conditions to re-apply. Those include that new facts or circumstances have arisen since the decision was made, or failing to properly present the case for surety approval on the last occasion.

Power of a surety to arrest an accused / cancel their undertaking

A surety may arrest an accused if they have reasonable grounds to believe the accused will fail to appear in court, or has breached any other conditions of their bail, or has been in breach of a home detention condition.

A surety may also apply to a judicial officer to cancel their surety undertaking, without grounds.

Forfeiture of a surety undertaking

If an accused fails to appear in court as required, the State may apply to a judicial officer for an order that the sum in the surety undertaking be paid. The representative of the State is the DPP if the accused failed to appear in the District or Supreme Court, or Court of Appeal, or another court if the DPP is the prosecutor in that court. In other cases it is the State Solicitor.

The judicial officer must order forfeiture of the full amount in the surety undertaking, unless the surety attends at the hearing and shows there was reasonable cause for the accused’s failure to appear in court, or on other grounds including hardship.

Any amount ordered to be paid by the court is recoverable under Part 5 of the Fines, Penalties and Infringement Notices Enforcement Act. This includes penalties such as suspension of the surety’s drivers license. The State may also recover the amount as a civil debt and seek to forfeit the surety’s property to satisfy the amount owed under the surety undertaking.

Conclusion

A surety condition on an accused’s bail is a significant condition. Failure to have a surety approved can result in a refusal of bail. Further, if a surety is approved, they have the power to arrest an accused or revoke their bail by applying to cancel the undertaking. Finally, if an accused with a surety condition fails to appear in court, the surety can be liable to pay a significant sum to the State. If you require advice regarding a surety undertaking, don’t hesitate to contact James Jackson Criminal Defence today.