A common question that arises in any bail application is the meaning of a surety and whether one is required.
There are specific provisions of the Bail Act 2013 (NSW) that define this and what circumstances a surety will be appropriate.
What is bail?
Bail is conditional liberty that an accused is placed on when they are charged with a criminal offence. A person can remain on bail for the amount of time that their case is proceeding before the Court.
What is a 'surety' in bail?
A surety is a person who guarantees the defendant will attend their court date after being granted bail. The surety is required to surrender a security (money or property) if the accused fails to appear in court.
This can be an agreement to forfeit security should a breach of bail occur – known as without security – or the surety can be required to surrender the security to the court before the accused is released on bail.
Who can be a 'surety'?
A person can be a surety if assessed by a judge, magistrate or justice of the peace as suitable.
A surety must be of good character and provide the registry identification documents. They must be over 18 years of age.
It is only the available equity in a property that will be taken into account as security. Any debts attached to the property will subtracted from the value of the property.
The surety is the only person who can provide security and it is an offence for someone else to help them pay security.
There also must be evidence as to the value of the security and that the security belongs to the surety. For monetary amounts, this can simply be bank statements for the last 3 months showing that the security funds have always been present and not recently deposited.
Under Section 26 of the Bail Act 2013 (NSW), a surety and security requirement can only be imposed if there is a bail concern that the accused will fail to appear at court.
A specialist lawyer for a bail application will be able to advise you on the specific requirements for your particular case and circumstances.
Continuing surety
A continuing surety is where you guarantee an accused will attend each court appearance until the case is finished.
If you choose to only be a surety, then you only guarantee that the accused will attend the upcoming court appearance.
How to withdraw as a 'surety'?
You can withdraw as a surety by making an application to the court to amend the accused's bail.
You can read about how to vary bail conditions to understand the requirements.
Common reasons why persons no longer want to act as a surety include that they require the funds for some other purpose, a breakdown in the relationship with the accused or concerns about the accused breaching bail.
You are required to maintain your obligations as a surety until a court removes you as the surety.
