What Is a Surety? Bail in NSW

A surety is a person who agrees to take responsibility for someone else’s bail, pledging money or property as security to ensure you comply with your bail conditions. In other words, sureties provide security in bail applications to ensure the accused person complies with bail conditions set by the court. Being a surety is a significant commitment, requiring a clear understanding of the responsibilities, obligations, and risks involved.

This article aims to provide comprehensive insights into 

• the role of a surety
• highlighting the connection between a surety and the security deposited
• the types of security that can be used
• the eligibility requirements and process of becoming a surety
• the process of bail applications and the role of sureties in supporting the accused person
• how to withdraw from being a surety
• the process for obtaining a refund of the security deposit.

Whether you are considering becoming a surety or are currently acting as one, this article will equip you with the necessary knowledge to navigate this important role effectively. 

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The Role & Responsibilities of a Bail Surety

A surety is an individual who agrees to take responsibility for ensuring that the accused complies with their bail conditions. This involves pledging a sum of money or property as a form of security to the court, which may be forfeited if the accused fails to meet their bail conditions.

The role of surety begins with the bail application process. When the accused applies for bail, the court may require a surety to guarantee that the accused will adhere to the conditions set by the court. This is particularly common in cases where the court deems there to be a risk that the accused may not comply with bail conditions. The surety must agree to the terms and conditions outlined by the court; in doing so, the surety agrees to a surety undertaking, which is a formal commitment to the court. This often includes providing financial security or property as collateral.

Once the bail application is successful and the accused is released on bail, bail provides conditional liberty to the accused, allowing them to remain in the community under certain conditions. The surety’s responsibilities will still continue. The surety must ensure that the accused follows all bail conditions, such as attending court hearings, reporting to the police, or adhering to curfews. The surety must also ensure that the accused appears in court for every court hearing or scheduled hearing, and that failure to do so can result in serious consequences. If the accused fails to appear in court for a scheduled hearing, the surety may forfeit the security and face additional legal risks. If any of these conditions are breached, the surety risks losing the pledged security and may face additional legal consequences.

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Surety vs Security

A surety is essentially a bail guarantor – a person who pledges to take responsibility for ensuring that you comply with your bail conditions. This person acts as a guarantee to the court that you will adhere to all specified requirements, such as attending court hearings and abiding by any restrictions. Only sureties who can demonstrate that the security belongs to them are eligible to provide it.

Security refers to the financial or property deposit that the surety provides to the court as part of this guarantee. The security serves as collateral to ensure your compliance with bail conditions. Sureties must be able to pay security without causing financial hardship. If you fail to meet these conditions, the court can forfeit the security, meaning the surety loses the deposited money or property.

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Types of Bail Security

When acting as a surety, there are several types of security that can be deposited to guarantee bail. The most common forms of bail security are money and property. The deposit amount required will depend on the court's assessment and the proposed surety's financial standing. The court will also assess whether the proposed surety is suitable before accepting the security. Each type has specific requirements and procedures that must be followed to ensure it is acceptable to the court.

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Money in the Form of Cash or Bank Cheque as Security

One of the simplest forms of bail security is money, which can be deposited either in cash or as a bank cheque. To provide cash as security, the surety must deposit the funds to the court. The money paid as security must belong to the surety and not be borrowed or provided by another party, ensuring that the security belongs to the person providing it.

A bank cheque will involve obtaining a cheque from a bank for the required amount, payable to the court.

The amount you should pay for bail will vary based on several factors. There is not a set amount for bail, the amount or value of the property will general be based on factors such as:

1. The severity of the offence committed. Usually the more serious the offence, the more value should be put as bail security. 
2. Your financial situation.
3. The likelihood of your compliance with the conditions of your bail.

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Property as Security

Property can also be used as security for bail; however, this is more complex than using cash or a bank cheque. When using property as bail security, the court several steps to ensure its value and ownership status.

A title search is conducted to confirm that the property is legally owned by the surety and that there are no outstanding claims against it. The property must be unencumbered, meaning it should not have any mortgages that could affect its value or the surety’s ability to use it as bail security.

A property valuation will next be performed to determine the market value of the property. This valuation helps the court decide whether the property is sufficient to cover your bail amount.

Once these steps are completed and the court is satisfied with the property, it can be accepted as security. The surety will then provide the necessary documentation to the court. These documents must be lodged with the court registry for official processing, and the court holds the property as collateral until the bail conditions are met.

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Eligibility Requirements to Being a Surety

To become a surety, a person must meet a specific eligibility criterion to ensure they are capable of fulfilling the responsibilities associated with the role. The court has strict requirements to guarantee that the surety can provide reliable support and security for your compliance with bail. The court, magistrate, judge, or justice will assess whether the proposed surety is of suitable character and has no relevant criminal history.

1. The surety must be over 18 years of age as they are an adult and can enter into a legally binding agreement. 
2. The surety must have sufficient savings/possessions which are worth more than the security required in the bail undertaking. This is taken from the Supreme Court guidelines and ensures that the surety can cover the bail amount if you do not comply with your bail conditions.
3. The surety must provide evidence of their financial capability such as bank statement or property deeds to prove they have the financial means to cover the bail security. 
4. The surety should not have a significant criminal record. While minor offences may not disqualify a surety, having no criminal record is usually preferred. This ensures the surety is reliable by the court. 
5. The surety must also show a genuine commitment to ensuring you adhere to your bail conditions. This means understanding the responsibilities and risks involved.
6. The bail decision maker, such as a magistrate, judge, or justice, will consider the relationship between the surety and the accused, as well as the surety's suitable character and financial standing, before approving the surety arrangement.

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Process of Becoming a Surety

Becoming a surety involves several steps to ensure that the person is suitable and fully understand the responsibilities they are undertaking. Often, this process begins with bail applications submitted to the magistrates court, district court, or supreme or district court, depending on the case. The process to become a surety is usually as follows: 

1. Gather documents: To demonstrate eligibility, the surety must gather several documents such as:
   1. A valid proof of identity such as a driver’s licence or a passport
   2. Proof of financial capability such as bank statements or property deeds
   3. Character references from people who can attest to the surety’s character and reliability. 

2. Writing an Agreement Letter: The potential surety must write a letter stating they agree to act as a surety. This will include:
   1. A declaration of the intention to become a surety
   2. An acknowledgment of understanding the responsibilities and risks involved. 
   3. A commitment to ensuring you comply with bail conditions 
   4. Details of the security, outlining whether it is money or property.

3. Submitting the Application: When all documents and references are prepared, the surety must apply to the court. This will involve completing all necessary forms at court, attaching all documentation/references, and submitting the letter of agreement. The court will then set a court date to hear the application.

4. Approval by the Court: If the court is satisfied with the surety’s suitability, it may grant or deny the application. Once granted, the surety's obligations begin, and the surety will then be formally recognised as responsible for ensuring you comply with your bail conditions.

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Risks Involved in Being a Surety

Being a surety carries significant responsibilities and potential risks. It is necessary to understand these risks before agreeing to act as a surety.

One of the main risks is the financial liability of the surety. If the defendant does not comply with the bail conditions or fails to appear before the court, the security provided by the surety can be forfeited. This means that the surety could lose the entire amount of security pledged to the court.

If the surety obligations are breached, the surety may face further legal consequences. Indemnifying a surety for losses they may incur arising from their obligations is a criminal offence and can result in up to three months imprisonment under the Bail Act.‍

The surety may also need to take proactive steps if the defendant breaches their bail conditions. This may include informing the court or the police. Public prosecutions may become involved if bail is breached or if the surety's obligations are not met.

If the defendant is bailed and then breaches conditions, the surety may lose their guarantee. This can involve a large amount of time and emotional stress especially if the defendant is a family member or friend.

Being a surety can also be difficult in handling personal relationships. The surety must ensure the defendant complies with all bail conditions, which may impact their relationship.

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How to Withdraw from Being a Surety

While becoming a surety is a large commitment, it is important to know that you are not permanently bound to the responsibility. If circumstances change, you can withdraw from your role as surety. However, your obligations as a surety continue until the court formally releases you from your responsibilities.

Reasons for Withdrawing 

There are multiple reasons for why you may choose to withdraw as a surety. This can include: 

1. Concerns regarding compliance: If you think that the defendant will not comply with conditions and will likely breach their bail conditions. 
2. Personal circumstances: Changes in your personal circumstances including financial restraints may make it difficult to continue as surety.
3. Relationship difficulties: The relationship between yourself and the defendant may be impacted. 

Withdrawal Process

To withdraw from being a surety, you will need to follow the process: 

1. Apply to the court by notifying them of your intention to withdraw. This is usually done by completing an application.
2. Submit the completed application to the court. 
3. The court will review your application, and if satisfied, will formally discharge you from being surety.

Consequences for the Defendant

When you withdraw as a surety, the defendant’s bail will be impacted. The court may: 

1. Revoke bail if another surety cannot be found. This will lead to the re-arrest and detention of the defendant, who will be held in custody until a new surety is found or bail is otherwise resolved.
2. Order the defendant to fund a new surety to avoid having their bail revoked. Over the time of finding a new surety, the defendant will be temporarily detained.
3. Alter the bail conditions of the defendant to reflect the change in surety, potentially imposing stricter penalties.

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How Will the Security Be Returned? 

The security deposited by a surety is usually returned when the legal proceedings are finalised or the bail conditions are no longer necessary. 

The most usual time security is returned is when the matter is finalised. This occurs when the court has reached a decision and there are no further legal obligations for the defendant to meet regarding their bail. 

Returning Sums of Money Deposited 

When a sum of money is deposited as security for bail, the process for its return involves several steps to ensure that it is handled according the court’s procedures. 

Once the conditions for the return of the security are met, the process of returning the money pledged as security will begin. The court will be notified that these conditions are satisfied and will conduct a verification process to return the security. The court must confirm that the defendant has complied with all conditions of bail and that the surety has fulfilled their role. 

Once the verification process is complete, the court will approve the release of the money. The surety will be contacted and informed about the decision. The court will then arrange for the return of the funds, this can be done either through cheque or by making a deposit into the surety’s account. 

Returning Property Deposited

Once the conditions for the return of the security are met, the process to return the property to the surety will begin. The court will be notified that the conditions are met and will conduct a verification process to return the security. This involves reviewing the case to ensure there are not outstanding issues or breaches of bail. The court must confirm that the defendant has complied with all conditions of bail and that the surety has fulfilled their role. 

Once the verification process is complete, the court will approve the release of the property. The surety will be contacted and the court will arrange for the release of any claims or holds on the property. This will include completing a Withdrawal of Caveat Form.

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Need expert legal advice?

If you have any questions or concerns about being a surety or need further understanding of the responsibilities involved, do not hesitate to reach out to our experienced team of Defence Lawyers. We are here to provide you with expert advice and support, and we can provide legal representation in bail applications and related court proceedings,ensuring you fully comprehend the role and obligations as surety. 

We can guide you through the process, help address any issues that may arise, and provide the necessary legal assistance to protect your interests. Call us now at (02) 7813 0950 or schedule in a free initial consultation virtually or at our Parramatta Office.

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