A 'bail surety' or 'bail guarantor' is a person other than the defendant who commits to the Court that the defendant will comply with all bail conditions and appear at their scheduled court date following the grant of bail.
A bail surety, also known as a bail guarantor, is an individual who agrees, with the approval of a Magistrate, Judge, or Justice of the Peace, to take on the responsibility of ensuring that the defendant follows all bail conditions and appears at their scheduled court date after being granted bail.
The suitability and character of the surety are assessed by the authorities, considering their relationship with the accused and their ability to provide bail security. The term ‘security’ refers to assets presented to the court by the surety, which the court may seize if the defendant fails to appear at their next court date despite being granted bail.
To qualify as a suitable surety, the potential candidate may need to undergo a criminal record check. They must be at least 18 years old and provide substantial proof of identification. The surety is required to have savings and assets that are debt-free and exceed the value of the bail security amount. Additionally, the surety must independently undertake the responsibility of providing the bail security.
According to Section 86 of the Bail Act 2013 (NSW), it is considered an offence for a person to indemnify another against any forfeiture that might occur under a bail security agreement. Both the person providing the indemnification and the person being indemnified will be considered guilty of an offence if indemnification takes place for any forfeiture.
When submitting security, the surety must provide specific documents to the Court registry. These documents may include the Certificate of Title for any property, bank statements, verifiable evidence of property value, and a valid mortgage document if applicable.
There are two types of bail sureties: ‘surety’ and ‘continuing surety.’ A ‘continuing surety’ commits to ensuring the defendant’s appearance for all future court dates.
If a surety is no longer able to assure the court of the defendant’s compliance with bail conditions or appearance at the next court date, they must apply to the court for release from their surety obligations and inform a police officer. These obligations persist until the court issues an order for their release.
Discharging as a surety often results in the defendant being taken into custody. The discharge process involves completing and submitting an Application for Discharge from Liability to the Court Registry. A date for appearing before a judge and receiving an Order to Appear will be provided to the surety. This order should be served to the defendant, and an Affidavit of Service must be provided to the Court. Both the surety and the defendant are required to attend court for the Application’s hearing.
The judge may either reject the application, release the surety from their obligations, impose new bail conditions on the defendant, or revoke the defendant’s bail and place them in custody.
For more information, reach out to KPT Defence Lawyers at (02) 9267 5555.
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