Fact Sheet on Bail Matters
Bail is an agreement to attend court to answer a criminal charge. It can be granted at any stage of criminal proceedings. Often, when bail is granted, a number of conditions are applied to the bail undertaking. These can include surrendering a passport or agreeing to report to police on a regular basis. A well known condition is requiring the deposit of a sum of money with the Court and agreeing to forfeit that money if bail is breached.
What is a surety in a bail matter?
A surety is someone who is often mentioned in a bail undertaking. If the defendant fails to appear, the money or property may be “forfeited to the Court”. Another condition used when defendants apply for bail, is the naming of a surety. A surety is a person who guarantees that the defendant will attend her or his Court hearing. The surety is sometimes required to deposit the security as a commitment that the defendant will appear. This security is returned when the hearing has finished. If the defendant does not turn up to court, the surety loses the security and the Court may keep it.
Who can be a surety?
To be accepted as a surety, the Judge in Court or Justice of the Peace (JP) who the bail undertaking is signed in front of must determine that you are of suitable character. This may involve doing a criminal record check.
You will need to prove your identity and residential address to the Judge or JP. You will also be asked to provide details of how long you have known the defendant and describe your relationship. For example you might be the defendant’s parent, wife or husband.
To be a surety, you need to:
- be over 18 years of age,
- have savings and possessions that are worth more than the security required in the bail undertaking, and
- be wholly responsible for funding the security. (That means no-one else can be help pay for that security including the bail applicant: it is an offence for them to do so.)
Sometimes the surety will be required to either deposit or guarantee security. If you guarantee security, you will be required to show that you have the means to pay that security if the defendant breaches bail and fails to appear in court.
You will also be asked to show that any security that is guaranteed or deposited with the court belongs to you. For example, if the security is $1,000 you will need to provide a copy of your bank account showing that the money has been in your account for more than five days.
What do you do if you think the defendant will default?
If you believe the defendant is likely to breach the bail undertaking and not turn up to court, you should notify a police officer and apply to the court to be discharged from your obligations as a surety. Your obligations as a surety will continue until an order is made by the Court that cancels your surety undertaking. When you are discharged from being a surety the defendant is usually taken back into police custody.
Applying to the Court for discharge as a surety involves the following:
1. You need to complete an Application by surety for discharge from liability form and lodge it at the Bail Matter Counter at the Supreme Court. This is located on the 4th floor of the Law Courts Building, Queens Square, Sydney.
2. You will be given a date to appear before a judge of the Court and handed an Order to Appear which must be served on the defendant.
3. The person who serves the Order to Appear on the defendant, usually the surety, will need to complete an Affidavit of Service form and provide this to the Court.
4. Both you and the person you are surety for must be in court on the date allocated for the hearing of your application. If only one of you attend, the Judge will not deal with the application and your obligations as surety will continue.
If the Court is satisfied that the person you are surety for has been served with the Order to Appear, the Court may issue a warrant for his or her arrest. The Supreme Court Judge may refuse your application, discharge you from your obligations as a surety, grant new bail conditions or cancel the grant of bail and place the person you were surety for into custody.
Need further Information?
If you need more information about this, call the bails clerk at the Supreme Court on 02 9230 8045.
Court staff can give you any form you need to complete and help you fill them in. However, Court staff cannot:
- give you legal advice,
- tell you what to say,
- tell you if your application is likely to be successful, or
- tell you what the Judge will decide.
If you cannot hear very well and need help for a court appearance, please speak to the bails clerk. He or she will tell you how the Court can help you. Foreign language interpreters will be provided to bail applicants on request. Court staff can make arrangements for sureties requiring the use of foreign language interpreters.
For legal advice, speak to a solicitor. The following organisations may in some circumstances be also able to provide help.
Legal Aid Commission is 02 9219 5001. Its toll free number for people under 18 is 1800 10 18 10.
The Aboriginal Legal Service can be contacted on 02 9319 2122.
What documents are required when property is used by the surety in a bails matter?
(a) The Certificate of Title i.e. the Deeds.
(b) Written evidence of the value of the property. A letter from a licensed valuer is acceptable and this should include a reference to the property as described in the Certificate of Title, i.e. Folio Identifier No. etc.
(c) An up-to-date title search on the property (obtained from the Land Titles Office) i.e. a search done on the same day.
(d) An acceptable form of mortgage (2 copies) and a caveat (a blank mortgage and caveat can be obtained from a law stationer). A completed sample of a caveat and mortgage is available on the Supreme Court website. The mortgage and caveat must have stamp duty paid and be stamped by the Office of the State Revenue (located at Level 3, Hunter Street, Sydney). The mortgage will not be registered unless the accused does not comply with the bail conditions and there is an order made by the Estreats Court. The caveat is signed by the Prothonotary at the Supreme Court and must be registered at the Land Titles Office.
e) A letter from the lender whose mortgage appears on the Certificate of Title i.e. the Deeds, showing -
(i) Whether the lender consents to a further mortgage being entered into with the Prothonotary; and
(ii) The amount still owing on the loan.
(f) An irrevocable authority signed by the borrower(s) and lodged with the bank/building society directing that lender to hand both the Certificate of the Title and a Discharge of Mortgage in registerable form to the Prothonotary (see attached example).
What documents are required when property is used by the surety in a bails matter and if the property is already encumbered by a caveat?
The documents listed in (b) to (f) above and
(a) A copy of the caveat so that the reason for the caveat and the value of the interest claimed by the caveator can be ascertained.
How is money, put forward as bail, refunded?
If your bail agreement includes the deposit of money as a condition, it will be refunded by way of a cheque when the matter is finished even if it was originally deposited in cash. To get your money back you need a bail refund letter. This can be collected by contacting the Court where your charges were finalised. (Not where your bail application was heard.) A request can be made to the Court where the matter was finalised to fax or send the bail refund letter to the Supreme Court. The Supreme Court fax number is 9230 8060.
When the Supreme Court receives your bail refund letter, you will need to either claim your refund in person at the Supreme Court or elect to collect from your nearest Local Court.
The Supreme Court Bails Matters Counter is located on the 4th floor of the Law Courts Building, Queens Square, Sydney. You will need to bring with you:
- the original receipt for your bail, and
- two forms of identification which show your signature.
If you wish to collect your bail refund from your nearest Local Court, please write to the Bails Clerk, Supreme Court, GPO Box 3, Sydney with your request. You will need to attach a copy of your bail refund letter if you have it. When the Supreme Court has received your request, your bail refund will be sent to the Local Court you have nominated. It will be approximately 7-10 days before the refund is available. When you attend the Local Court you have nominated for collection of your bail refund, you will still need to present the original receipt for your bail and two forms of identification which show your signature.
How do I get a refund of property that has been put up as bail?
Sometimes property can be used as a security in bail undertakings. In these cases, a caveat is taken out on your property. A caveat is a means by which the Court records its interest in your property. To have this notification removed when your matter is finalised, you need to get a bail refund letter from the Court where your charges were finalised. This needs to be sent to the Supreme Court or faxed to it on 9230 8060.
You will need to complete a Withdrawal of Caveat form. These forms can be purchased from a legal stationery outlet or the Supreme Court Bails Matters Counter for a small fee.
You need to then come in person to the Supreme Court Matters Counter. This is located on the 4th floor of the Law Courts Building, Queens Square, Sydney. You will need to bring with you:
- your completed Withdrawal of Caveat form, and
- two forms of identification which show your signature.
A deputy registrar will sign the Withdrawal of Caveat form. All documentation lodged by you in relation to bail will be returned.
You need to take your bail documentation and Withdrawal of Caveat which have been signed by the deputy registrar to the Land Titles Office to have the caveat removed. The Land Titles Office is on the opposite side of Macquarie Street to the Law Courts Building.
What happens if I can't pick up my refund in person?
If you would like another person to collect the refund on your behalf, you will need to provide that person with a letter of authorisation that contains your signature as well as the signature of your representative. Your authorised representative will be required to provide two forms of identification which shows his or her signature.
Need further assistance?
If you are unable to complete the Withdrawal of Caveat form, you may be able to seek assistance from Court staff at the Bail Matters Counter, on Level 4 of the Law Courts Building in Queens Square.
Court staff can help you with any forms you might need to complete but they cannot give you legal advice. If you require any other assistance relating to a bail refund, call the Supreme Court Bails clerk on 02 9230 8045 or 02 9230 8111.
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