When Can Someone Who Has Posted Bail For An Accused Person Recover The Amount Of The Surety? (victor
By Michael Pickering - LAC Lawyers
Bail is the release from the custody of police or prison officers of someone who is charged with an offence. The release is subject to an undertaking that the accused person will appear at court to answer the charge in the future.

Bail is like a contract. The person who does not appear when on bail can be charged with a criminal offence.

Bail takes many forms.

Most people are bailed "on their own undertaking". This does not involve any money or property to be surrendered.

On other occasions, the accused person will be required to deposit a sum of money. This is generally done by persons other than the accused. This person is called a surety. A surety is a person who guarantees, by putting up security, usually by way of a sum of money, that the accused person will appear at the date and place specified in the bail bond. If the accused does not turn up at court to answer the bail, the amount put up may be forfeited to the Crown.

Sureties place their property at considerable risk. For this reason, Section 23 of the Bail Act 1977 allows sureties to apply to the court to which the accused person would be required to surrender himself or herself under the bail conditions to apply to discharge the surety from further liability under the bail bond.

The accused person has the right to be brought before the court when the surety makes application. The accused person may be prepared to relinquish his or her liberty and remain in prison on remand until the date of the trial.

Alternatively, the court may ask whether the accused is able to find another surety or other security for his or her appearance at the trial date. If this is not possible, the likely result is that the accused will be committed to prison on remand.

There is a procedurewhere the accused voluntarily agrees to be placed in prison on remand pending trial or is unable to find an alternative surety.

The procedure is different where the accused has absconded and fails to surrender himself or herself for trial.

In these circumstances, the Crown or prosecuting authority may seek an order under Section 6 of the Crown Proceedings Act 1958 that the amount of the bail be forfeited and the amount undertaken by the surety be paid to the Crown.

Where an order is made, a surety may apply to the court that made the original order to vary or rescind such order on the ground that it would be unjust to require the surety to pay the amount undertaken to be paid having regard to all the circumstances of the case. The court is empowered to vary or rescind the order and cancel any warrant for forfeiture of surety security.

There are two leading Victorian decisions on the power of the Crown to seek forfeiture of surety security. These cases are Re Condon (September 1972) and Re Wilkinson (September 1981). Both were decisions of Crockett, J., of the Supreme Court of Victoria.

Both decisions stand for the following propositions:

1 The surety seeking relief must be a "genuine surety" - in other words, must not be a front for the person who is really supplying the funds for the bail bond.

2 The surety must take all reasonable steps to secure the attendance of the accused in all the circumstances. In determining whether or not reasonable steps are taken, the surety must take positive action and will not succeed if he or she merely relies upon a belief, however well-founded, that the accused will in fact answer bail. Even where the surety can establish that he or she did take all reasonable steps to ensure the attendance of the accused at his or her trial, the surety must also establish that it would be unjust in all the circumstances not to vary or rescind the order forfeiting the bail security.

3 The surety must establish clear evidence of financial hardship if the surety is forfeited. Mere economic inconvenience is insufficient.

4 The surety must apply by way of summons which should be served on the Police Informant and on the Crown Prosecutor (if known). The summons should be supported by an affidavit. The surety should expect to be cross-examined and should be available to give evidence. Independent evidence of financial hardship in the form of affidavit or viva voce from family members or close relatives and friends should also be considered.

Article Source: http://www.article-matrix.com

Michael Pickering is a solicitor employed at LAC Criminal Lawyers Melbourne. He has nearly 20 years experience as a lawyer.