What is a Surety?
A surety is a person who agrees to forfeit a sum of money if another person (the accused) does not obey the conditions of bail set by a court, or fails to appear before a court as required.
Responsibilities of a Surety
If you agree to be a surety for someone you are undertaking to the court that you are willing to be responsible for ensuring the accused obeys their bail conditions.
When someone agrees to be a surety they can be required to deposit money with the court immediately, or the court may order that the money be paid only if the accused doesn’t obey any court orders. If the accused breaches a bail condition you may not be able to recover any money that you have paid.
Giving an undertaking to the court is a serious step so you should make sure that you understand the undertaking, and if necessary get legal advice before you agree to give it.
You should be in court each time the accused is bailed to appear.
Forfeiture (Estreatment of Surety)
If a person on bail does not comply with their bail order the prosecutor may apply to the court for an order that you forfeit (lose) the amount of money you agreed to pay when you became a surety for the accused.
If the prosecutor makes an application for forfeiture you will get a copy of the application. You will be given the opportunity to go to court and have your say when a Judge hears the application.
The Judge may order that you forfeit some or all the money you agreed to be liable to pay when you became a surety. You will not get this money back – it will be paid to the State of Tasmania.
If you have not already deposited the money with the court you will have to pay the amount to be forfeited in a similar way to a fine that is ordered to be paid by the court. If the amount is not paid the penalty will be enforced in the same way as a fine.
Will only part or all of the money be forfeited?
This will depend on the circumstances including the evidence on the following points:
- Proof by that the accused breached bail, proof of the recognizance (undertaking) and of service of the application on the surety;
- The extent to which, if at all, the surety was at fault for the breach of bail;
- How soon the breach or expected breach was reported to police and how helpful the surety has been to locate/arrest the accused;
- How soon other relevant bail breaches by the accused have been reported;
- The surety’s financial circumstances – capacity to afford the loss of the money;
- Whether the accused is still at large, having absconded from bail;
- It may be relevant whether the surety was present in court on the appointed date, even if the accused is not.
Powers of a Surety
If a person who has agreed to act as surety believes, on reasonable grounds, that the accused has broken, or is about to break, a condition of bail the surety may arrest that person and take them before the court as soon as practicable.
If the surety is unable to bring the accused before the court themselves they should ask a police officer to perform this task. You will need to show your surety papers to the police. A police officer who is asked by the surety to help the surety arrest the accused MUST do so (S.26(5) of the Bail Act 1994).
Being Released as a Surety
Only the court can release a surety from their obligations. The police do not have the power to do this.
To be released from your obligations you must make an application to the court to be released from the order. The accused must be present for the hearing of that application.
Getting Your Money Back
Unless the Judge ordered otherwise, once the accused’s matters have been finalised (i.e. sentence imposed or charges dismissed) the amount of the surety can be refunded. This will be paid to you by cheque via post or directly deposited to your bank account. You should expect this process to take several working days.
To arrange for your money to be returned, please write to the Registrar of the Supreme Court and provide the receipt or a copy of the receipt you were given when the money was deposited with the court, along with a copy of the relevant sentencing remarks which can be found here: and the following:
- The accused’s name;
- Your name, address and phone number;
- Amount paid as surety;
- Date paid;
- Your bank details – bank; BSB number; account number; account name(s).
If you have any questions about being a surety, please contact the Sheriff’s Office on 6165 7469.