Related Pages
- About Affidavits
- Affidavit in Support of Application for Bail Template
- Bail Applications
- Before and After an Application for Leave to Appeal a Decision of Victorian Civil and Administrative Tribunal
- Court Fees
- Exhibits to an Affidavit
- Form 6-2H Application for Extension of Time to File\Serve Notice of Appeal
- Guide to Preparing and Formatting an Affidavit
- Preparing an Application for Bail
- Swearing or Affirming an Affidavit
- What is an Affidavit and What is its Purpose
Related Publications
- Affidavit in Support of Application for Bail Guide
- Affidavit in Support of having Default Judgment Set Aside Guide
- Checklist for Preparing and Filing an Affidavit
- SUPREME - Civil Litigation Flowchart (PDF)
- Form 43A Certificate Identifying Exhibit Guide
- Form 46A Guide
- Form 5A Writ Guide
- Form 8A Notice of Appearance Guide
- Important Information for People in a Civil Dispute
- Notice of Appeal Against Order of Master Guide
- Notice of Appeal Guide
- Notice of Change of Address for Service Guide
- Notice of Discontinuance Guide
- Notice of Intention to make Application for Bail Guide
- Summons for Taxation of Costs Guide
- Summons to have Default Judgment Set Aside Guide
Web Links and Legislation
When Bail is Granted and Surety
Conditions of bail
If the application for bail is successful, bail will normally be entered at the Supreme Court by the Prothonotary, Deputy Prothonotary or a Bail Justice.
If bail is granted by the court, an undertaking as to bail will need to be given in accordance with either Forms 1 or 2 Bail Regulations 2003.
A number of conditions may be applied in an undertaking. These could include surrendering a passport, agreeing to regularly report to the police or abiding by a curfew (not being away from home after a certain time of day). Another condition may require a deposit of money or the offering of property as security to the court. This will be done through a surety. If the surety or sureties cannot attend at the Supreme Court on the day bail is granted, bail will be entered from the prison, not from the Supreme Court.
Surety
A surety is a person who provides security to the court that the person who has applied for bail will appear in court on the next hearing date. Section 9 of the Bail Act 1977 describes who can be a surety as to bail and what matters the court may have regard to in respect of the suitability of the proposed surety.
In R v Mokbel & Mokbel [2006] VSC 158, the importance of the undertaking by a surety was highlighted in that "the surety undertakes to ensure" that the accused honours the undertaking to the court to appear at trial and to attend every day of the trial. If a surety has concerns about non-compliance with an undertaking (s.21 Bail Act 1977) then the surety is obliged to inform the appropriate authorities and indeed can be relieved of any obligations as a surety.
According to legislation, a surety shall be a person who:
- has attained the age of eighteen years
- is not under a disability in law
- is worth not less than the amount of bail in real or personal property or both.
The court may consider the proposed surety's:
- financial situation
- character, including any previous convictions
- proximity (of residence or kinship) to the person who is applying for bail.
Before a successful bail applicant can be released from custody, the surety must deposit the amount set by the court with the Supreme Court Registry (Prothonotary's Office), or else prove to the Supreme Court that the surety possesses assets to the value of the security required by the court.
Security in the form of money can be paid by:
- bank cheque or
- solicitor's trust account cheque.
Where the security involves property, all owners of the property must come to the Prothonotary's Office to give consent to the property being offered as security. They must also bring the certificate of title (or copy), with the most recent copies of a mortgage balance (bank statement if applicable) and rates' notice.
Sureties must:
- attend the Supreme Court Registry (Prothonotary's Office) on the day that bail is granted so that the applicant can be released on that day
- sign the applicant's undertaking in accordance with either Form 1 or 2 of the Bail Regulations 2003, and to complete an Affidavit of Justification by Surety to Undertaking (Form 5 Bail Regulations 2003)
- complete Joint Owners Consent When Property Used as Security for Bail (where joint owners offer property as security) - both these documents are available at the Supreme Court Registry.