What is Surety?

When an application for bail is made the court may consider the imposition or a Surety condition.

A surety is actually a person. That is a person who will also sign the bail undertaking as a Guarantor for the defendant’s appearance before a court. Usually, it is a family member or a friend who is willing to make a solemn promise to the court that if the defendant fails to appear before the court, they will be responsible in the amount of the surety. The amount of the surety is a dollar amount, say $50,000, that the surety will have to pay to the court if the defendant fails to appear.

In order to qualify as a surety under s21 of the Bail Act 1980 (View – Queensland Legislation – Queensland Government) the person must be a person who —

(a) has attained the age of 18 years; and

(b) has not been convicted of an indictable offence; and

(c) is not—

(i) an involuntary patient under the Mental Health Act 2016 who is, or is liable to be, detained in an authorised mental health service under that Act; or

(ii) a forensic disability client within the meaning of the Forensic Disability Act 2011 ; or

(iii) a person for whom a guardian or administrator has been appointed under the Guardianship and Administration Act 2000 ; and

(d) is not an insolvent under administration; and

(e) has not been, and is not likely to be, charged; and

(f) is worth not less than the amount of bail in real or personal property.

In deciding whether to accept someone as a surety the court will take into account the person’s financial resources, the person’s character and antecedents, the person’s proximity to the defendant (whether by kinship, place of residence or otherwise), and will not accept a person as a surety if it appears that it would be ruinous or injurious to the person or the person’s family if the undertaking were forfeited.

The usual process is that, if bail is granted, the proposed surety attends the registry of the courthouse to sign what is called the “affidavit of justification” that addresses the above issues. The surety does not have to pay the amount of the surety at the time but must demonstrate that they are worth the amount of the surety in assets. Sometimes this can be done by paying the amount into court. If accepted the surety signed the undertaking and the defendant is released.

Whilst awaiting trial of the defendant, the surety is able to bring an application to the court to be discharged from their obligations, provided the defendant hasn’t already broken their bail conditions or failed to appear in court. If the court discharges the surety the defendant will then be remanded in custody.

If the defendant fails to appear in court and the surety had not already been discharged, then the prosecution can apply to the court for an order that the surety pay to the State the amount of the surety.

Becoming a surety is a serious matter and independent legal advice should be obtained.