| Bail is the release from the custody of police or | | | | the Crown Proceedings Act 1958 that the amount |
| prison officers of someone who is charged with | | | | of the bail be forfeited and the amount |
| an offence. The release is subject to an | | | | undertaken by the surety be paid to the Crown. |
| undertaking that the accused person will appear at | | | | Where an order is made, a surety may apply to |
| court to answer the charge in the future. | | | | the court that made the original order to vary or |
| Bail is like a contract. The person who does not | | | | rescind such order on the ground that it would be |
| appear when on bail can be charged with a | | | | unjust to require the surety to pay the amount |
| criminal offence. | | | | undertaken to be paid having regard to all the |
| Bail takes many forms. | | | | circumstances of the case. The court is |
| Most people are bailed "on their own undertaking". | | | | empowered to vary or rescind the order and |
| This does not involve any money or property to | | | | cancel any warrant for forfeiture of surety |
| be surrendered. | | | | security. |
| On other occasions, the accused person will be | | | | There are two leading Victorian decisions on the |
| required to deposit a sum of money. This is | | | | power of the Crown to seek forfeiture of surety |
| generally done by persons other than the | | | | security. These cases are Re Condon (September |
| accused. This person is called a surety. A surety is | | | | 1972) and Re Wilkinson (September 1981). Both |
| a person who guarantees, by putting up security, | | | | were decisions of Crockett, J., of the Supreme |
| usually by way of a sum of money, that the | | | | Court of Victoria. |
| accused person will appear at the date and place | | | | Both decisions stand for the following propositions: |
| specified in the bail bond. If the accused does not | | | | 1 The surety seeking relief must be a "genuine |
| turn up at court to answer the bail, the amount | | | | surety" - in other words, must not be a front for |
| put up may be forfeited to the Crown. | | | | the person who is really supplying the funds for |
| Sureties place their property at considerable risk. | | | | the bail bond. |
| For this reason, Section 23 of the Bail Act 1977 | | | | 2 The surety must take all reasonable steps to |
| allows sureties to apply to the court to which the | | | | secure the attendance of the accused in all the |
| accused person would be required to surrender | | | | circumstances. In determining whether or not |
| himself or herself under the bail conditions to apply | | | | reasonable steps are taken, the surety must take |
| to discharge the surety from further liability under | | | | positive action and will not succeed if he or she |
| the bail bond. | | | | merely relies upon a belief, however well-founded, |
| The accused person has the right to be brought | | | | that the accused will in fact answer bail. Even |
| before the court when the surety makes | | | | where the surety can establish that he or she did |
| application. The accused person may be prepared | | | | take all reasonable steps to ensure the |
| to relinquish his or her liberty and remain in prison | | | | attendance of the accused at his or her trial, the |
| on remand until the date of the trial. | | | | surety must also establish that it would be unjust |
| Alternatively, the court may ask whether the | | | | in all the circumstances not to vary or rescind the |
| accused is able to find another surety or other | | | | order forfeiting the bail security. |
| security for his or her appearance at the trial | | | | 3 The surety must establish clear evidence of |
| date. If this is not possible, the likely result is that | | | | financial hardship if the surety is forfeited. Mere |
| the accused will be committed to prison on | | | | economic inconvenience is insufficient. |
| remand. | | | | 4 The surety must apply by way of summons |
| There is a procedurewhere the accused | | | | which should be served on the Police Informant |
| voluntarily agrees to be placed in prison on | | | | and on the Crown Prosecutor (if known). The |
| remand pending trial or is unable to find an | | | | summons should be supported by an affidavit. |
| alternative surety. | | | | The surety should expect to be cross-examined |
| The procedure is different where the accused has | | | | and should be available to give evidence. |
| absconded and fails to surrender himself or | | | | Independent evidence of financial hardship in the |
| herself for trial. | | | | form of affidavit or viva voce from family |
| In these circumstances, the Crown or prosecuting | | | | members or close relatives and friends should also |
| authority may seek an order under Section 6 of | | | | be considered. |