This information is for people who are considering being a surety for an accused who has been granted bail. Click here for more information about Bail.
What is a surety?
A surety is a person who agrees in writing to pay a specific amount of money if the accused (the person charged) fails to comply with their bail undertaking to appear in court. The agreement in writing is called a surety undertaking.
It may be a condition of an accused person's bail that they have someone sign a surety undertaking for them before they are released.
What does it mean to be a surety?
You need to be sure that the accused will attend court before you agree to be a surety. If the accused fails to attend court you will be required to forfeit (pay) the amount of money specified in your surety undertaking.
Can I be a surety?
To be a surety you must be at least 18 years of age and have proof of identification.
You also must show that you have enough assets to cover the amount of the undertaking that has been set. Your assets, after taking away your debts and liabilities, must be worth more than the amount you would have to pay if the accused does not attend court.
It is an offence to make a false statement when applying to become a surety.
What assets can I use to be a surety?
Houses, land and property can be used if you have enough equity in them.
Vehicles, furniture and personal effects may be suitable in some cases. The white goods, furniture or appliances that you use every day are not suitable because the loss of these items could cause you hardship. Tools of work are not suitable for the same reason.
Cash may be suitable but it will have to be deposited with the court.
You must own the assets you want to use to become a surety. Title deeds, mortgage papers, rates notices or bank statements showing mortgage payments help to prove that you own houses or land. For other property, receipts or registration papers will help.
What else will be taken into account?
Other factors which may be considered in determining your suitability to be a surety include:
- your character and past history (eg whether you have a criminal record)
- your relationship with the accused (eg as a relative, someone you live with, whether the accused is pressuring you to act as surety)
- your ability to pay without severe hardship if the accused does not appear in court
- whether you have any outstanding fines.
Can the surety amount be split between two or more sureties?
In some circumstances, the court may allow a surety to be divided between two or more people if one person alone does not have sufficient assets. It is necessary to make a special application to the court to have the surety amount split, and the court must agree to this.
Can anyone else promise to pay the surety for me?
It is an offence for a person to indemnify or agree to indemnify a surety or proposed surety. This means that you cannot enter into an agreement with another person (including the accused) for them to pay the surety amount for you if the accused fails to attend court.
You alone are responsible for the payment of the amount in the surety undertaking if the accused fails to attend court.
Who can approve my surety application?
A justice of the peace, magistrate, judge, court registrar, authorised police officer, judge's associate, person in charge of a prison, or an authorised community services officer if the accused is a child, may approve your surety application.
Justices of the peace are available at most courts, prisons and some police stations. Make sure you telephone before you go to check that someone is there who can consider your surety application.
Alternatively, go to Find a JP to locate a justice of the peace near you.
I live interstate. Can I still apply to be a surety?
Yes you can apply if you are interstate. However, the fact that you are not in close proximity to the accused may make it difficult for you to ensure the accused will attend court. This may be taken into account in determining your application.
To apply to be a surety from interstate, you should contact the Western Australian court where bail is being considered for the accused and follow the directions of that court in relation to signing and submitting the relevant application for surety.
What is a continuing surety?
When you enter into a surety undertaking you must advise the person approving the surety whether you wish to be a continuing surety or a surety only until the next court appearance.
Signing a continuing surety means you are guaranteeing that the accused will turn up for every court appearance until the case is finished. This means you do not have to attend court and re-sign a surety undertaking on every occasion the accused attends court. This is useful where the accused will need to appear in court many times before the case is finished and you are confident they will continue to attend as required.
Alternatively, you can choose to have your surety undertaking extend only to the next court appearance. If the charge is not dealt with on the next court appearance, you or another surety will have to sign an undertaking again before the accused will be released.
What documents must be given to a surety?
You must be given a copy of the surety undertaking, which sets out your obligations in writing. Read it carefully and make sure you fully understand it. If you are unsure, ask for it to be explained to you. You must also be given a form that shows details of the accused's bail.
What are my obligations as a surety?
As a surety, you must ensure the accused attends court.
You must also keep the court informed of any change of your address. Failure to do so is an offence.
You are not liable if the accused fails to comply with any of their other bail conditions. However, if the accused is not complying with their other bail conditions, you should consider whether this means they are unlikely to attend court and whether to withdraw your surety.
How do I withdraw as a surety?
If for any reason you believe the accused will not attend court when required, you can apply to the court to cancel your surety undertaking.
The court will not cancel a surety undertaking unless the accused appears in court on or before the time specified in the accused’s bail undertaking. If the accused will not attend court with you voluntarily, you should consider the following options for getting the accused to court:
- Notify the police that you wish to withdraw your surety. The police can arrest the accused and bring them to court if they are satisfied that there are reasonable grounds to believe that the accused is not likely to comply with their bail undertaking, or has breached bail or home detention conditions.
- Take the accused and deliver them into police custody yourself. You must believe that the accused is not likely to comply with their bail undertaking, or has breached bail or home detention conditions.
- Attend court well before the date when the accused is due to appear and apply for cancellation of the surety undertaking. The court can then issue a warrant for the accused’s arrest.
If you wish to withdraw as surety in the Magistrates Court you should complete a form called Application to Cancel Surety available from the Magistrates Court of WA website.
Importantly, your obligations will continue until the accused is brought before the court and an order is made cancelling the surety undertaking.
What if the accused is genuinely unable to go to court?
If the accused misses a court date for any reason, they should attend court as soon as possible afterwards and hand themselves in to the police at the court.
The accused should bring any documents that explain and support why they didn't attend court. They may not be charged with breach of bail if they have a reasonable excuse for not attending and attend as soon as possible afterwards.
Click here for more information about Breach of bail.
What happens to the surety if the accused fails to go to court?
If the accused does not appear in court and does not have a reasonable excuse for failing to appear, you may be required to attend court to show why you should not be required to forfeit (pay) the surety amount.
Generally, you will have to pay the surety amount unless you can show that your circumstances have changed and it would cause you excessive hardship. This can be difficult to prove.
You should seek legal advice if you believe you have a reason for not paying the surety amount.
Where can I get legal advice?
If you need advice about becoming a surety, it is important to seek advice from a lawyer who is independent of the accused. The lawyer representing the accused will usually be unable to advise you because of a conflict of interest. A duty lawyer from Legal Aid WA may be able to assist you, as long as they are not representing the accused.
If you are appearing in court because you have been told you must pay the surety amount, you can get advice from a duty lawyer, however the duty lawyer will not be able to represent you in court.
Click here for information about Legal Aid WA’s Duty Lawyer Service.
Where can I get more information?
There is further information about bail and surety obligations on the Magistrates Court of WA website.
See Court Locations on the Department of Justice website if you need to contact a particular court.
See other Legal Aid WA webpages under the following headings:
Contact the Legal Aid WA Infoline on 1300 650 579 for further information and referral.
Last reviewed: 02/08/2017