Guarantees and deposits

31 Jan

NOTE: The law in this chapter is current as at 2 December 2024. Further changes to the bail laws are anticipated throughout 2025 (introduced by the Youth Justice Act 2024 (Vic).

Bail conditions may include a person being released upon entering into an undertaking with a guarantee or making a deposit (Bail Act s 5(2)(c)).

A bail guarantor is another person who is bound to ensure that an accused surrenders themselves into custody in accordance with the conditions of bail. A bail guarantor may also have to put down a deposit of money or other security (e.g. property) to enable an accused to be released on bail. A bail guarantor may have to appear at court or give information and undertakings via an audiovisual link (s 9(3A)). If an accused fails to appear at court in accordance with the bail conditions, the bail guarantor is liable to forfeit their deposit or they become indebted to the Crown for the deposit amount.
Any person over the age of 18 years – who is not under any legal disability (e.g. not a person of unsound mind), and who has money or assets not less than the value of the bail – may be a bail guarantor. This does not include a corporation or other association.
The bail decision-maker has a discretion as to whether to accept a person as a bail guarantor (Bail Act s 9).
Matters taken into account to determine whether a person is a suitable bail guarantor include:
- the financial resources of the proposed bail guarantor;
- the character and prior convictions of the proposed bail guarantor; and
- the proximity (by reason of kinship, residence or other relationship) between the accused and the proposed bail guarantor (presumably, the closer the proximity, the greater the opportunities for the bail guarantor to exercise control over the accused and an accused’s willingness to abide by any bail order).
Before admitting a person to bail with a guarantee, the bail decision-maker must be satisfied of the means of the bail guarantor. This will be done by asking on oath any questions thought necessary, and by requiring the proposed bail guarantor to sign an affidavit.
When a person has been admitted to bail with a guarantee, the obligations of the bail guarantor continue until:
- the death of the bail guarantor (Bail Act s 20);
- the accused appears at court in accordance with the undertaking;
- if the accused appears at court in accordance with the undertaking and the matter is postponed or adjourned, until the accused again appears at court in accordance with the extended undertaking for bail (except where the bail guarantor elects at the initial granting of bail not to be liable on any extension of bail without further consent) (s 16);
- the bail guarantor applies to the police or court that granted the bail for a discharge of liability (this application may be made by a bail guarantor at any time); in such cases, the accused is brought before the court and has to find another bail guarantor if they are to be released again on bail (s 23); or
- the accused is remanded in custody pending hearing of the charge (s 19).
It is an offence for a person to indemnify (i.e. guarantee) a bail guarantor, or to indemnify any liability that the bail guarantor might incur arising from their obligations. The other person and the bail guarantor may be guilty of this offence, which carries a fine of 15 penalty units or three months’ imprisonment (Bail Act s 31).