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BAIL ACT 1977 - SECT 9

Surety for bail

S. 9(1) amended by No. 9075
s. 5(2).

    (1)     Every surety to an undertaking of bail shall be a person who has attained the age of eighteen years who is not under any disability in law and is worth not less than the amount of the bail in real or personal property or both.

S. 9(2) amended by No. 68/2009 s. 97(Sch. item 11.1).

    (2)     Where an accused is required to provide a surety or sureties regard may be had in considering the suitability of a proposed surety to the following in addition to any other relevant matters—

        (a)     the surety's financial resources;

        (b)     his character and any previous convictions; and

        (c)     his proximity (whether in point of kinship place of residence or otherwise) to the person for whom he is to be surety.

S. 9(2A) inserted by No. 70/2010 s. 10(1).

    (2A)     If an objection to a proposed surety is raised, the suitability of the proposed surety is to be determined by a magistrate or judge.

S. 9(3) substituted by No. 9158
s. 3(a), amended by No. 68/2009 s. 97(Sch. item 11.1).

    (3)     Before admitting an accused to bail with a surety or sureties the court or other person authorized by section 27 shall—

        (a)     be satisfied of the sufficiency of the means of the surety or sureties and for this purpose may require the surety or sureties (as the case may be) to—

              (i)     lodge in cash the amount of the bail; or

S. 9(3)(a)(ii) amended by Nos 51/1989
s. 142(e), 11/2001 s. 3(Sch. item 5), substituted by No. 70/2010 s. 10(2).

              (ii)     lodge a document that is evidence of the ownership and the value of property or any other asset to the amount of the bail; and

Note

Examples of documents that may be required are a copy of a certificate of title for the property or a search of the title of the land, a current rate notice that includes a valuation of the property, an independent valuation of the property or a bank statement of a mortgage account in relation to the property.

S. 9(3)(b) amended by No. 84/1997
s. 5(1), substituted by No. 70/2010 s. 10(3).

        (b)     require the surety or sureties to make before it or him (as the case may be) an affidavit of justification for bail; and

S. 9(3)(c) inserted by No. 70/2010 s. 10(3).

        (c)     require the surety or sureties to sign the undertaking of bail.

S. 9(3A) inserted by No. 84/1997
s. 5(2), amended by No. 69/2009 s. 54(Sch. Pt 2 item 6), substituted by No. 70/2010 s. 10(4).

    (3A)     For the purposes of this section—

        (a)     a surety may appear before a court within the meaning of section 3(1) of the Evidence (Miscellaneous Provisions) Act 1958 by audio visual link or audio link in accordance with Part IIA of that Act; or

        (b)     a surety may give information to any other person authorised by section 27 by audio visual link or audio link within the meaning of section 42C of that Act.

S. 9(3B) inserted by No. 84/1997
s. 5(2), amended by No. 68/2009 s. 97(Sch. item 11.1), substituted by No. 70/2010 s. 10(4).

    (3B)     If an audio visual link or an audio link is used as provided in subsection (3A)—

        (a)     the undertaking of bail may be constituted by—

              (i)     the undertaking signed by the accused; and

              (ii)     a copy of the undertaking signed by the accused which is transmitted to the surety by any means and signed by the surety; and

              (iii)     a copy of the document referred to in subparagraph (ii) which is transmitted back to the court or other person authorised by section 27 who is admitting the accused to bail;

        (b)     the affidavit of justification for bail may be constituted by—

              (i)     the affidavit of the surety sworn before any person authorised by Part IV of the Evidence (Miscellaneous Provisions) Act 1958 to take affidavits; and

              (ii)     a copy of that sworn affidavit which is transmitted to the court or other person authorised by section 27 who is admitting the accused to bail.

S. 9(3C) inserted by No. 70/2010 s. 10(4).

    (3C)     The court or other person authorised by section 27 may act on a copy of a document which is transmitted in accordance with subsection (3B).

S. 9(3D) inserted by No. 70/2010 s. 10(4).

    (3D)     A surety who under subsection (3B)—

        (a)     signs a copy of an undertaking of bail; or

        (b)     transmits a copy of a sworn affidavit of justification for bail—

without delay must send the signed copy of the undertaking or the original sworn affidavit (as the case may be) to the court or other person authorised by section 27 who admitted the accused to bail.

    (4)     Where a surety desires so to do he may make a declaration of justification instead of an affidavit of justification.

S. 9(5) amended by No. 9158
s. 3(b)(i).

    (5)     A court or other person—

S. 9(5)(a) amended by No. 9158
s. 3(b)(ii).

        (a)     before which or whom an affidavit of justification is made may administer an oath to the deponent and shall ask any questions which are required by any Act or law to be asked in the circumstances or which appear to it or him to be necessary; or

S. 9(5)(b) amended by No. 9158
s. 3(b)(iii).

        (b)     before which or whom a declaration of justification is made may take the declaration and shall ask any questions which are required by any Act or law to be asked in the circumstances or which appear to it or him to be necessary.

S. 9(6) amended by No. 68/2009 s. 97(Sch. item 11.1).

    (6)     Where it appears to a court that a surety for bail has sworn an affidavit of justification or made a declaration of justification which he knew to be false in a material particular the court may declare the bail to be forfeited and issue its warrant for the apprehension of the accused.

S. 9(7) inserted by No. 9158
s. 3(c), substituted by No. 70/2010 s. 10(5).

    (7)     If a surety has lodged a document that is evidence of ownership of property or any other asset under subsection (3), the surety may lodge in cash the amount of the bail and receive the document in return.

S. 9(7A) inserted by No. 70/2010 s. 10(5).

    (7A)     If a surety lodges cash under subsection (7), the affidavit of justification of bail made by the surety must be endorsed to the effect that the type of security has been changed.

S. 9(8) inserted by No. 9158
s. 3(c).

    (8)     Where a surety has pursuant to this section lodged in cash the amount of the bail the court or person with whom the cash is lodged shall issue a receipt for the money.

No. 6231
s. 460.



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