Bail is an agreement to attend court to answer a criminal charge. It can be granted at any stage of criminal proceedings. Often, when bail is granted, a number of conditions are applied to the bail undertaking. These can include surrendering a passport or agreeing to report to police on a regular basis. A well known condition is requiring the deposit of a sum of money or security (i.e. property)with the Court and agreeing to forfeit that money or security if bail is breached. After the Court matter has been finalised, bail will be refunded.
Court staff can help you with any forms you might need to complete but they cannot provide any legal advice. If you require any other assistance relating to a bail refunds, you may contact the Supreme Court Bails registry via email.
For legal advice, speak to a solicitor. The following organisations may, in some circumstances, be able to provide help.
Legal Aid Commission of NSW provides legal aid and other legal services to disadvantaged people. If more than legal advice is needed, they may be able to provide legal representation. Its toll free number for people under 18 is 1800 101 810.
The Aboriginal Legal Service can be contacted on 1800 765 767.
A surety is someone who is often mentioned in a bail undertaking. If the defendant fails to appear, the money or property may be 'forfeited to the court'. Another condition used when defendants apply for bail, is the naming of a surety. A surety is a person who guarantees that the defendant will attend her or his court hearing. The surety is sometimes required to deposit the security as a commitment that the defendant will appear. This security is returned when the hearing has finished. If the defendant does not turn up to court, the surety loses the security and the court may keep it.
To be accepted as a surety, the judge in court or Justice of the Peace (JP) who the bail undertaking is signed in front of must determine that you are of suitable character. This may involve doing a criminal record check.
You will need to prove your identity and residential address to the judge or JP. You will also be asked to provide details of how long you have known the defendant and describe your relationship. For example you might be the defendant's parent, wife or husband.
To be a surety, you need to:
If you believe the defendant is likely to breach the bail undertaking and not turn up to court, you should notify a police officer and apply to the court to be discharged from your obligations as a surety. Your obligations as a surety will continue until an order is made by the court that cancels your surety undertaking. When you are discharged from being a surety the defendant is usually taken back into police custody.
Applying to the court for discharge as a surety involves the following:
If the court is satisfied that the person you are surety for has been served with the Order to Appear, the court may issue a warrant for his or her arrest. The Supreme Court Judge may refuse your application, discharge you from your obligations as a surety, grant new bail conditions or cancel the grant of bail and place the person you were surety for into custody.
If you need more information about this, contact the Supreme Court. Court staff can provide you with the relevant forms, however they cannot:
If you cannot hear very well and need help for a court appearance, please contact the court in advance. Foreign language interpreters will be provided to bail applicants on request. Court staff can make arrangements for sureties requiring the use of foreign language interpreters.
The following documents are to be lodged with the Court registry:
The Certificate of Title i.e. the Deeds.
Written evidence of the value of the property. A letter from a licensed valuer is acceptable and this should include a reference to the property as described in the Certificate of Title, i.e. Folio Identifier No. etc.
An up-to-date title search (i.e. a search performed in the last 24 hours) on the property by an approved information broker.
An acceptable form of mortgage (2 copies) and a caveat (a blank mortgage and caveat can be obtained from a law stationer) completed as per the sample bail forms provided. Please note that the sample caveat form is suitable for land located within the State of New South Wales. If the land is in another Australian State or Territory, you will need to complete the form of caveat issued by the relevant interstate land registry or titles office. You can find a link to each of the 7 offices on this Commonwealth Government website.
The mortgage will not be registered unless the accused does not comply with the bail conditions. The caveat will be signed by the Prothonotary at the Supreme Court and must be registered with NSW Land Registry Services.
The Certificate of Title i.e. the Deeds.
Written evidence of the value of the property. A letter from a licensed valuer is acceptable and this should include a reference to the property as described in the Certificate of Title, i.e. Folio Identifier No. etc.
An acceptable form of mortgage (2 copies) and a caveat (a blank mortgage and caveat can be obtained from a law stationer) completed as per the sample bail forms provided. Please note that the sample caveat form is suitable for land located within the State of New South Wales. If the land is in another Australian State or Territory, you will need to complete the form of caveat issued by the relevant interstate land registry or titles office. You can find a link to each of the 7 offices on this Commonwealth Government web site.
A letter from the lender whose mortgage appears on the Certificate of Title i.e. the Deeds, showing:
Whether the lender consents to a further mortgage being entered into with the Prothonotary; and
The amount still owing on the loan.
The Certificate of Title i.e. the Deeds.
Written evidence of the value of the property. A letter from a licensed valuer is acceptable and this should include a reference to the property as described in the Certificate of Title, i.e. Folio Identifier No. etc.
An up-to-date title search (i.e. a search performed in the last 24 hours) on the property by an approved information broker.
An acceptable form of mortgage (2 copies) and a caveat (a blank mortgage and caveat can be obtained from a law stationer) completed as per the sample bail forms provided. Please note that the sample caveat form is suitable for land located within the State of New South Wales. If the land is in another Australian State or Territory, you will need to complete the form of caveat issued by the relevant interstate land registry or titles office. You can find a link to each of the 7 offices on this Commonwealth Government web site.
A letter from the lender whose mortgage appears on the Certificate of Title i.e. the Deeds, showing:
Whether the lender consents to a further mortgage being entered into with the Prothonotary; and
The amount still owing on the loan.
An irrevocable authority signed by the borrower(s) and lodged with the bank/building society directing that lender to hand both the Certificate of the Title and a Discharge of Mortgage (PDF, 218.1 KB) in registerable form to the Prothonotary.
A copy of the caveat so that the reason for the caveat and the value of the interest claimed by the caveator can be ascertained.
Should the person who placed the caveat on the title no longer claim to have an interest in the property then a Withdrawal of Caveat should be obtained, signed by that person and lodged at the Court.
Frequently asked questions
If your bail agreement includes the deposit of money as a condition, it will be refunded by way of an electronic funds transfer (EFT) to a nominated banking institution. This is irrespective of whether the original Bail deposit was in the form of cash.
At the conclusion of the criminal case or where bail has been revoked, it is possible to seek a refund of the money deposited that was lodged as security by contacting the court registry where the matter was dealt with (even if the money was deposited at the Supreme Court registry). You should speak to that registry about any procedures they have regarding the refunds.
Otherwise, if the refund is being sought from the Supreme Court, an Application for Bail Refund Form should be completed and two forms of ID provided to confirm the identity of the person that the refund is to be made to.
The refund will be returned via electronic funds transfer (EFT).
It is possible to seek to have the money paid to a third party (i.e. a solicitor) and a letter of authority should be included with the application that details the details of the solicitor's trust fund account. Those funds will only be electronically transferred.
Sometimes property can be used as a security in bail undertakings where the Court has ordered that appropriate security be deposited. In these cases, a caveat is taken out on the property.
A caveat is a means by which the Court records its interest in the property.
To have this notification removed when your matter is finalised or where circumstances have changed that allows for the property to be returned, you need to obtain and complete a Withdrawal of Caveat form. This form can be found on the NSW Land Registry Services website.
2. You need to visit the Supreme Court
Attend in person to the Registry of the Supreme Court (Level 5, 184 Phillip Street, Sydney). You will need to bring:
If completed correctly, a deputy registrar will sign the Withdrawal of Caveat form. All documentation lodged by you in relation to the property will also be returned.
3. You will need the caveat removed at the NSW Land Registry Services Office
The completed Withdrawal of Caveat Form is to be lodged at the NSW Land Registry Services (1 Prince Albert Road, Queens Square, Sydney).
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