A person may be released on bail on his or her own undertaking (that is, the person signs the agreement and personally guarantees to appear and comply with the conditions of the bail agreement). Sometimes, a guarantor is required.
A guarantor enters into a separate agreement known as a guarantee of bail, in which he or she guarantees that the person who is released on bail will comply with the bail agreement or with specified conditions of the bail agreement, and may be required to forfeit a sum of money if the person on bail fails to comply with a term or condition of the bail agreement [s 7 Bail Act 1985 (SA)].
A guarantor must be at least 18 years of age [s 7(6)].
If a guarantor knows, or reasonably suspects, the person has breached a term or condition of the bail agreement the guarantor must take reasonable steps to notify the police or otherwise faces a fine in addition to forfeiting a sum of money [s 17A].
A guarantee of bail is a serious, binding obligation and a guarantor will only be released from an obligation in extreme circumstances. A guarantor can apply to the Court, to vary the conditions of the guarantee of bail or to revoke it at any time [s 7(4)].
[See Joint Criminal Rules 2022 (SA) Form 26 Guarantee of Bail for the prescribed form of a guarantee].
| NO OBLIGATION TO ADVISE GUARANTORS |
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| There is no obligation upon a duty solicitor to provide guarantors with legal advice about the consequences a guarantor faces should the applicant fail to abide by all of the conditions of their bail. The duty solicitor can provide a general run down of their obligations and suggest they seek independent legal advice. |
| PENDING CRIMINAL MATTERS |
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Some Magistrates will check the names of potential guarantors against the court database for any pending criminal matters. It is useful to take instructions about the proposed guarantor and whether they have any pending criminal matters before you appear in court. Whether enquiries about the character and antecedents of a guarantor to assess their ability to comply with conditions of the guarantee are within the power of the Court is unclear and it is possible the principles in R v Barrett (1985) 37 SASR 512 still apply. |
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