Victorian Consolidated Legislation

Crown Proceedings Act 1958 - SECT 6

Breach of bail

6. Breach of bail









(1) Where a court is satisfied that a person has failed to observe a condition
of bail the court shall declare the bail to be forfeited and shall order that
the amount undertaken by the surety or sureties to be paid to Her Majesty in
the event of such a breach be paid to the proper officer of the court
forthwith or within such time as the court allows and that in default of
payment of that amount in accordance with the order that the amount be
obtained by seizing and selling the property of the surety or sureties and in
default, in whole or in part, that the surety or sureties be imprisoned for
the term (not exceeding two years) fixed by the order.

(1A) Where a court makes an order under subsection (1) and the surety has
pursuant to section 9(3) of the Bail Act 1977 lodged in cash the amount of the
bail or lodged by way of security a pass-book, stock card or other document
for operating an account the court shall order that the cash lodged be
forfeited or that the amount of the bail be withdrawn from the account (as the
case may be) and that the amount of the bail be paid to the proper officer of
the court.

(2) Every order under subsection (1) shall be in the prescribed form, shall be
signed by the judge, or magistrate presiding and shall be delivered to the
proper officer of the court.

(3) Where a court makes an order under subsection (1) in the absence of a
surety or sureties the proper officer of the court shall send by post
addressed to each of the absent sureties at his address shown in the
undertaking of bail a notice in writing signed by the proper officer of the
court setting forth-

   (a)  particulars of the order made against the surety; and

   (b)  a statement that a warrant of seizure and sale or a warrant to seize
        property will issue after the expiration of 28 days unless-

   (i)  the amount due under the order is paid;

   (ii) an order is made for the payment of the amount by instalments; or

   (iii) application is made under subsection (4) for rescission or variation
        of the order.

(4) Where bail is declared to be forfeited under subsection (1) any surety may
at any time within 28 days after the making of the order or, if the order was
made in the absence of the surety, within 28 days after the order first comes
to his notice apply to the Court that made the order to vary or rescind the
order on the ground that it would be unjust to require him to pay the amount
undertaken to be paid having regard to all the circumstances of the case and
the court may vary or rescind the order and cancel any warrant issued in the
case under the provisions of this section before the warrant so issued is
executed.

(5) Every application under subsection (4) shall be in writing in the
prescribed form signed by the person making the application, shall set forth
the grounds of the application and shall be lodged with the proper officer of
the court a reasonable time in the circumstances before the hearing of the
application.

(6) Not less than 28 days before the hearing of an application under
subsection (4) the applicant shall serve or cause to be served personally or
by post-

   (a)  on the informant or complainant; or

   (b)  where the informant is a member of the police force-on the officer in
        charge of the police station nearest to the court where the
        application is to be heard; or

   (c)  in the case of a presentment or an appeal-the Director of Public
        Prosecutions-

a true copy of the application lodged with the proper officer of the court.

(7) At the time after the lodging of an application under subsection (4) the
applicant may apply ex parte to a court for a stay of proceedings in the
matter and upon any such application the court may direct the return of any
warrant unexecuted or may stay the issue or execution of a warrant pending the
determination of the application.



(8) The Governor in Council may make regulations prescribing forms for the
purposes of this section.

(9) Every warrant of seizure and sale and warrant to seize property of a
surety to forfeited bail shall be in or to the effect of the prescribed form
and every warrant to imprison a surety shall be in or to the effect of the
prescribed form.





(10) The proper officer of the court shall attach or cause to be attached to
every warrant to imprison issued under this section a notice in the prescribed
form addressed to the member of the police force executing the warrant
requiring such member to deliver to the surety before the execution of the
warrant a statement in writing in the prescribed form with respect to the
provisions of subsection (4) and shall allow the surety reasonable time and
opportunity to make application thereunder should he so desire.

(11) Any member of the police force to whom a warrant under this section is
directed shall execute the warrant according to its tenor unless the amount of
money specified in the warrant be sooner paid and the officer in charge of the
prison shall receive into his custody any person referred to in a warrant to
imprison and safely keep him for the period stated in the warrant unless the
amount be sooner paid or unless he is otherwise removed or discharged from
custody by due course of law.

(12) The provisions of the Magistrates' Court Act 1989 with respect to
warrants and to the payment or part payment of moneys shall, so far as those
provisions are applicable and with such modifications as are necessary, extend
and apply with respect to the recovery of moneys payable under bail
undertakings and in particular with the following modifications, namely-

   (a)  any reference in those provisions to a warrant shall be read and
        construed as if it were a reference to a warrant issued for the
        purposes of this section;





   (b)  any reference in those provisions to a fine or other sum adjudged to
        be paid under a conviction or order of the Magistrates' Court shall be
        read and construed as if it were a reference to an order made for the
        recovery of the moneys payable under forfeited bail;

   (c)  any reference in those provisions to the Magistrates' Court shall be
        read and construed as if it were a reference to a court declaring bail
        to be forfeited;







   (d)  any reference in those provisions to a registrar of the Magistrates'
        Court shall be read and construed as if it included a reference to the
        Prothonotary or the Registrar of the County Court (as the case
        requires).

(13) The officer in charge of a prison shall on receiving payment of moneys
payable under bail declared to be forfeited forthwith pay the amount received
to the proper officer of the court.



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