(f) the plea was unlawfully obtained by fraud and duress.
4 In amplification of these submissions he suggested, at various times during the hearing, that there had been a conspiracy to suppress the evidence of the complainants and to avoid having their evidence tested in court; that it was never shown that the complainants were existing persons; that his legal representatives had deliberately misled Judge Maguire; that his signature to the instructions had been forged by one or other of his legal advisers and that the sentence indication was a "ruse by people in authority to get a matter resolved expeditiously".
5 Critical for this application is the fact that a period of seven and a half years elapsed between the date of conviction and the filing of the appeal, and that during this period an application for leave to appeal against sentence was summarily dismissed for want of prosecution. Additionally there is the circumstance that the sentence has been entirely served.
6 In Regina v Lawrence [1980] 1 NSWLR 122 Nagle CJ at CL and Yeldham J observed at p 148: -
" On many occasions it has been observed by Courts of Criminal Appeal, that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused. See for example R v Sunderland, R v Tyrell, and R v Waterhouse. This Court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice to appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. Certainly, where any considerable delay has occurred, exceptional circumstances will be required before the appeal is permitted to proceed. This was the view expressed by Street CJ in R v Sunderland, and we think it is a proper view." (References ommitted).
7 As Greg James J observed in Regina v Brehoi [1999] NSWCCA 113 the burden which rests upon an applicant in relation to an application of this kind, will be "harder to discharge the longer any suggested matter impugning the integrity of the plea and known to the applicant is allowed to lie.".
8 It is true that s 10(3) of the Criminal Appeal Act confers an unfettered discretion on the Court to extend the time where it is just, under the circumstances, that such an order be made. Inevitably that requires that attention be given to whether or not there is, in the circumstances of the particular case, room for concern that there may have been a miscarriage of justice: see R v Young [1999] NSWCCA 275 per Smart AJ (with whom Studdert and Dunford JJ agreed) at paras 35 to 37 and 48; also see R v O'Donahue (1988) 34 A Crim R 397. This is because the existence of a reasonable misgiving as to whether an appellant received a fair trial according to law, will very often constitute the exceptional circumstance which would overcome the fact of lengthy delay.
9 Also to be taken into account is the well accepted principle of finality, noted in decisions such as Regina v Liberti (1991) 55 A Crim R 120 and KCH [2001] NSWCCA 273 at para 31. Additionally, it is appropriate to have regard to the difficulties which are likely to be occasioned to the Crown and to victims, if a retrial is sought very many years after proceedings were understood to have been brought to a finality, and the appellant has sat by, as he has here, without seeking to enforce rights which he must have known he had.
10 In relation to the principle concerning the regularity of a plea and the duty that rests upon legal practitioners when giving advice to an accused person concerning the offer of a plea of guilty, we can do no better than to adopt the observations of Ipp AJA, with whom Sperling J agreed, in KCH [2001] NSWCCA 273 at paras 33 and 100-101: -
"The law regards the need for a plea of guilty to be freely and voluntarily made as a fundamental element of the administration of justice. Thus, as Brennan, Toohey and McHugh JJ said in Meissner v The Queen (at 142):
" If conduct has the tendency to induce a person to plead guilty when that person would have pleaded not guilty had he or she exercised a free choice in his or her own interests, the actus reus of an attempt to pervert the course of justice is established ".
It follows that legal practitioners who represent accused persons owe a duty to the court not to bring improper pressure to bear on their clients to plead guilty. In particular, that duty would be breached by a practitioner deliberately or negligently giving the client false information that the trial judge had expressed a particular opinion as to the prospects of the client being found guilty. Such a duty is part of the general duty not to corrupt the administration of justice which in turn is derived from the public interest in ensuring that the administration of justice is not subverted or distorted by dishonest or negligent practices."
11 As was additionally said by Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 at 143: -
" Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal proceedings. "
12 Finally, as a matter of clear legal principle, we observe that since it is the appellant who contends that a miscarriage of justice has occurred, he bears the onus of demonstrating that fact: Regina v Boag (1994) 73 A Crim R 35 at 37. To the extent to which this depends upon a resolution of matters of fact, he bears the onus of establishing the necessary facts: Regina v Ross (NSWCCA 20 April 1994).
13 When invited to provide an explanation for the lengthy delay between the date of conviction and the filing of the notice of appeal, the appellant offered several reasons, all of which, in our assessment, were totally unconvincing. None provides any cogent explanation for his delay. First he said that it was due to the fact that he was "a pacifist", and it would have meant giving evidence against other people. Next, he suggested that it may have had something to do with the accumulated effect of three sets of subsequent proceedings brought in the Local Court and by way of appeal in the District Court, in which he had been involved, two of which related to charges involving alleged breaches, on his part, of an Apprehended Violence Order, obtained by a neighbour in late 1996. The bringing of these proceedings in the Local Court he asserted amounted to "consistent harassment" of him.
14 In this respect, the first conviction was recorded on 17 June 1997, and confirmed on appeal on 19 November 1998. The second conviction was recorded on 24 September 1998 and confirmed on appeal on 31 August 1999. On this occasion there was also a conviction for an offence of common assault. This eventually led to sentences of imprisonment of 6 months and 3 months being imposed, following the refusal of the appellant to enter into a bond to be of good behaviour for a period of 2 years.
15 The third set of proceedings involved a charge of assault of a Crown Prosecutor, for which a conviction was recorded on 3 May 2001 and again, confirmed on appeal, on 10 August 2001. That Crown Prosecutor had appeared in the District Court proceedings of 31 August 1999.