12 Nevertheless, the task of someone wishing to withdraw such a plea is not an easy one. After all, he has solemnly confessed his guilt in open court and would ordinarily have stood by without protest while the Court is, so it is later claimed, deceived by the evidence adduced by the prosecution."
15 In Application of Robert Joseph Dunn [2005] NSWSC 857, Kirby J considered a s.474D application in support of which it was contended that the applicant had been induced to plead guilty by statements made to him by his legal representative concerning the length of sentence which may be imposed. In rejecting this ground, Kirby J repeated and adopted (at paragraph 85) conclusions of the Court of Criminal Appeal (on the applicant's appeal) where the same argument was advanced and rejected by that Court. Kirby J observed, at paragraph 81, that apart from the bare assertion of the applicant in that case that a representation had been made concerning sentence, there was no evidence offered in support of the assertion.
16 Where an appeal against conviction follows a plea of guilty, it is necessary for an appellant to demonstrate that he did not appreciate the nature of the charge to which the plea was entered, that the plea was not a free and voluntary confession, that the plea was not really attributable to a genuine consciousness of guilt, that there was a mistake or other circumstances affecting the integrity of the plea as an admission of guilt, that the plea was induced by threats or other impropriety, that the plea was not made in circumstances suggesting that it was a true admission of guilt or that, at the time the plea was entered, the appellant was not in possession of all the facts and did not entertain a genuine consciousness of guilt: R v Van (2002) 129 A Crim 229 at 238-239 (paragraphs 48-50).
17 A Court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea "is not in truth guilty of the offence": Meissner at 141; Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 at 45 [33]. A person may plead guilty upon grounds which extend beyond that person's belief in his guilt including the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred: Meissner at 157.
18 A person seeking to withdraw a plea of guilty bears the onus of proof upon the application and must establish "a good and substantial reason for the court taking that course": R v Sewell [2001] NSWCCA 299 at paragraph 39; Wong v Director of Public Prosecutions at 46 [39].
19 In Wong v Director of Public Prosecutions, Howie J, at 45-46 [34]-[37], referred to the principles to be applied where application is made to withdraw a plea of guilty which had been entered following the receipt of legal advice:
"There is a discussion as to the concept of a miscarriage of justice in relation to an application to withdraw a plea prior to conviction in Sewell , above. Smart AJ, with whom the other members of the Court agreed, at [39] pointed out the difficulty of trying to fit all the circumstances in which it might be in the interests of justice to permit a person to withdraw a plea of guilty 'within one verbal formula'.