A successful police appeal in Losi Filipo's case could see it sent back to the District Court for further consideration, the Criminal Bar Association says.
Losi Filipo Photo: PHOTOSPORT
The Wellington District Court discharged the former Wellington Lions player without conviction for assaulting four people, on the grounds a conviction would jeopardise his rugby career.
The Solicitor-General has given the police permission to seek a High Court appeal against that decision.
Otago University law professor Andrew Geddis has suggested that could set a precedent for District Court judges, but Criminal Bar Association vice-president Len Andersen said that was not necessarily so.
"If the High Court were to say that loss of job was not the sort of circumstances in which a discharge could be given, that'd influence applications that are currently being made, because that, after all, is one of the reasons people apply for a discharge without conviction.
"But I find it difficult to think the court would impose such a general rule because each case is so fact-specific."
Mr Andersen said the provision to discharge without conviction was part of the law for a good reason.
"It is an honour system whereby [in the case of] somebody who commits an offence but shouldn't be convicted, the charge can both be found to be proved and other factors can be taken into account in not entering conviction."
While Filipo was discharged without conviction, he was sentenced to carry out 150 hours community work and to pay $1000 reparation.
Mr Andersen said similar outcomes sometimes occurred in other cases, including drink-driving.
"Some people are discharged without conviction for drink-driving but they are still disqualified and may have to pay [a fine]."
He said if the High Court appeal was successful the case could be sent back to the District Court for re-sentencing.
In that case, given Filipo pleaded guilty after a sentencing indication, it would be open to him to seek to vacate his guilty plea and seek a trial instead.
Timeline
October 2015 - Losi Filipo, then 17, and his older brother were charged in relation to assaults on two men and two women early on Sunday 11 October 2015. His brother, who had previous convictions, was later convicted, fined and placed on supervision.
15 August 2016 - Filipo discharged without conviction by Judge Bruce Davidson, following a sentencing indication hearing. He was ordered to do community work and pay reparation.
26 September 2016 - Details of the case were aired in the media. Solicitor-General Una Jagose became aware of the case and, exercising her own independent powers, decided it was an appropriate case for her to take a closer look at.
29 September 2016 - Crown Law announced approval had been given for the police to seek leave to appeal Judge Davidson's decision in the High Court and an application to do so had been filed.