The judge who discharged rugby player Losi Filipo without conviction may be facing a public backlash for his decision.

But a former district court judge said the decision was based on law and a simple legal test that allowed Judge Bruce Davidson to come to his particular ruling.

Retired Judge Dr David Harvey, now a lecturer at the University of Auckland's Faculty of Law, said he had read the judgment and was not going to question Judge Davidson's ruling.

"Once you read his reasoning, then a lot of things become clear. It would be wrong of me and indeed it would be wrong of anybody to second-guess the judge, because he had the opportunity to hear the evidence and make the evaluation and step through the process.


"I don't know what I'd do, because I don't have all of the information that he has."

In his ruling, Judge Davidson acknowledges he can discharge a defendant without conviction if he is satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence.

"In my view, there are real and significant consequences of conviction for the defendant. His chosen career could well be outside his purview if convicted. There is no difference in assessing this than assessing someone at the beginning of any other form of career.''

Harvey said despite the public outcry over Filipo's case, judges had to think independently when making their decisions.

"The other thing that's very, very important - and this goes back a long, long way - is that judges have to be independent. They have to be independent of stress and so forth.

"If judges were to sort of say: 'Oh, there's a public cry over this. I better go along with it'. Then what you're doing is replacing the rule of law with the rule of the mob. Ask yourself which one you'd rather have."

Harvey said the only time a judge's decision could be questioned was via the appeal process.

"You don't sort of go before a board and get marked on key performance indicators - no, of course not. You've got to understand, judges are an arm of Government and the courts are an arm of Government.

Being a judge required one to be brave and strong when making their decisions.

"You have to be independent,'' Harvey said.

"And there's often a lot of courage that's involved in making the decision that you know may be unpopular, but that is according to law.''

Asked if he had ever felt that way during his time as a judge, he said: "Often - every judge does.''

The legal test: How the judges judge

The default position is that the Court must not discharge without conviction unless the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

1. Identify the circumstances of the offence and the offender, including aggravating and mitigating circumstances, to determine gravity of offence.

2. Identify the consequences of conviction.

3. Determine whether the consequences of a conviction are out of all proportion to the gravity of the offence.

Then, if satisfied as to the third step, the Judge must consider whether or not to exercise the discretion.