Zak Butters has won his appeal over his sledge of umpire Nick Foot, but no finding was made over whether he actually did utter the words “how much are they paying you?”
The details of the case itself were not debated on Monday evening; the Appeal Board instead focuses on whether there was an error in law in how the verdict was determined, or if it was grossly unfair.
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Port Adelaide successfully argued there was an error of law when jury member Jason Johnson left the deliberations for around 80 seconds and finished the Tribunal hearing in his car before attending a real estate inspection.
“It was clearly an error of law that had a material impact on the decision of the Tribunal,” Appeal Board chair Will Houghton found.
While Houghton believed a retrial would be the normal course of action the AFL said it did not want to retry the case, meaning Butters’ $1500 fine has been wiped.
AFL statement
The AFL acknowledges the decision of the AFL Appeals Board this evening to allow the appeal brought by Zak Butters of the Port Adelaide Football Club against the decision of the AFL Tribunal last week.
The AFL also acknowledges the Appeal Board’s finding that the conduct of AFL Tribunal Panel member Jason Johnson in the latter stages of the Tribunal hearing, constituted an error of law such that the Tribunal’s decision should be set aside.
As was stated in the Appeal Board hearing, the AFL does not seek a re-hearing and as such this is the end of this matter.
The AFL apologises for the inconvenience caused to the parties for the error of law that has led to this outcome, in particular Zak Butters, Ollie Wines and Ben Rutten of the Port Adelaide Football Club and AFL umpire Nick Foot.
The AFL reiterates its strong support for the AFL Tribunal and all of those who make an important contribution to the conduct of the AFL disciplinary system, including former players who lend an important perspective to these matters. The AFL also expresses its strong support for umpires at all levels and the vital role they play in our sport.
The AFL will now reflect on the reasons of the Appeal Board and learnings from tonight’s outcome.
Tribunal hearing
Albert Dinelli again represented the AFL, while Paul Ehrlich represented Port Adelaide, with Will Houghton as Appeal Board chair with jurors Richard Loveridge and Stephen Jurica.
The Power said it was “inexplicable and amounted to a miscarriage of justice” that Tribunal juror and real estate agent Jason Johnson deliberated while driving in his car for around 20-25 minutes to an open inspection in Strathmore Heights.
They argued it amounted to jury “misconduct” as Johnson did not disclose it beforehand, and believed he was not paying proper attention from the time he had to leave the Tribunal – which was during the Power’s final submissions.
“This was not a mere change in platform … it is to be inferred his mind was elsewhere through final submissions because he was conscious he had to leave or be late for his open inspection,” Ehrlich said.
They argued Johnson may have come to a different determination, and may well been able to convince others, had he been doing his duties properly, citing Garry Lyon’s arguments on AFL 360 last week as “exactly right”.
“One cannot drive a motor vehicle and conduct an open inspection and comply with juror duties,” Ehrlich said.
The Power pointed to a High Court case which found “a member of a Tribunal who does not appear to be alert to what is being said in the course of the hearing, may cause that hearing to be held unfair because the hearing should be by a Tribunal member, each member of which is concentrating on the case before him or her.
“That is the position as I see it under English law quite apart from the European Convention on Human Rights.”
Ehrlich needed to apologise at one stage for his dog barking during his arguments, and later went on mute so an unnamed woman could remove the dog from his office.
Appeal Board chair Houghton asked what legal error had been made, and what a material impact may or may not have been suffered by his client – with Ehrlich saying “a reasonable and well-informed person would be entitled to at least entertain a suspicion Johnson did not perform his duty in accordance with his obligations”.
Ehrlich said if successful, his first submission would be for the case to be referred back to the Tribunal for a retrial, and if not to have it quashed. Later in response the AFL said it was not seeking a retrial.
Dinelli for the AFL argued Johnson fully participated in the hearing despite moving to his phone, and the past cases referenced by the Power “overstated the position”.
He also argued the Tribunal guidelines make it clear “any hearing shall be conducted with as little formality and technicality, and with as much expedition as a proper consideration of the matter before it permits”.
He also pointed to a guideline which states the Tribunal’s verdict does not need to be unanimous, that is only two members need to agree.
Houghton questioned if the AFL was submitting that it “really didn’t matter” what Johnson was doing, Dinelli said “whilst it might have been regrettable that it was done by phone from a car … it does not lead to a consequence that it had a material impact” and argued he was still involved in the deliberations.
But Houghton also pointed to Johnson going on to hold a property inspection during deliberations, saying “I presume he was the estate agent, and he was hopeful perhaps of selling that property, so his attention would have been diverted”.
Dinelli argued Butters was still “not deprived of his rights to a hearing” and Johnson’s conduct amounted to a “minor lapse”.
In response the Power said this case was “no different to the cases we have seen … of mistrials being orders because jurors were doing crosswords and sudokus and the like”.
Last week the Tribunal found the stand-in Power captain asked Foot “how much are they paying you?” after a contentious free kick was awarded to St Kilda in Gather Round.
Foot took that as a suggestion he was being paid by the Saints and a shot at his integrity.
Butters told the Tribunal he said “surely that’s not a free kick”, and his case was backed up by nearby teammate Ollie Wines.
In the end though, the decisive factor going against Butters was the discrepancy between how many comments he claimed to have made, and how many comments Foot and Wines said he made — which saw the Tribunal deem his evidence inconsistent.
Originally published as ‘Clear error of law’: Butters wins appeal after juror’s car trip ruins case… but no call on sledge
