PORT Adelaide superstar Zak Butters has had his umpire abuse charge thrown out by the AFL Appeal Board after it was ruled a panel member's decision to listen to part of the original Tribunal hearing from his car was a "miscarriage of justice".
And the AFL has apologised to both Butters and umpire Nick Foot, saying it will now "reflect" on the outcome of the case and take lessons from it, while the Power has doubled down on its call for the Tribunal process to be reviewed.
Butters was fined $1500 by the AFL Tribunal last Tuesday for abusing field umpire Foot during the Power's loss to St Kilda in round five.
But Monday night's appeal hearing barely referenced the original hearing at all, as Port appealed based on an error of law regarding the conduct of Tribunal panel member, Jason Johnson.
Johnson, the 2000 Essendon premiership player and now real estate agent, tuned in to the online hearing in his office but then briefly disconnected and switched devices to his mobile phone as he drove to an open for inspection.
The Power argued Johnson's conduct "was inexplicable and amounted to a miscarriage of justice".
"The board cannot be satisfied that Mr Johnson in those circumstances was paying proper attention to his duties and adjudicating appropriately," lawyer Paul Ehrlich KC said, noting it had to be inferred Johnson was distracted.
After deliberating for just 14 minutes, the panel of Will Houghton (Chair), Stephen Jurica and Richard Loveridge agreed, and upheld the appeal.
Houghton said the conduct "constituted a miscarriage of justice" and "it was clearly an error of law that had a material impact on the decision of the Tribunal."
The Appeal Board recommended a re-trial, but the AFL confirmed during the hearing that it would not request one, meaning Butters is in the clear.
"While Port Adelaide welcomes the dismissal of this matter, the club maintains its position that the Tribunal process needs to be reviewed," Port said in a statement.
"The club nor the AFL will seek a re-hearing."
Foot had alleged Butters asked him: 'How much are they paying you?' after awarding the Saints a free kick during their match in Gather Round.
Butters had always maintained his innocence.
During an at times bizarre hearing on Monday evening, Butters' lawyer - Mr Ehrlich KC - had to apologise on several occasions for his dog, which was initially barking outside his window before it entered his home office, continuing to bark.
At one stage, Mr Ehrlich apologised, turned his camera and microphone off and ushered the dog out of the office before continuing his argument.
The dog could be heard barking in the background later in the hearing, but did not enter his office again.
The irony of the dog being a distraction while Mr Ehrlich was arguing the case should be thrown out because Johnson was himself distracted last week could not be ignored.
"Mr Johnson was driving both during the final submissions and also whilst the deliberations commenced, at least," Mr Ehrlich said.
"We say that constituted ... misconduct and we say conduct that ought to have been disclosed, and wasn't. There is no evidence that Mr Johnson informed anyone else of what he was doing.
"It is to be inferred that his mind was elsewhere throughout final submission because he was conscious that he had to leave ... as a matter of human nature.
"We say he was not paying proper attention from at least the time he became concerned that he would have to leave."
Mr Ehrlich 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".
He also said it was impossible to know whether, if Johnson hadn't been distracted, he couldn't have convinced fellow panellist Darren Gaspar and Tribunal chair Renee Enbom KC that Butters should be cleared.
Mr Ehrlich even submitted evidence from Google Maps to show Johnson's drive from his real estate office to the open for inspection in Strathmore Heights during peak hour would have taken "at least 20-25 minutes". The timings were disputed by the AFL.
Mr Albert Dinelli KC, representing the AFL, acknowledged it was "regrettable" that Johnson had briefly disconnected from the hearing, but described it as a "minor lapse" and said Butters had not been denied of his right to a hearing.
"It is not said that he was not paying attention at all, albeit driving for part of the submissions and present for the deliberations," Dinelli said.
In a statement, the AFL acknowledged the role Johnson's conduct played in the outcome and expressed "strong support for umpires at all levels".
"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," a statement read.
"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."
- with AAP