Integrity commission's Sofronoff probe has few options

For the moment is at the point where the commission is considering adverse comments made about Sofronoff, and asking himself whether it's worth having a look at what happened to see whether there could be any fire amid the smoke. Acting integrity commissioner John McMillan can probably make that decision simply from official records, and will probably not need to call witnesses, or demand documents not already on the public record. That could be for afterwards, if he decides that the matter is worth investigating for potential corruption.

He does not have to go that way. He could decide the matter, which has already been the subject of a Supreme Court hearing, has already been sufficiently dealt with. The Supreme Court was critical of Sofronoff's conduct in his dealings with some journalists and found they could give rise to a perception of bias - a sense he was not dealing fairly with all of the issues before him. It was not up to the complainant in the Supreme Court case to prove that Sofronoff was biased (Sofronoff, of course, completely denied it). All that the former director of public prosecutions, Shane Drumgold, had to do was to show that an outsider, seeing the conduct in question, might have grounds for suspecting bias.

One of the things Sofronoff did that was the subject of complaints about his behaviour by the Chief Minister, Andrew Barr, was that Sofronoff had handed a copy of the report, on what he says was an embargo basis, to Janet Albrechtsen, a journalist-advocate from The Australian who often seemed to have the scoop on information coming to the inquiry. Albrechtsen published her report of the findings before they had reached the government, much to the government's anger. She said she had come across a second copy of the report by means which did not bind her to the embargo condition.

In normal circumstances, the Integrity Commissioner would regard complaints about premature release of reports as being beneath his dignity. But, it emerged, the early access given to Ms Albrechtsen was part of an extraordinary access to the activities of the commission given to Ms Albrechtsen and The Australian and not given to anyone else.

Journalists had only very limited access to Sofronoff, and generally had to make inquiries through commission staff. By contrast Albrechtsen had the former judge's telephone numbers, official and personal email addresses, and even lunched with him. The email trail showed Sofronoff sometimes volunteering information and making comments on Albrechtsen's thinking. Telephone trails show hour upon hour of conversations.

Albrechtsen was running her reports and commentary as a crusade, whether in support of the continuing right of the accused man, Bruce Lehrmann, to a presumption of innocence, or the suggestion he was the victim of a feminist witch-hunt with secondary agendas about men's violence against women.

Her writings, in short, were highly opinionated, and rarely mere reportage of matters openly before the inquiry. Throughout the inquiry, moreover, she regularly disclosed information never formally before the inquiry, including details of the complainant's messages and phone calls with friends, and meetings with television reporters. She had early access to police statements and was the first to report scathing police criticisms about the conduct of the prosecution, during which, some police suggested, Drumgold lost any objectivity.

It may not surprise that Albrechtsen correctly anticipated criticisms of Drumgold made by Sofronoff. But even before that, the close relationship of confidence between the pair invited suggestions Sofronoff might have come to agree with Albrechtsen's criticisms which were not part of the formal inquiry, or his report. These included criticisms of the conduct and behaviour of the alleged victim, something Sofronoff stayed well away from, as not being part of his terms of reference.

Once outsiders were aware of her privileged access, it was almost inevitable some would think they saw the case through much the same eyes, and with much the same prejudices. But there's no evidence this was otherwise than an honest meeting of minds.

Under attack in the Supreme Court, Sofronoff seemed to suggest his dealings with Albrechtsen were normal judge-reporter ones. But he behaved differently with the many other journalists covering the case, and on occasion seemed to indicate he suspected all of their motives. Only Albrechtsen - on the face of it the journalist with the biggest agenda - seemed to meet his standards of objectivity and fairness.

That was the appearance of an approach that led to strong criticism of Sofronoff and the finding that some of his report had the appearance of being biased. That was a finding hard to contradict. But it is a significant step beyond that to suspect a disposition to a particular view of a case, and the appearance of prejudging was actuated by malice, a corrupt inclination to arrive at adverse findings come what may, or a conscious decision to ignore the truth.

It may prove to be the commission comes to think Sofronoff has already been exposed and has suffered the condemnation he deserves. Nothing the commission could do could much add to it, unless one could find clear evidence of improper motive or undue influence.