CCTV footage that appeared to show Brittany Higgins "swaying" at Parliament House on the morning of her alleged rape went missing and was never recovered, a prosecutor claims.
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ACT Director of Public Prosecutions Shane Drumgold SC revealed the allegedly vanishing video in an 80-page statement that has been tendered to an inquiry into the prosecution of Bruce Lehrmann.
The inquiry is examining his conduct, along with the actions of police and ACT Victims of Crime Commissioner Heidi Yates, in connection with the aborted criminal case.
Mr Lehrmann, who denied raping Ms Higgins at Parliament House in 2019 when the pair were Liberal Party staffers, has maintained his innocence in the wake of a mistrial last year.
In his lengthy statement to the inquiry, Mr Drumgold describes how, in June 2021, he received a brief of evidence from police as part of their request for him to provide advice on charging Mr Lehrmann.
He said it came on a hard drive, which was locked in a way that prevented its contents being downloaded onto the servers at his office.
The drive contained CCTV files, a large number of which he watched before advising that Mr Lehrmann should be charged.
One such file, according to Mr Drumgold, showed Ms Higgins "swaying" at Parliament House on the morning in question, when she and Mr Lehrmann returned to work after a drunken night out.
"Ms Higgins could be seen swaying," the top prosecutor's statement says.
"She moved her right hand to a wall as if to stabilise herself."
Mr Drumgold said he believed Skye Jerome, his junior counsel, also viewed this footage in June 2021.
About nine months later, by which time Mr Lehrmann had been charged and the case was being prepared for trial, Mr Drumgold reviewed an updated brief of evidence prepared by police.
When he looked through the CCTV footage in this "trial brief", he could not find this particular clip.
Believing it should be included, he tasked Ms Jerome with investigating its whereabouts.
While he was not directly involved in the process of trying to recover it, Mr Drumgold outlined a number of steps that were undertaken.
The footage was never recovered, and he said Detective Sergeant David Fleming had emailed Ms Jerome in May 2022 to dismiss any suggestion police were responsible for losing it.
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While Mr Drumgold detailed the disappearing video in his statement, he wrote that he believed its omission from the trial was unlikely to have had any effect on the outcome.
Much was made during Mr Lehrmann's trial of how intoxicated Ms Higgins was on the morning in question, when she described being "as drunk as I've ever been in my life".
The missing footage was therefore, in Mr Drumgold's opinion, "relevant to a fact in issue".
Mr Drumgold continues to give evidence at the independent inquiry, where he is the first witness.
A large part of the inquiry is focused on the divergent views of Mr Drumgold, who believed there were reasonable prospects of convicting Mr Lehrmann, and police, who were concerned about Ms Higgins' claims and "discrepancies" in what she alleged.
