The jury charged with rendering a verdict in an alleged principal sex abuse case should use their “common sense” to see the holes in the testimony of three sisters, her lawyer has repeatedly said.
Giving his final remarks to the County Court trial of Malka Leifer, 56, barrister Ian Hill KC has sought to convince the jury the allegations are an imagined “false narrative”.
“These are, we say, things that have been imagined over the course of a long period of time,” he said.
“You’ve been hearing the narrative bit by bit.
“Your task now is to put it all together, that’s why we said at the beginning to keep an open mind.”
Ms Leifer stands accused of sexually abusing sisters Nicole Meyer, Dassi Erlich and Elly Sapper while principal at the ultra-Orthodox Jewish Adass Israel School in Melbourne’s southeast.
The women allege the abuse began in their final years at the school and continued after graduation when Ms Leifer “picked” them to return as junior religious teachers.
Malka Leifer stands accused of sexually abusing three sisters. Picture: NCA NewsWire / Paul Tyquin
The mother of eight was brought over from Israel in 2001 to head religious studies for senior students before quickly being promoted to principal.
She commanded a great deal of respect in the insular community, was well liked and was looked up to by the sisters as a “replacement mother”, the jury has been told.
Ms Leifer has pleaded not guilty to 27 charges, including rape, sexual penetration of a child aged 16 or 17, and inappropriate conduct, said to have occurred between 2003 and 2007.
On Friday, Mr Hill took the jury through the testimony of Ms Meyer and Ms Erlich, who he said had spoken to others about Ms Leifer in “positive and glowing” terms until 2011.
He said understanding how the allegations against his client had developed was critical.
The jury was told allegations against Ms Leifer first arose in early 2008, when Ms Erlich had begun seeing social worker Chana Rabinowitz.
Giving evidence to the court, Ms Rabinowitz said during a “particularly emotional” session in early 2008, Ms Erlich told her she had allegedly been sexually abused by her school principal.
“I remember vividly asking her who hurt her … she whispered to me it was Ms Leifer,” she said.
Ms Erlich’s then husband Joshua Erlich told the jury he overheard his wife on the phone to Ms Meyer in the days after that counselling session.
“She was saying she’s spoken to Rabinowitz, she had to disclose something about Ms Leifer,” he said.
“She doesn’t understand why Rabinowitz is making a big deal about it – was blowing it up out of proportion.”
Prosecutors allege Ms Leifer preyed on the students who had grown up in an abusive household. Picture: Supplied.
He said he questioned her the following morning about the conversation, with Ms Erlich confirming she had spoken about Ms Leifer being “affectionate” and was confused about why Ms Rabinowitz was alarmed.
This, Mr Hill said, was when Ms Leifer’s “innocent affection” began to snowball into a false narrative of abuse.
“We say this is a very important piece of evidence because it’s the start of this narrative,” he said.
“What Hadassa (Ms Erlich) described to him, it was not sexual.
“(It) grew like wildfire into a story that was constantly added to and varied over the years.”
Mr Hill said Mr Erlich’s testimony pointed to the “topic of Ms Leifer” dying down between the sisters until a moment in March 2011 when he overheard his wife and Ms Meyer discussing plans to “harass Ms Leifer”.
“Joshua Erlich said Hadassa, his then wife, and Nechama (Ms Meyer) were joking around like it was a fun thing to do to harass Malka Leifer,” he told the jury.
“He gives evidence that at the time she was not in a stable mental state.”
The court was told the allegations were first raised with police in late 2011.
Mr Hill pointed to “significant” changes between the two sisters’ police statements in 2011 compared with additional statements in 2021.
Speaking about Ms Meyer’s police statements, he said there were no allegations of digital penetration until at least three years after her first statement.
He questioned the reliability of her response to this question under cross-examination, where she had said she’d lost her memory due to trauma.
“You’re asked now to accept flashbacks, dreams, nightmares and the like in respect to very serious matters … are not only truthful but reliable enough to convict now,” he said.
“We say use your common sense.”
Ms Leifer worked at the Adass Israel School in Elsternwick from 2001 to 2008. Picture: Ian Currie
Mr Hill told the jury the women had been “really uncooperative” on the stand, replying “I don’t recall” more than 400 times during cross-examination.
“You might turn your mind and ask why,” he said.
“It‘s obvious, we say, over time the affection they had for Ms Leifer has turned to an animus.”
During his final remarks on Wednesday, prosecutor Justin Lewis seemed to anticipate Mr Hill’s arguments, telling the jury the differences in the women’s statements should be viewed as them trying to do their “level best” to accurately recall.
“Memory is not looking at a video recording … there’s nothing unusual about that, it’s a function of being human,” he said.
“Frankly, if the complainants had provided answers in relation to every such question, I suggest Mr Hill would be pointing to that and saying it was suspicious.”
Prosecutors have alleged Ms Leifer encouraged the girls to view her as a surrogate mother, showering them with love and affection to manipulate and groom them.
“These sisters had a miserable home life and, as far as the accused was concerned, they were ripe for the picking,” he said.
“In each instance she started with lesser acts so she could see the reaction and escalated over time.
“With each event, the accused’s confidence about getting away with it would increase. (The sisters) became more and more used to these acts happening.
“It was simply the way things were.”
The prosecution has alleged Ms Leifer had a ‘tendency’ to have a sexual interest in girls when they were teenage students at the school. Picture: Supplied.
The case against Ms Leifer alleges she would create circumstances where she and the girls could be alone at school, on school trips, or “private education” sessions at her home.
During these alleged incidents, she’s alleged to have sexually touched, fondled, kissed and penetrated the women while telling them she was “preparing them for marriage”.
The bulk of testimony against Ms Leifer has come from the three complainants, with Mr Lewis saying this was “not unusual”.
“It’s common in these sorts of cases where abuse tends to take place behind closed doors and away from prying eyes,” he said.
“There’s no mystery in any of them speaking highly of her – they were getting love and attention from one of the most revered and respected people they knew.”
Mr Hill has asked the jury to question why there is no corroborating evidence beyond the three sisters’ testimony, saying incidents where Ms Leifer would allegedly pull the girls out of class or away from other students “would have been noted by a number of people”.
“We’ve got numerous people involved in these circumstances. If anyone wanted to check it could have been done in 2011 but it wasn’t,” he said.
“We do blame the police for not conducting a proper investigation.”
He is set to continue giving his closing remarks on Tuesday.
The presiding judge, Mark Gamble, is expected to call on the jury to retire and reach a verdict on Wednesday.