Three men have been found guilty under new laws banning the display of Nazi symbols after trying to argue their “heil Hitler” salutes outside the Sydney Jewish Museum were a joke.
Daniel Muston, 41, Ryan Peter Marshall, 31, and Anthony Raymond Mitchell, 32, were charged after performing the salute outside the museum in inner-city Darlinghurst on 13 October 2023.
They each pleaded not guilty to one count of knowingly displaying a Nazi symbol in public without a reasonable excuse and backup charges of offensive conduct.
The men had claimed the acts were a joke, with one citing a skit by British comedian Ricky Gervais in which he gave the salute.
But magistrate Jennifer Atkinson on Thursday found each of the men guilty, saying although they might have been joking or been caught up in the moment, their actions were against the law.
The three construction workers were on their lunch break at the time and had not deliberately intended to pass by the museum, Downing Centre local court was told previously.
As the men were walking back to their van, they were captured on footage laughing, raising their right hands and goose-stepping.
The gestures were witnessed on CCTV by a security guard at the museum, who contacted police.
As the instigator of the salutes, Marshall was fined $1,500, while Muston was fined $1,000.
Mitchell was fined $500 for his offence, which was deemed the least serious.
The case was another test for laws prohibiting the display of Nazi symbols that were introduced by the New South Wales parliament in 2022.
The offence carries a maximum penalty of 12 months’ jail, an $11,000 fine or both.
Lawyers for the three men argued the salute did not fall under the legislation, which they argued only extended to symbols such as the swastika and Iron Cross.
Atkinson noted on Thursday there were no previously published decisions to help inform her ruling due to the laws being relatively new.
But she found the wording of the legislation allowed for “acts or gestures” to be included.
“Interestingly, the bill does not define the term ‘Nazi salute’,” Atkinson said.
However, what constituted the salute was common knowledge and was easily discernible including by viewing footage from the 1930s and 1940s, the magistrate said.
“They are immediately recognisable as being associated with that regime,” she said.
The Nazi regime was characterised by ideologies of “fascism, racism and antisemitism” and had been “shamefully” adopted by some neo-Nazi groups, Atkinson added.
Police prosecutor David Langton earlier said it was not in dispute the salutes were performed as a joke, but he pointed out the difference between carrying out the act at a comedy show and on a public street.
Atkinson said she accepted each of the men had learned their lessons, but there was a strong need to defend other offenders.
“This is not a trivial offence,” she said, adding that if she had found their actions were planned she would have considered their crimes much more serious.
In June, three other men were convicted under the same laws for performing Nazi salutes during a soccer match at Parramatta’s CommBank Stadium in October 2022.
The men, who were each fined $500, have since appealed their convictions.