Three men accused of performing the Nazi salute outside a Jewish museum told police they were joking, with one saying he was imitating a British comedian’s act, a court has heard.
Daniel Muston, 41, Ryan Peter Marshall, 31, and Anthony Raymond Mitchell, 32, have been charged over their actions near the Sydney Jewish Museum in central Darlinghurst on October 13, 2023.
All three men have pleaded not guilty to charges of offensive behaviour in public and deliberately displaying Nazi symbols without excuse.
On Monday, Downing Centre Local Court was shown a YouTube video of comedian Ricky Gervais, which Mitchell told police he was referring to when he made the salute.
However, Judge Jennifer Atkinson questioned the timing of the attacks, just days after hundreds of people were killed in Israel during Hamas attacks on 7 October.
“It is actually public knowledge what happened in Israel a few days ago,” he told the court.
I could have said it was a joke, but why that place, why that time?
The case will test laws banning the display of Nazi symbols, introduced by the New South Wales parliament in 2022 and carrying a maximum penalty of 12 months in jail, an $11,000 fine or both.
During an interview with New South Wales Police, Mitchell made multiple references to a performance by British comedian Ricky Gervais.
Anthony Mitchell said they were just joking when they gave the Nazi salute outside a Jewish museum.
Daniel Muston told police that people have become “too sensitive”
In the clip played in court, Gervais performs a mock Nazi salute while lowering his hair to imitate Hitler.
“I do it quickly so no one can take a picture of me doing it,” Gervais says in the clip.
‘The ancient Holocaust is not a traditional comedy topic.’
Mitchell’s lawyer, Adrian Canceri, told the court his client was recreating Gervais’ act for artistic purposes, which is one of the exemptions under the law.
Police prosecutor David Langton told the court it was not disputed that what the men were doing was a prank.
“It’s a joke, we’re not hiding it,” Sergeant Langton said.
However, he noted there was a difference between Gervais performing the salute in the context of a comedy show and others doing it in a public place.
“I’m not going to make a decision on Ricky Gervais,” Atkinson said.
The court was shown footage of the men walking past the Jewish museum on the day of the alleged offence, in which they can be seen laughing and briefly raising their hands in apparent Nazi salutes.
Later that day, a body camera captured police arresting the men at a nearby construction site for offensive behaviour, with one of the officers asking: “Were you guys outside the Jewish museum doing the Hitler salute?”
The court was told that a security guard at the museum saw the alleged greetings on CCTV and called the police, and that no other members of the public complained.
The judge will announce her decision on Ryan Marshall and his co-defendants in October
“We were all joking around,” Mitchell said, according to police body camera footage.
‘We were just joking.’
Muston tells officers that people make jokes all the time and that people have become “too sensitive.”
“This is probably not the time for jokes, is it?” one of the officers tells the men, according to the footage.
“That kind of action offends people.”
Lawyers for the three men also argued that the Sieg Heil salute did not fall under the legislation, which they said only extended to symbols such as the swastika and the Iron Cross.
“It’s just a question of symbols,” said Muston’s attorney, Bryan Wrench.
‘We say… does not include any gesture.’
The case will return to court on October 24 for sentencing.
Man’s Nazi salute outside Sydney Jewish Museum imitated Ricky Gervais skit, court hears