Three men accused of giving the Hitler salute outside a Jewish museum have told police they were joking, while one of them said he was imitating a British comedian, a court has been told.
Daniel Muston, 41, Ryan Peter Marshall, 31, and Anthony Raymond Mitchell, 32, were charged over their actions near the Sydney Jewish Museum in Darlinghurst town centre on October 13, 2023.
The three men have pleaded not guilty to charges of public indecency and knowingly displaying Nazi symbols without excuse.
Downing Centre Crown Court was shown a YouTube clip of comedian Ricky Gervais on Monday, which Mitchell told police he referred to when he made the salute.
However, Magistrate Jennifer Atkinson questioned the timing of the attacks, which came just days after hundreds of people were killed in Israel in Hamas attacks on October 7.
“It is really common knowledge what happened in Israel a few days earlier,” she told the court.
“He may have said it was a joke, but why at that location and at 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 NSW police, Mitchell repeatedly referred to a performance by British comedian Ricky Gervais.
Anthony Mitchell said they were just joking when they gave the Hitler salute in front of a Jewish museum
Daniel Muston told police people have become ‘too sensitive’
In the clip played in court, Gervais gives a mock Hitler salute while letting down his hair to mimic Hitler.
“I do it quickly so no one can take a picture of me doing it,” Gervais says in the clip.
“Not a traditional subject for a comedy about the Holocaust.”
Mitchell’s lawyer Adrian Canceri told the court his client was reenacting Gervais’ act for artistic purposes, which is one of the exceptions under the law.
Police prosecutor David Langton told the court there was no dispute that what the men did was a joke.
“It’s a joke, we don’t shy away from it,” said Sergeant Langton.
However, he pointed out that there is a difference between Gervais doing the salute in the context of a comedy show and others doing so in a public place.
“I don’t make a decision about Ricky Gervais,” Mrs Atkinson noted.
The court has viewed images of the men walking past the Jewish Museum on the day of the alleged crime. They can be seen laughing and briefly raising their hands in the air to give the Hitler salute.
Later that day, bodycam footage captured police arresting the men at a nearby construction site for indecent behavior. One of the officers asked, “You were just outside the Jewish Museum doing the Hitler salute?”
The court was told that a museum security guard had seen the alleged salute on CCTV and called police. No other members of the public had complained.
The magistrate will rule on Ryan Marshall and his co-defendants in October
“We were all just joking,” Mitchell said, according to police body camera footage.
“We were just joking.”
Muston tells the officers that jokes are being made all the time and that people have become “too sensitive.”
“This probably isn’t the time for jokes, is it?” one of the officers says to the men, according to the footage.
‘Such actions hurt people.’
Lawyers for the three men also argued that the Sieg Heil salute was not covered by the law, which they said only applied to symbols such as the swastika and the Iron Cross.
“It’s just about symbols,” said Muston’s attorney Bryan Wrench.
“We say… that there is no gesture involved.”
The case will return to court on October 24.
A man’s Hitler salute outside Sydney’s Jewish Museum was an imitation of Ricky Gervais sketch, a court has heard