Daniel Muston, 41, Ryan Peter Marshall, 31, and Anthony Raymond Mitchell, 32, were charged over their actions near the Sydney Jewish Museum in inner-city Darlinghurst on October 13, 2023.
The three men have pleaded not guilty to charges of behaving in an offensive manner in public and knowingly displaying Nazi symbols without an excuse.
The Downing Centre Local Court on Monday was shown a YouTube clip of comedian Ricky Gervais, which Mitchell told police he was referencing when he made the salute.Â
Anthony Mitchell's lawyer said his client was recreating Ricky Gervais' act for artistic purposes. (Steve Markham/AAP PHOTOS)
However, Magistrate Jennifer Atkinson questioned the timing of the acts, just days after hundreds of people were killed in Israel during attacks by Hamas on October 7.
"It really is a matter of common knowledge what occurred in Israel days earlier," she told the court.
"He might have said it was a joke but why that location, why that time?"
The case will test laws prohibiting the display of Nazi symbols, introduced by the NSW parliament in 2022 and carrying a maximum penalty of 12 months' jail, an $11,000 fine, or both.
During an interview with NSW Police, Mitchell made multiple references to a performance by British comedian Ricky Gervais.
In the clip played to the court, Gervais performs a mock Nazi salute while pushing his hair down to mimic Hitler.
"I do that quick so no one can take a picture of me doing that," Gervais says in the clip.
"Not a traditional subject for comedy the old Holocaust."
Daniel Muston (left) told police people have become "too sensitive". (Steve Markham/AAP PHOTOS)
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 in dispute that what the men were doing was a joke.
"The fact it's a joke, we don't shy away from that," Sergeant Langton said.
However, he pointed out there was a difference between Gervais performing the salute in the context of a comedy show and others doing so in a public place.
"I'm not making a decision about Ricky Gervais," Ms Atkinson noted.
The court viewed 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 the same day, a body-worn camera captured police arresting the men at a nearby construction site for offensive conduct, with one of the officers asking: "you guys were just outside the Jewish museum giving Hitler salutes?"
The court was told a security guard at the museum saw the alleged salutes on CCTV and called police, and that no other members of the public complained.
The magistrate will hand down her decision on Ryan Marshall and his co-accused in October. (Steve Markham/AAP PHOTOS)
"We were all just joking around," Mitchell said, according to the police camera footage.
"We were just making a joke."
Muston tells the officers that people make jokes all the time and that people have become "too sensitive".
"It's probably not the time for jokes, is it?" one of the officers tells the men, according to the footage.
"Those sort of actions do offend people."
Lawyers for the three men also argued that the Sieg Heil salute did not fall under the legislation, which they argued only extended to symbols such as the swastika and Iron Cross.
"It's only to do with symbols," Muston's lawyer Bryan Wrench said.
"We say ... it doesn't include a gesture."
The matter will return to court on October 24 for judgment.
