Man's Nazi salute conviction overturned after claim he was copying Ricky Gervais
A man who argued he was merely copying a performance by comedian Ricky Gervais when he performed a Nazi salute outside a Jewish museum has won his bid to overturn the conviction.
Ryan Marshall, Anthony Mitchell and Daniel Muston were last October convicted of performing a Nazi salute outside the Sydney Jewish Museum in October of 2023.
The trio, working nearby the museum, were on their way back to their work van when they performed Nazi salutes and a goose step one after the other.
Marshall, Muston and Mr Mitchell were each convicted and handed down respective fines of $1500, $1000 and $500.
All three men appealed their convictions in Sydney's District Court on Friday, the group arguing their actions couldn't be constituted or characterised as a Nazi symbol under the public act.
'Put differently, the issue is whether as a matter of statutory construction the gesture is capable of amounting to a Nazi symbol,' Judge Craig Smith SC told the court on Friday morning.
However, the prosecution argued there was 'no basis and it was artificial to limit the definition of a symbol to a tangible object'.
Mr Mitchell's lawyer's further argued their client was repeating, reciting or mimicking part of a performance by popular English comedian Ricky Gervais.
They argued Mr Mitchell's intent was not subjectively malicious.
'It was submitted that if Mr Gervais' performance was artistic, and the appellant was copying the artistic performance, that what the appellant did (had artistic purpose),' Judge Smith said.
The prosecution submitted Mr Gervais' performance was before an audience, in a theatre, and had a particular context, while what Mr Mitchell did was not reasonable or in good faith as part of an artistic performance.
Therefore, there was no reasonable excuse for his actions.
Turning to Mr Mitchell's argument of artistic expression, Judge Smith said a Nazi symbol during a lecture might reasonably be seen as for academic purposes and similarly during a performance for artistic purposes.
'What (Mitchell) did was not an expression of artistic purpose, it was repeating the expression of someone else's arguably artistic purpose,' Judge Smith said.
'The facts and circumstances here are a good distance from that which is excusable.
'I respectfully fail to see how … what he did could possibly be characterised as being done for an artistic purpose.'
Judge Smith initially dismissed each of the men's appeals; however, he was later 'persuaded' to overturn Mitchell's.
Lawyers on behalf of Mr Mitchell and Muston challenged the severity of their sentences after Judge Smith ruled to throw out their appeals, with Mitchell's lawyer arguing his client was simply copying Mr Gervais' skit and had no ties or intent related to the Nazi party.
The court was also told Mr Mitchell didn't know he was outside the Sydney Jewish Museum at the time while Muston did.
'The conduct occurred over one second…it was really one second,' Mr Mitchell's lawyer told the court.
'It was definitely not intended to be seen by anyone other than the co-offenders. Importantly, the conduct was not viewed by any member of the public…it was viewed by someone from the museum who was looking at a screen.
'My submission is that the conduct of Mr Mitchell falls at the very bottom of the range in objective seriousness.'
Judge Smith told the court that he was 'persuaded' to a different position in respect of Mr Mitchell, allowing the appeal and thus quashing his conviction.
Muston's lawyer, Bryan Wrench, argued his client had no Nazi ideology, had expressed regret, and that he'd participated in a tour at the Jewish museum which made him appreciate the seriousness of the actions.
Judge Smith didn't consider it appropriate to overturn Muston's conviction; however, he did reduce his fine from $1000 to $500, calling the initial figure 'excessive'.
No severity appeal was entered on Marshall's behalf.
Judge Smith emphasised the offences were to be taken 'very seriously' by courts.
'The display of Nazi symbols will not be tolerated and will be dealt with sternly by the courts,' Judge Smith said.
Marshall had a cigarette hanging outside his mouth as he walked outside the Downing Centre on Friday, pausing for a moment to pose for the cameras after his win.
Asked how he was feeling, he told reporters 'it is what it is', telling them to 'have a good day'.
The court was earlier told there didn't appear to be any hateful ideology behind the men's' actions.
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