Anthony Raymond Mitchell, 33, performed a Nazi salute and goose-step with two co-workers near the Sydney Jewish Museum in October 2023.

The salute, seen on the museum’s CCTV by a security guard, came days after Hamas militants killed 1200 Israelis and took hundreds more hostage in southern Israel, sparking the latest outbreak of war in Gaza.

At the time, the construction workers were on their lunch break and walking back to their van.

When interviewed by police, Mitchell said he was mimicking a Netflix performance and realised “those who were not familiar with the Ricky Gervais skit could take the actions in a certain way”.

Mitchell and his co-workers each argued the gestures were a joke but were found guilty of offensive behaviour and knowingly displaying Nazi symbols without excuse by a magistrate in October.

The case tested 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.

Re-running the case in the District Court on appeal, the trio’s lawyers argued that the gestures should not fall within the definition of displaying a Nazi symbol.

But that was rejected by Judge Craig Smith on Friday.

”They are immediately recognised as being associated with that regime and period of history,” he said in the Downing Centre court.

There was no reasonable excuse for the trio’s actions to be performed outside the museum, he said.

While the new law allowed the Nazi symbol to be displayed for academic, educational, artistic or other public interest purposes, the tradies’ actions were “nothing of the sort”, Judge Smith said.

Lawyer Bryan Wrench, representing one of Mitchell’s co-workers Daniel Muston, told the court that the actions occurred within a split second, and were not planned.

“There is no Nazi ideology behind this,” he said.

Muston, 42, had completed a tour of the museum since his conviction in an attempt to educate himself on Jewish culture and history, Wrench said.

Judge Smith accepted Mitchell, Muston and the third man – Ryan Peter Marshall, 31 – did not have any connection with the hateful ideologies underlying the Nazi party.

But he upheld a magistrate’s guilty findings against all three men and the decision to record a conviction against Marshall and Muston.

Mitchell’s conviction was however scrubbed from his record with the judge accepting he did not know he was outside the Jewish museum, unlike his co-workers.

“I’ve been persuaded to a different position for Mr Mitchell,” Judge Smith said.

Mitchell was handed a nine-month good behaviour bond in place of the conviction.

The judge also reduced Muston’s fine from $1000 to $500, labelling it as “excessive”.

The original $1500 fine for Marshall, the instigator of the salutes, was kept in place.

The judgment follows the arrest of two men in February for unfurling a Nazi flag at a pub near the Sydney Jewish museum, and the jailing in November of a far-right extremist and self-proclaimed “Hitler soldier” in Melbourne.