Two of the first people convicted under laws that outlawed shows of Nazi symbolism have had their guilty verdicts overturned after a judge found their public salutes could not be definitively linked to the fascist German regime.
Nikola Marko Gasparovic, 46, Dominik Sieben, 25, and Marijan Lisica, 46, were accused of performing the salute at Parramatta's CommBank Stadium on October 1, 2022 during the match between Sydney United 58 and Macarthur FC.
The three men, who are all of Croatian background, did not know each other prior to the soccer final and were seated in different parts of the stadium.
They were convicted and fined $500 in June after a Parramatta Local Court magistrate found them each guilty of one count of publicly displaying a Nazi symbol without a reasonable excuse.
All three were among the first people charged and convicted in NSW under laws that made it a criminal office to knowingly display a Nazi symbol in public without a reasonable excuse.
The legislation passed state parliament in August 2022.
In court, they all claimed that the gesture was not linked to Nazi Germany but was a symbol of Croatian national pride.
Mr Gasparovic successfully overturned his conviction and fine on appeal in the Parramatta District Court on Thursday.
Judge Sharon Harris found the truck driver's two salutes were done among other cheering spectators and were not accompanied by anything that was connected to Nazi ideology.
She pointed to evidence from Kristy Campion, a senior lecturer in terrorism studies from Charles Sturt University, who said the salute needed to be "triangulated" with other things such as clothing or chants to determine if it was Nazi symbolism.
Police officers directing traffic, netballers defending the goal and people cheering a soccer match could all perform the gesture without it being linked to Nazism, Judge Harris said.
"There was a reasonable absence of any other symbolism or evidence of why he would perform the Nazi salute," the judge said of Gasporavic.
On Monday, she also overturned the conviction and fine for Mr Seiben, who attended the final wearing a Croatian water polo cap and with a national flag draped over his shoulders.
But Judge Harris on Thursday upheld the guilty finding against Lisica, who performed the salute seven times.
They included one example of scaling a guard rail to raise his hand and later when standing by himself up at the top of the spectator area.
The painter had worn army camouflage to the soccer match and held a large hand-made Croatian flag with the phrase "za dom", meaning "for homeland".
While the phrase did not have any association with Nazism, Lisica deliberately chose to situate himself in such a way as to be seen by others in the stadium, the judge said.
He also gave evasive answers to police about whether he raised his arm in a Nazi salute when interviewed in February 2023, she said.
The judge also rejected the 46-year-old's claim he was too drunk to remember what he did after having 10 beers on the day.
His solicitor Avinash Singh signalled he would be looking into appeal options when speaking to journalists outside court.
