WHEN is a swastika not a swastika? When it is a tattoo on a man among other tattoos of symbols potentially linked to Buddhism, Hinduism or Jainism.
That was the argument put to Newcastle Local Court on behalf of 30-year-old Harley Lamotte on Monday, an alleged member of the Newcastle chapter of the Bandidos outlaw motor-cycle gang.
Lamotte pleaded not guilty to the offence of 'knowingly display by public act a Nazi symbol without excuse' with which he was charged along with other offences in relation to two wild brawls during a function at the Minmi pub on the afternoon of February 18 last year.
During a brief hearing, Lamotte's solicitor Cameron Duncan asked the officer in charge, Senior Constable Annabelle Sculley, whether she had called on an expert to determine whether or not the tattoo, on Lamotte's left shoulder, which was on display through the singlet he wore on the day in question, was in fact a swastika.
Mr Duncan said that the legislation allowed for the use of the symbol when it was used in connection to the one of those three religions referred to in the Crimes Act.
He asked whether she had seen and was aware of a tattoo of a Tibetan skull he wears on his back, as well as another tattoo, of a chrysanthemum, on his chest/neck area.
She did not know what a Tibetan skull looked like and had not called for expert input into that, Senior Constable Sculley said.
However, the officer's view was not relevant, Magistrate Janine Lacy said, and the meaning of the symbol came down to a common knowledge understanding of it.
It was an area of relatively untested legislation, Magistrate Lacy said, but she was satisfied that all of the elements of the charge were met. He will be sentenced on that charge, as well as for two counts of affray and participate in criminal group activity to which he has pleaded guilty, on April 5.
Two of his three co-offenders, Blair John Kelly, 36, who police say is the sergeant-at-arms of the Newcastle chapter of the Bandidos, and Koda Warren Tredinnick, 26, will also be sentenced on that day for charges including affray and participate in a criminal group activity.
In a separate hearing also held before Magistrate Lacy, a solicitor for Tredinnick, who had pleaded not guilty to participating in a criminal group activity, argued that while he was part of the group, the affray did not amount to a serious injury, or meet the threshold of 'serious risk of a serious injury'.
That was despite CCTV footage of the brawl from various angles, and a medical report for one victim who had been punched in the face, fell backwards and hit the ground, and was unconscious for about 15 minutes.
Police said the group of men were clearly involved in a horrifically violent act in the presence of women and children, and clearly act as a group, leave as a group, and return as a group.
It was clear they had made an agreement to go back to the hotel to commit unlawful violence and affray, police said.
The footage, played in court, shows Tredinnick leading the group of men back into the pub after the first affray, with a common purpose, Magistrate Lacy said.
A head strike "would of course do nothing else" but satisfy a court of the serious risk of serious injury, given that a single punch could lead to a fatality, Magistrate Lacy said, finding the offence proven.
The fourth man, Dylan Alwyn Griffin, 30, will return to court on April 12 for sentence after also pleading guilty to affray and participate in a criminal group activity.