Despite calling their cowshare program a “scam,” Australia’s Supreme Court has ordered a retrial of raw milk dairy farmers Mark and Helen Tyler over their sale of raw milk. The Tyler’s dairy is located in Willunga Hill, which is south of Adelaide. A Magistrates Court had found the couple guilty of one count each of selling food in contravention to the food code and failing to comply with a requirement of the food standards code in April and May 2013. They have not been sentenced. The court’s decision to reconsider the Tyler’s convictions is a break from Australia’s recent crackdown on raw milk. After a three-year-old boy in Victoria died in late 2014 from drinking raw milk sold as cosmetic “bath” milk, health officials have forced producers to add a bittering agent to milk sold for such uses. Additional actions are scheduled to be considered next month at a meeting in Canberra.

The dairy farmers getting a new trial sold unpasteurized milk to shareholders of its cows, a common scheme worldwide for skirting bans against the sale of raw milk. Shareholders paid $30 for a 1-percent share in a cow, which entitled them to a weekly share of the milk produced by the cows in the herd. Shareholders also had to pay a $4 boarding fee every two weeks before taking their milk. The high court determined that the trial magistrate had rightly found that the Tylers had indeed sold the milk, but they stated that it was accomplished by an unfair trial. “The very point of the cowshare program is to conceal what is truly occurring, namely, the sale of unpasteurized milk to the public as a commercial undertaking,” said Justice Tim Stanley. “The cowshare program is a sham.” Another justice said the couple had faced an unfair trial because the procedure adopted by the magistrate meant that one of the defendants gave evidence before the conclusion of the prosecution case “in circumstances where the likelihood is that (she) otherwise would not have given evidence.” The high court found that “conduct of the trial by the magistrate” had “deprived” the defendants of the right not to call or give evidence. For that reason, justices set the convictions aside and and permitted the retrial. The trial court was also told that, when the matter is heard again, to determine whether the raw milk was for sale or if it had already been sold.

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