Raw milk ‘not for sale’ in sham scheme

In Australia, it is illegal to sell unpasteurised ‘raw’ milk for human consumption. But that did not stop a couple of South Australian dairy farmers from Willunga Hill, south of Adelaide, establishing a scheme to bypass the legislation and sell what is effectively an untreated and potentially dangerous product.

The scheme has been described as a “sham” by a Magistrate hearing the case against them; a term repeated in the South Australian Supreme Court this year when the perpetrators appealed against their earlier finding of guilty.

And they have got away with it … at least for the time being.

Mark and Helen Tyler denied ever selling raw milk. What they did sell were shares in their cows. At $30 for one per cent of a cow, plus a boarding fee of $4 per fortnight, they could pick up a 1.5 litre bottle of raw milk per week.

When prosecuted, the Tylers denied that any sale had taken place. The shareholders were not buying milk, they said; they were picking up milk they already owned. It was not illegal to drink raw milk from your own cow.

The Magistrate hearing the case didn’t wear it, and found them guilty of selling raw milk. On appeal, the South Australian Supreme Court intrinsically agreed: “The very point of the cow share program is to conceal what is truly occurring, namely, the sale of unpasteurised milk to the public as a commercial undertaking. The cow share program is a sham.” The law against the sale of raw milk was meant to cover more than typical retail transactions.

“The sham nature of the arrangement is evidenced by the fact that every cow has the same price, namely $3000, notwithstanding that the value of a dairy cow will vary depending on characteristics of the cow, such as the amount of milk it produces.”

They appealed and lost again on the structure point but succeeded on other grounds. In non-lawyer parlance, they have won on a technicality.

The Supreme Court judge found that “The Magistrate could not have been satisfied beyond reasonable doubt that milk seized on 7 August 2013 was in fact milk for sale. Milk which had been sold was no longer ‘for sale’. The respondent had not excluded the reasonable possibility that the milk seized had already been sold and therefore was no longer ‘for sale’.”

Accordingly, he upheld the Tylers’ appeal on this ground.

He also found that there could not be a case against providing contaminated milk, another feature which is controlled in SA. The milk seized from a fridge could not be assuredly dated, meaning that it may have been kept unclaimed for some time, and therefore would naturally have been contaminated but not supplied.

But they are not off the hook.

While the Supreme Court Judge disagreed with how the Magistrate had handled the case, he was not prepared to acquit the farmers. Instead they must return to the lower court and face trial before another Magistrate.

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