KEY POINTS:
A trial, says Judge Neil MacLean, is not always about the truth.
It's about the Crown proving an allegation about someone beyond reasonable doubt. If it can't, that's the end of the matter: "That's an acquittal."
A judge does not then have the ability a coroner has to say "well, that's all very interesting but I'm actually more interested in this, that or the other thing, or would like to hear from that expert or this person."
This difference between the two processes is why the chief coroner, Judge MacLean, might hold inquests into the deaths of the Kahui twins in Auckland and that of Zimbabwean girl Charlene Makaza in Christchurch.
And after the acquittal of the man accused of shooting dead Hawkes Bay farmer Jack Nicholas, MacLean confirms this case, too, will be added to the list of high-profile, unresolved murders which will now be considered for inquest.
When MacLean first revealed his thoughts about holding inquests, it looked a bit as if he might be doing so to clean up a mess left by the acquittals of murder suspects in intensely public cases.
Not at all, says the long-standing district court judge and coroner who was appointed to the new position of Chief Coroner when the new Coroner's Act came into force last year.
Holding an inquest after a trial has finished is not uncommon. Sometimes an inquest will be held even if there is a guilty verdict, such as with the case of convicted killer Graeme Burton who shot and killed another man while on parole.
That inquest has been held; the decision has yet to be released.
The cases of the Kahui twins, Makaza, and now Nicholas, have left unfinished business.
There are unresolved medical questions in the children's deaths; each case saw a batting back and forth of evidence from prosecution and defence experts.
Instead of reaching definitive conclusions, the trials failed to answer the key question: What really happened?
What did Charlene die of if it wasn't sexual assault? Was it Aids? And what really went on in that house which led to the deaths of the twins? These are all questions still requiring answers, says MacLean.
An inquest, he points out, is not held to second-guess the criminal system or redress trials which have not been successful in finding guilt.
"But, like in the Makaza case, we can get a better feel for, on the balance of probabilities, what did she most likely die of.
"In the Kahui case it could well be, well, what actually happened.
"Not necessarily the standard 'beyond reasonable doubt', but what is the most likely scenario of what happened and when and how and why.
"And perhaps, but you don't know until you start to explore the matter, what, if any, lessons there are, so perhaps appropriate steps could be taken to make sure this doesn't happen again or is picked up earlier."
CORONERS will often make recommendations after inquests, perhaps that an agency should change the way it operates or communicates, but MacLean says under the old system those recommendations would frequently "die in the ditch".
There was no mechanism to ensure they were acted upon. Now, there is. Though still not binding, recommendations are posted on a public database, accessible through the Ministry of Justice website, so anyone can look them up and check on whether they have been acted upon.
It's early days and as of last week only three cases have been posted. Of the three, one involved the deaths of Brent and Rene Coombes who died last year at the railroad crossing on State Highway 1 at Ohingaiti near Taihape.
Their 5-year-old daughter, Reef, survived unscathed in the backseat.
The coroner made recommendations about how the crossing could be made safer - Transit NZ has begun work on a $10.5 million highway realignment project which will eliminate the crossing.
Another death, that of murderer James Kahu who died from natural causes at Wanganui Prison, is listed with recommendations which raise issues about medical files of prisoners and access to treatment.
The third is the case last year of Colin Chambers, 42, who died while bike-riding on the Bowenvale Track in Christchurch.
The advice from the coroner is for bikers to check a website outlining track difficulty and weather conditions.
Judge MacLean says the crunch for organisations will come if recommendations are not acted upon and a situation reoccurs. The organisation in question is then fair game for the media, he says.
Inquests are often driven by a relative or next of kin contacting a coroner, unhappy that a death remains unresolved.
He is currently considering two cases where next of kin or family have been in touch. One is that of Barry Coleman, who died at a strip club and though charges were laid, they were later dropped.
A similar case is that of Nicholas Munro who died after a fight outside a bar in Dunedin. Police decided not to prosecute.
For MacLean, who is both district court judge and coroner, the job of coroner can offer the greater rewards.
He talks about the case of Benjamin Thorne, a 13-year-old who died in 1996 after minor surgery on his knee in Tauranga Hospital to remove a ponga spike.
Benjamin, 13, developed an infection after the spike became embedded in his knee. Anaesthetist Margaret Hugel, aged 63, was charged with manslaughter.
She was acquitted and fought a legal challenge to prevent an inquest but lost. Judge MacLean was the coroner and though he criticised her for failing to supplying oxygen quickly enough, he also pointed out the 63-year-old had been on duty for more than 11 hours.
He recommended the College of Anaesthetists looked at the demands being placed on medical professionals, especially anaesthetists, then heard nothing further until years later he took a telephone call from the college inviting him to speak about the case at its Australasian conference.
"They had picked up the recommendation, unknown to me, and they had convened a session on sleep deprivation and the effects of inhuman rosters on people."
The judge still vividly remembers when, at the end of his address, a young anaesthetist got up from the back of the room, almost with tears in his eyes, and thanked him for raising the issue in an inquest and forcing anaesthetists to get to grips with such a worrying issue.
QUESTIONS
Charlene Makaza
Ten-year-old girl from Zimbabwe found seriously ill in her bed in Christchurch last year, died in hospital.
Police said semen was found on her underpants and that her uncle, George Gwaze, had sexually violated and smothered her.
His defence team said she had Aids, that the effect of Aids on young children can look like sexual assault, and that the tiny speck of semen was transferred in the wash.
VERDICT: NOT GUILTY.
Chris and Cru Kahui
Three-month-old babies from Mangere admitted to Starship Children's Hospital with serious head injuries, where they died.
Their father, Chris Kahui, was charged with their murder.
Medical evidence presented by the Crown put the timing of the injuries at the forefront of the case and putting Kahui at the scene.
A defence expert, however, said the babies could have been hurt hours earlier.
VERDICT: NOT GUILTY.
