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Podcast Background Briefing Was it an accident or murder? On New Year’s Eve, 1983, the body of Lewis “Buddy” Kelly was found on train tracks near Kempsey in New South Wales. Police said his death was not suspicious but his family is convinced there was foul play? About

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"The faster you can get to the body, the more information you're going to be able to get," forensic scientist Professor Maiken Ueland told Background Briefing.

It is just as important to find and take statements from witnesses as soon as possible.

Otherwise, the reliability of their accounts will gradually diminish.

"People's memories change over time," Detective Superintendent Scott Cook from the New South Wales Homicide Squad said.

"Sometimes people say one thing 30 years ago, and say something else today."

In his experience, Detective Superintendent Cook says officers have less than two weeks to crack a case before it goes cold.

"If we don't solve it in the first three to 10 days, it's probably going to be a long haul," he said.

"Cold cases are very difficult because the incident has generally occurred in another era, not just with different standards for policing but different standards within society."

Blood on the tracks

Police in regional New South Wales have been accused of failing to take these basic steps when investigating the mysterious deaths of two Indigenous boys decades ago.

The bodies of Lewis "Buddy" Kelly and Stephen Smith Jnr were discovered on train tracks in 1980s and 1990s, respectively.

The coroner examining Buddy's case concluded the 16-year-old had drunkenly wandered onto the railway before lying down. He was then struck by the Brisbane Limited Express.

Buddy Kelly's family rejected the findings of an initial police investigation that concluded his death was an accident. ( ABC News: Allan Clarke )

Buddy's family disputes this. They are convinced there was foul play, but there is no record of police investigating that theory at the time.

"What really hurts me is there's no justice," Buddy's sister Monica Kelly told Background Briefing.

"I believe that if Buddy wasn't Indigenous, if he was a non-Indigenous person on the tracks, something more would have been done."

The night before New Year's Eve, 1983, Buddy was out celebrating with friends.

Buddy Kelly was a keen tennis player and was due to travel to the USA to compete in a tournament before his death. ( Supplied )

Exactly how his lifeless body ended up on the train tracks is still unknown.

A 15-year-old who was with Buddy hours earlier, gave a statement to police.

According to the statement, Buddy went to the local skatepark about 8:00pm.

He met six other teenagers there. A few of them were drinking cheap port from flagon bottles.

At some point, a fight broke out between Buddy and another boy to whom we have given the pseudonym Tony.

The 15-year-old who spoke to officers said Tony hit Buddy over the head with a bottle.

Buddy was apparently too drunk or injured to walk to a pedestrian crossing near the railway bridge.

Two of the boys decided to leave him at the bottom of the stairs. That was the last time the 15-year-old witness saw Buddy alive.

After allegedly being struck over the head with a bottle, Buddy Kelly was left at the bottom of these stairs. ( ABC News: Allan Clarke )

At 5:17am the following morning, Buddy was hit by a train travelling at 75 kilometres per hour.

At the time of the accident, visibility was poor and the crew aboard the train thought they had hit a kangaroo.

The railway line through Kempsey in New South Wales where Buddy Kelly's body was found in 1983. ( ABC News: Allan Clarke )

An hour later, the driver of a second train passing through Kempsey made a grim discovery.

There were body parts strewn along the tracks.

Police who attended the scene began by interviewing railway staff.

They also spoke to three boys from the skatepark and two of Buddy's relatives.

The police did not interview any other potential witnesses, there was no autopsy, and no blood alcohol reading.

Officers concluded Buddy's death was an accident. He was in the wrong place at the wrong time.

Buddy's other sister, Tanya Kelly, said their parents, who have since died, initially accepted this version of events.

"They wouldn't believe anything else until we told them it could have been foul play," she said.

Tanya Kelly is convinced someone killed her brother and placed his body on the train tracks. ( ABC News: Allan Clarke )

Buddy's relatives ruffled feathers when they tried to persuade the police to reopen the case.

They were convinced some in the community were harbouring his killer.

This caused tensions between members of the region's Dunghutti and Gumbaynggirr families.

People once close to the Kellys began crossing the street when they approached.

Still, they were undeterred.

"We strongly believe that our brother was put on the track," Tanya Kelly said.

"That's why we're going to fight for him, our brother, until the very end."

Buddy's family recently found an ally in New South Wales Greens MP David Shoebridge who has asked police to reopen the case. ( ABC News: Allan Clarke )

Background Briefing managed to find Tony, the boy accused of striking Buddy with a bottle.

He reached out to the program through an intermediary who said he wanted to clear his name.

Tony is angry some residents in Kempsey have linked him to Buddy's death.

After agreeing to be recorded, he offered only a brief statement.

"That night, me and Buddy had a bit of a scuffle and he went his way and I went my way and then I heard about he passed away the next morning by a train," he said.

"That's the last thing I got to say about it."

Rumours of a second fight

In what was a brief and terse encounter, Tony then walked back inside his house and shut the door.

Buddy's sister Monica believes Tony was telling the truth.

Buddy's sister Monica Kelly believes race played a role in what she perceives to be shortcomings with the initial police investigation. ( ABC News: Allan Clarke )

She has been told there was another altercation that night, one not mentioned in any statements supplied to police.

According to a tip-off she received, her brother was involved in a punch-up at a party.

Monica took Background Briefing to the address.

"We were told at this house here, on your right there, was an 18th birthday that night," she said.

"Buddy had a fight in the backyard with somebody."

Buddy's brother, Keith Kelly, reckons he knows what caused the confrontation.

The information was given to him by a couple of relatives who recently stayed at his place. After drinking a few beers, the conversation turned to what happened that night.

"They started talking about my brother's case," Mr Kelly said.

One of the family members said they were at the party that night and saw everything.

Buddy's brother Keith Kelly was told the teenager was involved in a second fight before he died. ( ABC News: Allan Clarke )

This person could not be contacted, but Mr Kelly says they made a shocking claim.

"My brother tried to save somebody else from getting pack raped," he said.

"Then it turned onto him and they raped and killed him."

When asked why this information was never taken to police, Mr Kelly said his relative was worried the alleged perpetrators would retaliate.

Buddy's family recently gathered in Kempsey to update Background Briefing on their campaign to have his case re-examined. ( ABC News: Allan Clarke )

"They are frightened of who's involved," he said.

"There's fear around it."

Buddy's sister Tanya agreed the situation was dangerous.

"Some of the family members have already been threatened to stop the case," she said.

"We're not gonna stop at all."

In 2014, a legal team agreed to help Buddy's family collect enough evidence to convince police to chase this lead.

In the process, the Jumbunna Indigenous House of Learning uncovered what it said were a series of problems with the initial investigation.

The organisation wrote to the New South Wales coroner outlining its concerns.

"We note police included in their statement to the coroner a significant amount of opinion evidence," the letter read.

"It does not appear the police ever considered, or investigated, the involvement of others in the death of the deceased."

In response, the coroner directed police in Kempsey to make further inquiries. Background Briefing has obtained that police report.

The report suggests multiple key witnesses refused to speak to officers, limiting their capacity to investigate thoroughly.

For example, a woman who allegedly told Buddy's family she never left his side on the night of his death is quoted as saying: "I know nothing."

Meanwhile, a prison inmate denied telling his cellmate he had information pertinent to the case.

Police in New South Wales say they investigated reports Buddy tried to stop a sexual assault but found no concrete evidence. ( ABC News: Allan Clarke )

Responding to Jumbunna Indigenous House of Learning, the coroner said, given the time elapsed, it was too difficult to separate rumour from fact.

"Due to the length of time since the incident and the extent to which it has been discussed among some community members, the memories of witnesses have understandably degraded or become overlaid with the accounts of others," the letter read.

"As a result, only objective or scientific evidence is likely to be sufficiently reliable to lead to significantly different findings and no such evidence is available. Therefore the request to re-open this matter has been declined."

NSW Greens MP slams police investigation

Police have since told Background Briefing they revisited the case again this year to verify reports Buddy tried to stop the sexual assault of a young girl, but nothing came of it.

"The since completed, exhaustive inquiries, have not progressed the matter further or provided any new leads for investigation," the statement said.

Just as they were losing hope, Buddy's family has found an ally in New South Wales Greens MP David Shoebridge.

They approached the barrister and spokesperson for Aboriginal justice earlier this year.

He thinks there were problems with how officers recorded statements from witnesses in 1983.

"To call it rudimentary would be polite," he said of the initial police investigation.

"It was amateur. It was lightweight. It was cursory. It was dismissive."

Of particular concern to Mr Shoebridge is the statement from the 15-year-old at the skatepark.

The signatures of two other boys appear on the bottom, but they are not quoted in the document.

"They've never actually officially given independent recollections of what they saw that night or what they think happened," he said.

One of Australia's most respected detectives is similarly troubled by the apparent failure to record statements from the pair.

Clive Small, a former New South Wales Assistant Police Commissioner, was instrumental in the capture of serial killer Ivan Milat and was working as a senior detective at the time of Buddy's death.

"With three witnesses, I would have expected there to be three statements," he said.

Visibility was poor when the Brisbane Limited Express struck Buddy's body on New Year's Eve in 1983. ( ABC News: Allan Clarke )

Mr Small said taking separate statements should have been standard practice.

He described the method used by police in this case as a "scrum down".

The Wood Royal Commission into New South Wales police corruption found the practice reduces the chances of adequately investigating a case.

Mr Small says the use of a scrum down by officers examining Buddy's death could have far reaching implications.

"If someone was to be charged with murder and that statement was challenged, what you could be doing is actually throwing out the value of three witnesses in one hit," he said.

Mr Shoebridge agrees. He has asked the New South Wales Police Commissioner Mick Fuller and Police Minister Troy Grant to consider reopening the case.

If successful, he said Buddy's family does not want Kempsey police to handle it.

"They want it done by somebody else and I firmly believe this needs to be investigated or at least closely oversighted by the State Crime Command and their homicide squad," he said.

"I think there's a murderer out there and I think there's a murderer who should be brought to justice and there's a family that deserves that."

Buddy's relatives are not alone in their quest for justice.

Across Australia, there is an unfortunate club of families who feel the death of their loved one was not sufficiently investigated by police.

Earlier this year, ABC Unravel's Blood On The Tracks podcast examined the case of Mark Haines, whose body was found on train tracks near Tamworth in 1988, five years after Buddy's death.

Stephen Smith Jnr's body was also found on train tracks in regional New South Wales. ( Supplied )

In 1995, Stephen Smith Jnr's remains were found on a railway line just outside Quirindi, around 300 kilometres west of Kempsey.

The similarities between the three cases are striking.

All three teenagers had been drinking with friends the night before they died.

Their deaths were judged to be accidents, although none of their families accept this.

Professor Thalia Anthony from the University of Technology Sydney is a leading authority on Indigenous people and the law and believes racial bias played a role in the perceived shortcomings of historical police investigations.

"There's this view that Aboriginal people, if they are in harm, it's self-inflicted, it's their own fault," she said.

"It means that police don't start to ask the questions you need to ask straight away, which is, is there some foul play?"

The bodies of Buddy Kelly, Stephen Smith Jnr, and Mark Haines were separately discovered on train tracks under similarly mysterious circumstances. ( ABC News: Allan Clarke )

Professor Anthony has called on police to change their policies to ensure all mysterious deaths involving Indigenous Australians are thoroughly investigated.

"I think the police need to have a proper disciplinary system where there are ramifications for not following all inquiries, for not treating Aboriginal witnesses with the same respect as other witnesses," she said.

Between 1986 and 2009, there have been around six inquiries into various aspects of police relations with Indigenous Australians, each focusing on different states and territories.

They each concluded that Aboriginal people had a well founded fear of bias among law enforcement officers.

In July this year, Western Australian Police Commissioner Chris Dawson publicly acknowledged the problem.

"I accept that police involvement in historical events had led to mistrust in law enforcement and the damaging of our relationship," he said.

Professor Anthony says this was vindication for many Indigenous families, including Buddy Kelly's.

"I think that's why families have felt the need, when loved ones have been killed or gone missing or simply have died without anyone undertaking a proper investigation, to make their struggle public," she said.

"They felt the justice system let them down and they demand governments do something but often it's too late."