Mary Anne Fagan - He Didn't Tell Police

Police had the omissions, the contradictions, the missing time, the money, the alibi problem, and the forensic traces. If that still wasn’t enough, what was missing?

On the morning Mary Anne Fagan was murdered, three council workers were repairing the road outside her Armadale home.

One of them had spoken to her directly.
One of them later admitted making graphic sexual remarks about her while sitting on a fence facing her house.
One of them left the worksite during the period investigators came to treat as the murder window.
And one of them would later sit through hours of homicide questioning as detectives tried to pull apart his account of that day.

His name was “James”.

Across statements, interviews, forensic evidence, witness accounts and the 1979 inquest, investigators believed a pattern had emerged: omissions, contradictions, unexplained money, a disputed bookmaker alibi, a boot print, microscopic bitumen-like flecks found in the house, and a man the Coroner would later describe in open court as “far from honest”.

By the end, the case against “James” looked substantial.

And yet, no charge followed.

In this instalment of Civilian Sleuths, we follow the evidence that made “James” the focus of the investigation — and the unanswered gap that has remained for more than 48 years.

Content warning: this episode discusses the murder of Mary Anne Fagan and includes references to sexually explicit language quoted from sworn inquest testimony. Listener discretion is advised.

If you have information about the murder of Mary Anne Fagan, contact Victoria Police Crime Stoppers on 1800 333 000, or submit a confidential report online at police.vic.gov.au/crime-stoppers.

Transcript

Content warning: this series discusses the murder of a woman in her home. This episode includes references to sexually explicit language used by a witness, quoted from sworn testimony given at the inquest. The language is offensive and is included only because it forms part of the evidentiary record. Listener discretion is strongly advised. If you or someone you know needs support, contact Lifeline on 13 11 14, or 1800 RESPECT on 1800 737 732, or your local crisis service.

 Ninety minutes before Mary Anne Fagan was murdered, two council workers were sitting on a fence in her front garden.

 The fence faced her house.

One of them was talking about her body. About her breasts. About what he imagined doing to her.

His conversation was explicit. He spoke about her in graphic sexual terms to the man beside him.

Ninety minutes later, Mary Anne Fagan was dead.

Two months later, the man who held that conversation sat across a table from a homicide detective in Russell Street.

He sat there for, he stated, over sixteen hours.

By the close, the homicide squad believed it had assembled the case to charge the man in connection with Mary Anne’s death.

It never eventuated.

So how did it happen that the man police believed killed Mary Anne Fagan was never charged with her murder?

Part 4 - Mary Anne Fagan

By half past ten on the morning of Friday 17 February, 1978, three things had happened on the corner of Bailey Avenue and Dandenong Road, Armadale.

A council road crew had arrived to repair a damaged section of roadway.

Mary Anne Fagan had returned from dropping her son at school. She had spoken to one of the workers --- a labourer --- about silt washed into her driveway from a burst water main.

And a uniformed police constable, driving through Bailey Avenue, had seen her standing in her front garden.

He was the last person confirmed to have seen her alive.

The investigation, when it came to construct its case, would settle on a time-of-death window that placed her killing in the late morning, between approximately 10.30 and 11.30am. That window was narrower than the forensic evidence strictly permitted. But it was the window the investigation came to rely on. And it was the window in which one of the men on the corner could not be accounted for.

His name was "James".

*********

The crew that morning was three men.

"Robert" was 25 years old. A single man, living with his parents in East Malvern. He drove the truck. Of the three, "Robert's" movements are the most independently verifiable --- he spent most of the morning away from the site collecting materials, and his arrivals and departures were observed by others.

"Ken" was 42. A single man, living in a self-contained flat in East Malvern. Twenty-two years with the council. He drove the back hoe.

"James" was 43. Living with his de facto partner, "Raelene", and their three-and-a-half-year-old daughter, in a flat in Prahran. He had been at the council for approximately three months. He was the labourer --- and by his own description, a sort of unpaid crew leader. The job card came to him. He directed the work on the ground when the truck driver and the back hoe operator were elsewhere.

"James" did not hold a driver's licence. Of the three men on the crew, he was the only one who could not drive either of the worksite's vehicles. He depended on "Robert" for transport between the worksite and the depot. When he moved during his working day, beyond the immediate corner, he moved on foot.

These three men were assigned the Bailey Avenue job that morning by the yard foreman, "Alan". The repair was straightforward. A burst water main, fixed days earlier by the Melbourne and Metropolitan Board of Works, had damaged a section of the roadway. By the council crew’s estimation, it would take about three hours for a private contractor to complete.

They left the depot at 7.45am.

By nine o'clock, the damaged section had been cut out with jack hammers, the rubbish loaded into the truck, the hole cleaned. They needed crushed rock from the depot. "Robert" and "Ken" went together to get it.

"James" remained at the site.

It was at approximately this time --- around nine o'clock --- that Mary Anne Fagan returned from the school run, turned into Bailey Avenue, and spoke to "James" about the mess in her driveway.

She came to him.

She singled him out from the three workers. She spoke to him directly, alone, at her own property. By "James's" own account, given much later under questioning, she was concerned about the silt washed into the rear of her driveway by the burst water main. The conversation was brief. Functional. The kind of conversation a homeowner has with a council worker.

But it was the moment of contact.

"Robert" and "Ken" returned with the crushed rock at about half past nine. They tipped it into the hole. Morning tea followed, just some simple sandwiches and coffee. "Robert" had stopped at a takeaway shop on the way back. "James" and "Robert" sat in the truck. "Ken" sat in the back hoe.

After morning tea, they levelled the crushed rock. Then "Robert" left to collect the hot mix from a depot in Springvale --- a round trip of approximately an hour and a half. Before he left, he told "James" and "Ken" that if he was not back by half past eleven, they should head back to the depot for lunch in the back hoe, and he would pick "James" up from there.

"Robert's" departure meant the truck was gone. "Ken" still had the back hoe --- he would later drive it back to the depot at lunchtime. "James", without a licence, did not have that option. If he wanted to move during the hour and a half "Robert" was away, he had to walk.

Both men did leave the site, separately and on foot, during that period. "Ken", up a lane off Gladstone Avenue. "James", down Dandenong Road. Neither was at the worksite for the bulk of the morning's middle hour.

Shortly after "Robert" left, the foreman "Alan" arrived. It was approximately a quarter past ten. "Alan" inspected the job, discussed what remained, and walked with "James" down toward the Fagan property to look at the rubbish washed into the rear driveway area.

"Alan" left at approximately half past ten.

And then the site emptied.

*********

Before it emptied, something else had happened.

Sometime before 10.30am --- after the rock had been tipped, before "Alan" arrived --- "James" and "Ken" sat down on a fence.

The fence was the boundary to the Fagan property. On "James's” own admission, given two months later in Russell Street, they sat facing 575 Dandenong Road. He and "Ken" were looking at her house.

And while they were looking at her house, "James" began to talk.

He said Mrs Fagan was "a good sort."

He said he wanted to "knock her off" --- in the street language of the day, to have sex with her --- and "bite her on the tits."

He said: "when I knock them off they stay knocked off, like they have been hit by a plate full of porridge."

And then he said something else to "Ken". "Ken", a forty-two-year-old man who had told police he had never had sex with a woman in his life. "James" admitted at inquest, that he said: "I might be able to get you your first."

Investigators regarded the conversation as significant. It had taken place that morning on a fence facing the Fagan property, by a man who had spoken to Mary Anne Fagan directly only a short time earlier and who would later become the investigation's prime suspect.

The man himself, in the witness box at the inquest, said something different.

The crude expressions, he said --- the bucketful of porridge, the language about biting --- were borrowed expressions. He had picked them up years earlier, from a man he knew that had worked in the Navy. He used them rarely. By his own estimate, perhaps two or three times a year. They were locker-room expressions, recycled across years of male company, applied to women in general. The conversation that morning was, in his own words at the inquest, "a terrible shocking conversation." He did not deny having had it. He did not minimise the language. He said only that the expressions were not original to him, were not unique to that morning, and were not the language of a man whose sexual focus was building toward a particular woman.

His partner of eight years, "Raelene", would later give evidence that she had never heard him use the expression about biting in all the time they had been together. She had heard the porridge line once --- told as a joke, attributed to a man from Horsham. She said her partner did not, at home, "speak filth."

The investigation read it one way.

The men closest to him --- and the man himself, in the witness box --- read it another.

What the conversation meant is one of the questions this case turns on. That it happened, that morning, on that fence, is not in dispute.

*********

At approximately half past ten, the site emptied.

"Robert" was gone --- he had been gone since shortly before ten, on his way to Springvale.

"Alan" left, after walking the rear driveway with "James".

"Ken" left. He said he had gone to a small alley up the road, to vomit after a night of drinking.

And "James" left.

Of the four men who had been at the corner that morning, three placed themselves somewhere else for the next forty-five minutes. "Robert" was on the road to Springvale. "Alan" was back at the depot. "Ken" had walked to the alleyway to vomit.

Only "James's" account changed.

Three times.

*********

In his first statement --- given the evening of Mary Anne’s murder on 17 February, at the Armadale Hotel, to a uniformed constable, while he had been drinking --- "James" said he had worked on the road all day and seen nothing. He said he had gone to knock on the front door of 575 Dandenong Road before lunch but changed his mind. He said nothing about speaking to a lady. He said nothing about going into her driveway. He said nothing about a blue terry-towelling hat. He said nothing about leaving the worksite alone. He said nothing about a bookmaker.

Three days later, that first statement began to come apart.

A Melbourne newspaper had carried, over the weekend, a request from the homicide squad. Anyone who had seen a workman in a blue terry-towelling hat speaking to Mrs Fagan that morning should contact police.

A witness had come forward. A woman who had been waiting at the tram stop on Dandenong Road that Friday morning. She had seen Mrs Fagan drive her Holden station wagon from Dandenong Road into Bailey Avenue at about a quarter past nine, stop, and speak to a workman in a blue terry-towelling hat.

That workman was "James". He was the only man on the crew wearing such a hat.

On the Monday morning, his workmate "Robert" brought "James" into Malvern Police Station. "James" now made his second statement. Yes, he said, he was the man in the blue hat. Yes, he had spoken to a lady in a car in Bailey Avenue. And yes, he had walked with her into the open driveway of her property to inspect the silt washed up from the burst water main.

He had not mentioned any of this on Friday evening.

By the time the third interview came, in April, the investigators had come to regard the omissions in “James’s” statements not as oversight, but as concealment.

*********

In his third interview --- on 20 April 1978, conducted by a detective sergeant from the homicide squad at Russell Street --- the account changed again.

The interview ran through the day and into the night. The initial detective left the office at 11.15pm; at ten past midnight a second detective came in and began again.

Across that day, "James" admitted, in sequence:

That he had left the worksite during the morning.

That he had gone to the Railway Hotel in Glenferrie Road, to use the toilet.

That he had gone to the milk bar next door to the Railway Hotel, to buy a packet of Benson and Hedges.

That he had then gone to a house in Railway Avenue, Armadale, to visit his SP bookmaker --- a man he knew only as Uncle "Con".

And, eventually, that he had sat on a fence outside 575 Dandenong Road, with "Ken", and had a sexual conversation about the woman who lived there.

Each admission contradicted what he had said two months earlier.

The detective sergeant read each contradiction as a piece of the architecture of a man revealing only what he could no longer hide.   Each new admission had emerged only after the previous version became difficult to maintain.  He pressed the timing. The conversation, on the evidence, had taken place that morning, before he left the worksite. The decision to approach her door, on "James's” own account, had taken place sometime later that morning. The door belonged to the same woman they had been discussing on the fence outside her property earlier that morning.

"James" maintained the two were unrelated.

*********

The exact length of his absence from the worksite was critical.

The senior detective on scene had a working theory about the time of death. Mrs Fagan had spoken to her husband on the phone earlier that morning. The pathologist who examined the body that evening estimated, from the body temperature and the state of rigor, a window of several hours within which death could have occurred. The investigators narrowed that window. They placed the killing between half past ten and half past eleven.

It was put to "Ken" in the witness box, almost as a flat statement of fact: "I am putting it to you that Mrs Fagan was killed between half past ten and half past eleven that morning."

That was precisely the window in which "James" could not be accounted for.

The window the investigation chose was narrower than the pathologist's evidence strictly required. The pathologist's actual finding permitted death any time between approximately eleven in the morning and two in the afternoon. The investigation chose the early end of that range. Whether they chose it because the evidence pointed there, or because their suspect was unaccounted for in that period, is one of the questions this case has carried unanswered for nearly fifty years.

*********

The alibi for the gap rested on Uncle "Con" --- the retired SP bookmaker of Railway Avenue, Armadale, who had been an illegal starting-price bookmaker for many years.

"Con" gave a statement to detectives. He gave evidence on oath at the inquest. His evidence was, in two specific respects, presented by the investigation as devastating to "James's" account.

First --- and this was the line the detectives kept returning to --- "Con" said that "James" had always come to his home after five p.m., usually on a Thursday or a Friday, to pick up his money. He said "James" had never come to collect money from his home at any time before five p.m.

Second, "Con" said that as of February 1978, "James" owed him forty dollars and had not been seen at the bookmaker's house for some time.

On the face of it, the denials were complete. The man "James" said had paid him out at half past ten on Friday morning was a man who, on his own sworn evidence, never paid out before five p.m.

To investigators, the bookmaker evidence became another contradiction in a widening pattern.

*********

Then the money.

"James" had returned to the worksite that afternoon with cash he could not explain.

But across the course of the long interview with the detective sergeant, "James" gave at least four different accounts of where the money came from.

The first: he had won it at the races, and had been paid by the bookmaker.

The second: he had had it from earlier.

The third: he didn't know where it came from.

The fourth, given under direct pressure: "I didn't have money." 

Four positions on a single question across over sixteen hours of questioning.

The investigation read the shifts as escalating deception.

*********

Across the morning of 17 February 1978, the three council workmen had been laying hot bitumen mix on the road repair. There was a tar pot --- a small open vessel of hot bitumen --- on the footpath outside the Fagan property. "James", as the man on the footpath, was the closest to it.

In the front bedroom where Mary Anne Fagan was found, her clothing was sent to the Forensic Science Laboratory for examination. On a singlet, the forensic scientist found microscopic dark flecks. The flecks, he reported, "appeared and behaved like" bitumen.

The investigation read the finding as evidence linking "James" to the scene. The flecks behaved like the material "James" was working with that morning. The material that would have been on his hands, his clothes, his boots, through the working day.

*********

And on the driveway between the rear gate and the garage of the Fagan property, photographed by the crime-scene crew the same evening, was an industrial-soled boot print. The print led from the garage area toward the gateway into the back yard.

"James" was wearing industrial-soled work boots that day. Police seized them from him on the 11th of April.

The boot print was consistent with "James's" boot type. 

The boot print could have been left at any time during the morning when the workmen had reason to be at the rear of the property. “James” had walked down the rear driveway twice that morning by his own admission – once at about 9.15am, when Mary Anne herself had shown him the silt washed up from the burst water main, and a second time at about ten o’clock, when the foreman “Alan” walked the same path to inspect the same rubbish.  On the first of those visits, “James” had, by his own description, tested the depth of the sludge with his boots while in the driveway.

The interview transcript records his response when the bitumen evidence was put to him.

The investigators said: "Tar has been found on clothing that was in the room where Mrs Fagan was killed. Can you offer any explanation for that?"

"James" said: "No. We didn't go into the house."

The investigators responded with: "I put it to you you didn't get the money from the SP. You got it from Fagan's house."

"James" said: "No. I did not go into house. Never even knocked."

*********

The interviews continued over days and weeks. By the end of the process, the investigation believed it had assembled a coherent pattern of contradictions, omissions and physical evidence linking "James" to the murder of Mary Anne Fagan.

*********

Across that day in Russell Street, the architecture of "James's" statements came apart.

The bookmaker alibi: contradicted by "Con".

The worksite alibi: contradicted by witnesses who had seen him absent.

The sexual conversation: concealed for two months, admitted only under sustained questioning.

The thirty dollars: described in detail by his own workmate, denied by him in at least four different ways.

The front door he had said he had not knocked on was the front door of a woman who had been murdered inside that house within several hours of him being last seen near it.

The detective sergeant put it to him directly.

"I put it to you that you have told these untruths and left things out to conceal your involvement in the death of Mrs Fagan."

"James" denied it.

It was put to him again, on a different formulation.

"I put it to you that you were involved in the death of Mrs Fagan."

"James" said: "No. No. Not me. I couldn't hurt anybody."

When asked, finally, whether he had killed her, "James" again said no.

He said: "I want to go home. Charge me or let me go."

The interview ended.

And he was not charged.

*********

A council worker named "Frank" --- a forty-eight-year-old who had known "James" for most of the fourteen months he had been at the council --- gave evidence that added one further detail. On the evening of the murder, "James" had paid "Frank" five dollars at the Armadale Hotel. "Frank" believed it was repayment of a debt, possibly from the previous week.

That was the statement "Frank" gave to police in 1978.

At the inquest, under cross-examination, "Frank" could not confirm the transaction. He could not be sure whether "James" had paid him five dollars, or whether he himself had given "James" three. He could not be sure which night the transaction had happened. He could not be sure that his statement to police had reflected what he actually remembered at the time. "It is that long ago," he said, "I just forget."

The Coroner heard the statement. He also heard the witness withdraw it.

*********

The coroner’s own working notes --- found on a page in the coronial file --- record the assessment in eleven blunt words.

"Statements true. Subsequent statements. Had not told the police the truth."

That note was written about "James". And by April 1978, by the close of the long interview, the homicide squad believed it. Not in his first statement at the Armadale Hotel on the night of the murder. Not in his second statement six weeks later. And by the time investigators sat him down on 20 April 1978, the distance between what "James" had said and what police believe had actually happened was becoming vast.

*********

There is also the question of the screams.

Two independent witnesses said they had heard screams from the direction of the Fagan home in the early afternoon. A builder working directly behind the property heard a muffled scream. A woman in a first-floor flat next door heard a loud scream lasting four to five seconds.

Both gave their times by estimation; neither had been wearing a watch. The woman in the flat, pressed at the inquest, moved her own estimate and conceded she had been unwell and under strain at the time --- she accepted it was possible she had imagined it. The builder placed it between one o'clock and half past, but said he could not be sure of the time. 

Their evidence, given on oath, went into the case file as evidence of screams in the early afternoon.

At that time, the three council workers were back at the worksite after lunch. They were laying hot mix, working with rollers and rakes. All three said they heard nothing.

The investigation read the screams as evidence the killing had been in progress in the afternoon, while the workmen were present and working. The screams placed the men closer to it, not further from it.

*********

The inquest was held on the 19th and 20th of June 1979. The Coroner heard from the homicide detectives, the forensic scientists, the witnesses who had seen Mrs Fagan that morning, the workmates, the bookmaker, the husband, and from "James" himself in the witness box for the better part of a day.

He delivered his finding on the afternoon of the second day.

The finding was an open one --- that Mary Anne Fagan had died from haemorrhage from multiple stab wounds, feloniously, unlawfully and maliciously inflicted by a person unknown. No individual was charged. No individual was named in the formal Inquisition.

But in delivering it, the Coroner had something to say about the evidence he had heard.

He said the evidence of the three Malvern Council workmen who had been doing road repairs near the Fagan household on the day of the murder was --- and these were his words --- "to say the least, not very satisfactory."

He went further. One of those three witnesses, he said, had been --- and these were the Coroner's words again, picked up the next morning as the headline in a Melbourne newspaper --- "far from honest with the information he gave to police."

He named the witness. He named "James".

The next morning, the newspaper headline ran: “Fagan inquest told evidence in doubt”.

*********

This is the weight of the evidence as the investigation, by June 1979, understood it.

Sixty odd pages of one investigator’s interview with "James" alone. A further forty pages of the later interviews with "James" and "Ken". Cross-examination at the inquest that ran across two days. Sixteen or seventeen hours of questioning in one sitting, more across the months that followed the murder, by "James's" own count.

By the close of those processes, the case the homicide squad believed it had assembled was this:

A man who had been on the corner that morning.

A man who had been singled out and spoken to by Mrs Fagan, directly, at her own property, shortly before he sat on a fence opposite her house and made sexual remarks about her, in graphic terms, to a colleague.

A man who had then left the worksite during what the investigation came to treat as the murder window.

A man whose work material --- bitumen --- had appeared, in microscopic flecks, on clothes in Mary Anne Fagan’s home, where she was killed.

A man whose industrial-soled work boots were consistent with the print at the rear gate of her property.

A man who had returned to the worksite with money he could not consistently explain --- and gave at least four different accounts of where it had come from across many hours of questioning.

A man whose alibi for the missing forty-five minutes had been contradicted, on oath, by the named other party.

A man who had lied to police on three separate occasions, across three separate statements, to three separate detectives.

A man whom the Coroner, in open court, had named as far from honest.

The coroner’s working note rendered the assessment in blunt words: "Statements true. Subsequent statements. Had not told the police the truth."

The Coroner found the evidence of the council workers unsatisfactory.

A senior officer connected to the investigation would tell a Melbourne newspaper, almost 23 years afterward, that the original investigation's failure to question the workmen properly in the first hours had been a serious flaw, and that the men were "either suspects or potentially vital witnesses."

By April 1978, the investigation’s view of the man at the gate --- the photofit witness sighting that had dominated the first two months of the investigation --- had also shifted. The RAAF parades were winding down. The photofit had produced no name. The new head of homicide had concluded that the witness sighting was, almost certainly, mistaken identity.

The case the homicide squad believed it had assembled against "James" was substantial. The interrogation had run, by "James's" own estimation, for sixteen or seventeen hours in one sitting, with more across the months that followed. By the close, the squad believed the man at the table had not given them the truth about a single material question.

The Coroner understood why.

The newspaper headline the next morning carried it into the public record.

And yet.

He was not charged.

He was not charged in April 1978. He was not charged after the brief of evidence had been worked through. He was not charged when the inquest, in June 1979, found the evidence unsatisfactory and named him in open court as far from honest. He was not named as the killer when the case was reopened in 2001.

“James” had told investigators “"I want to go home. Charge me or let me go."

Ultimately, that’s exactly what happened. He was never charged.

*********

For over 48 years, the investigation has not had an answer to that gap.

"He didn't tell the police the truth."

That note was written. The case was built. The Coroner spoke the words in open court. The headline ran the next morning.

And nothing happened.

Join us in the next instalment, where we take the evidence apart piece by piece, and put it to the test, to see what holds up with the constraints we know in the case; and ask whether the case that hardened around “James” can actually sustain the weight placed upon it.

If you have information that could assist police in relation to the murder of Mary Anne Fagan, please contact Victoria Police Crime Stoppers on 1800 333 000, or submit a confidential report online at police.vic.gov.au/crime-stoppers.

Some names and non-essential identifying details have been changed for privacy. All core events and timings are drawn from publicly available records, inquest materials, and contemporaneous reporting.

Unsolved. Unforgotten. Unfinished.