Robert Burke, alias Clusky, received the ultimate penalty for the death of Henry Facey Hurst. His ill-fated trip to Diamond Creek had sent shockwaves through Victoria, and as he sat in Melbourne Gaol awaiting his date with the hangman there were moves to encourage the executive council to grant a reprieve. This was not uncommon as public opinion was starting to side against capital punishment. Indeed, there was reason to believe that Burke’s crime was little more than a case of self-defence gone wrong. The following 1866 article details the meeting that was meant to bring about a commutation of Burke’s sentence.
Leader (Melbourne, Vic. : 1862 – 1918, 1935), Saturday 1 December 1866, page 8
THE CONVICT BURKE.
A public meeting was held at the Mechanics’ Institute on Monday evening, for the purpose of adopting a petition to his Excellency the Governor praying him to commute the extreme sentence passed upon the convict Burke for the murder of Hurst, into imprisonment for life. The building was densely crowded. Mr. Ambrose Kyte was called to the chair. He said he regretted to find that this movement was not supported by ministers of religion, who ought to be the foremost in any work of mercy. He briefly reviewed the evidence brought forward at the trial of Burke and pointed out what to him seemed redeeming qualities in the man. He characterised the conduct of Hurst as rash, and asserted that, had he been less valiant, more circumspect, and not exhibited so strong a desire to capture a bushranger “all to himself,” he might have still been alive, and the worst would have been that Burke would in all probability have been now following the pursuit of bushranging in New South Wales. He pointed out, from the evidence given by Miss Hurst, that Burke purposely passed by an opportunity of shooting Hurst, as she swore to his covering her brother with a pistol before the gun was raised with which Hurst fired at Burke. After paying a tribute of respect to the impartial manner, in which the Attorney-General put the case against the condemned criminal, and arguing that the intention of the recommendation of the jury to mercy meant that his life should be spared, he read the petition which it was intended should be presented to his Excellency, praying for a commutation of sentence, which was to the following effect: — “May it please your Excellency, — On the 17th November, 1866, Robert Burke was tried and sentenced to be executed for the murder of Henry Facey Hurst, and at the same time was recommended by the jury to mercy, on the ground that at the time he entered the dwelling of the unfortunate man, Hurst, he had no intention whatever of committing the dreadful crime for which he is condemned to suffer. Your petitioners are under the impression that the deceased was not only the first to fire, but by his loading and appearing with his gun, was to a certain extent, the aggressor. Your petitioners therefore, pray, &c., &c.” A gentleman in the room said the petition did not state exactly the ground upon which the jury recommended Burke to mercy, which was that Hurst fired first. Mr. Kyte thought there was not any material difference between that statement and the substance of the petition, which was therefore suffered to remain unaltered. Mr Burtt, M.L.A., moved the adoption of the petition, complaining also of the absence of those who were paid for the salvation of souls, who should have been present on such an occasion. Mr. Kent seconded the motion, which was supported by Mr. Myles Garrett Byrne, who favored the meeting with some reminiscences of constable Hall, one of the witnesses against Burke, who, he said was a man whose testimony was wholly unreliable, an opinion he had formed from being professionally engaged in several cases in which constable Hall was a witness against his client. The adoption of the petition was then put to the meeting, and only one dissentient hand held up, whereupon the meeting ordered him to be turned out, and the individual was most unceremoniously handed down stairs amidst cries of ”He’s the hangman.” Throughout the remarks of the chairman, and the subsequent speakers, several pertinent, observations were interpolated by persons adverse to the object of the meeting, which were very nearly leading to a disturbance, the chairman having to remind his audience that it was not a political meeting they were attending, but one affecting the life or death of a fellow creature. A vote of thanks to the chairman, terminated the proceedings.
The petition was on Tuesday handed to the hon. the Chief Secretary by Messrs Kyte and Burtt, M.L.A.s, who were accompanied by a few gentlemen.
Mr Kyte said the petition had within a very short period obtained something like 7000 signatures, and he desired that the Chief Secretary would without delay submit it to his Excellency the Governor.
Mr. McCulloch undertook to lay the petition before his Excellency in the course of the afternoon, and make the deputation acquainted with his Excellency’s reply thereto.
The petition was afterwards submitted to his Excellency, and after mature consideration, the following reply was received by the gentlemen who presented it to the Chief Secretary : —”Private Secretary’s Office,”27th November, 1866.”Gentlemen, — I am directed by the Governor to acknowledge the receipt of the petition forwarded by you, praying for a mitigation of the sentence passed on Robert Burke, for the murder of Henry Facey Hurst. In reply, I am directed further to state that the case has received the fullest and most anxious consideration, and I am to convey to you the expression of His Excellency’s regret that the circumstances of the case are not such as to warrant the exercise of the prerogative for the mitigation of the punishment imposed by the law. I have, &c,”H. C. Manners Sutton.”