Spotlight: The Burke Petition

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.

Mechanics’ Institute, Melbourne by Arthur Willmore, 1862. [Source: SLV]

Leader (Melbourne, Vic. : 1862 – 1918, 1935), Saturday 1 December 1866, page 8


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.”

Forgotten Bushrangers: Robert Burke

Robert Burke (aka Bourke) was a small time bushranger who had one major incident in his career that made him particularly noteworthy, as many bushrangers tended to. Hardly prolific, Bourke gained his spot in the pantheon by an unfortunate incident that ended in disaster at a station in Diamond Creek.

Burke, whose real name was Clusky, was born in Dublin in 1842. He, his brother James, and sister were sent to Australia in 1854 from Liverpool by their uncle and were taken in by a family in Melbourne. Clusky was trouble though and soon absconded from his job and foster family, taking to the bush. He was a member of the Church of England and likely had a decent education for the time as he could read and write. It would appear that for a time he worked as a sailor, possibly gaining a little taste of the wider world while travelling. Possessed of a taste for theatre and an immutable vanity, by most accounts he was rather a refined gentleman (as far as bushrangers were concerned), prone to reciting poems or Shakespeare. He was also fluent in French and had spent time in a French boarding house in Melbourne flying completely under the radar thanks to his grasp on the language. He was a fine specimen of the Victorian era man. Standing at five feet and eight inches tall, he had handsome features, light brown hair and blue-grey eyes under a dark, heavy brow. He bore scars on his forehead, right elbow, back of the head on his left side and his right knee.

In 1862 Clusky ended up getting three years on the roads on a charge of robbery under arms near Ararat. On 16 October, he had bailed up a man named Pope near Mount Mistake. Threatening the man with his pistol, he pulled the trigger but the gun was not loaded. Clusky stated “I have another one yet” and drew another pistol, which aided in his alleviating Pope of £5. When tried before Chairman Clarke, Clusky stated that he had only robbed out of desperation, unable to find employment though he was willing and needed money to send to his sister in Melbourne. Despite getting a three year sentence, he only served two years in Pentridge. As soon as he was out he headed back to Ballarat where he obtained employment and he then found work in Bullarook Forest before crossing the border into Yass Plains. While here he was treated poorly by his employer and took off on a borrowed horse and went back to robbing mail coaches, sticking up three coaches single-handedly. After his initial robberies he returned his steed with a letter being sent to his old master informing him of where to find the animal. He was known to be an admirer of Dan Morgan, his contemporary, though he was not a fan of his bloodthirsty reputation and preferred not to shed blood.

Robert Clusky’s prison record.

Burke was not an unsuccessful bushranger, having stuck up the Jugiong-Gundagai coach. He stole a mob of horses but set them loose near Picton and sent a letter to the local police telling them where to find them, the letter signed “Burke the Bushranger”. Having accrued a decent amount of cash Burke headed to Sydney where he lived a short while before heading to Melbourne on a ship called Rangatira. He stayed in lodgings near the Olympic Theatre in Lonsdale Street and visited the Bourke Street waxworks, which he found very displeasing. He soon took off on foot, next seen in Kew and then headed for Dandenong where he raided the home of a man named Horner. Upon Burke leaving, the matter was reported and Superintendent Smith of the Greensborough police was duly notified of Burke’s intentions of heading in that direction. The journey was gruelling, his clothes becoming raggedy and filthy lending him the appearance of a tramp. Burke would use this to his advantage in gaining sympathy from settlers on occasion but he still found that blue steel was the best incentive.

Burke attempted to gain entry to a house in Eltham but, when refused, fired several shots into the wall. The occupants then allowed him inside whereupon he ransacked the place but found nothing of value and left empty handed. A brief visit to a farm in Kangaroo Ground saw Burke taking tea before heading off at daybreak. He was then spotted in Diamond Creek, a large rural region North East of Melbourne bordering on the township of Greensborough. The irregular, frequently mountainous terrain was peppered with yellow box gums and farms taking advantage of the sparkling waters of the Diamond Creek, so named because of the quartz in the creek bed that shimmered like diamonds in the sun. In 1851 gold had been discovered nearby in Warrandyte and kicked off the Victorian Gold Rush but Diamond Creek had avoided being tainted by the madness. It was here on 4 October that Burke headed to the most prominent cattle run perched on a slope near a bridge. The property was known then as Diamond Creek Station, though now it is better known as Allwood.

It was 8:00am when Burke reached the property. He was careful about which building he approached and passed through a paddock, greeting Robert Hurst, the station’s manager, before heading to the homestead. Ellen Hurst answered and asked what he wanted. Burke was fidgety and avoided eye contact stating only that he wanted food and, thinking him to be a tramp, Ellen brought him into the kitchen and gave him breakfast. As Burke dug in Ellen noticed her brother Henry enter the house and beckon her. She excused herself and found her brother in the bedroom.

A sketch of the crime scene

Henry Facey Hurst was a well liked personality around Diamond Creek, the sort of person you could reliably referred to as a “top bloke”. Handsome, athletic and hard working, Henry was a fine example of the squatter class. Perhaps his most famous achievement was the construction of a bridge nearby from which that town would later gain its name – Hurstbridge. When Ellen entered the bedroom Henry inquired about the identity of the man in the kitchen. Ellen told him it was a tramp.
“I don’t like the look of him.” Henry whispered. He proceeded to load his fowling piece as a precaution. The pair entered the kitchen and stood behind the visitor.
The grubby, rumpled figure slurping tea from a pannikin at the dining table barely shifted at the arrival. Henry gently placed the fowling piece in the corner. As Burke reached for some bread his pistol, stolen from a Mr. Mathison during one of his robberies, was visible beneath his coat.

“Good morning, mate, where are you from?” Hurst asked.
“Cape Schanck.” came the brusque reply behind a forearm wiping liquid out of his moustache.
“And where are you going?” Hurst continued.
“To Kilmore.” came the reply.
“The deuce you are; You’re going a round-about way of it!” Hurst exclaimed. The game was up and Burke knew it. He swiveled to face his inquisitor.
“Are you the master of the house?” Burke rumbled.
“Yes.” Henry stood defiantly with his arms folded. Burke pounded his fist on the stool.
“I will never take an insult from any man; I came to get my breakfast!” Burke rose to his feet, flicking his coat back and drew his revolver. “Do you know who I am? I am a bushranger!”
“Please don’t shoot!” Ellen shrieked as Henry stooped for his gun. Henry threw his sister a look and gestured for her to get help, which she did immediately, running to find a friend of the Hursts named Joseph Abbott. Burke, suddenly spooked, aimed for the girl and quick as thought, Henry raised his fowling piece and fired a shot which whizzed past Ellen’s head and lodged in the wall as she ran out. Hurst jumped on Burke and tried to wrestle the pistol from his grip. In the scuffle the revolver went off, which could be heard outside the building. Ellen ran as fast as her legs would take her and saw Abbott in the stockyard and frantically gestured to him.
“You must go unto the house, a bushranger has shot my brother!”

Meanwhile, the pair continued to wrestle in the kitchen, limbs entangled awkwardly in a furious attempt to restrain each other. Burke reeled off two shots before he managed to get his arm over Hurst’s shoulder and fired. The bullet passed down through Hurst’s body and out, lodging in Burke’s left thigh.
“You’ve done for me you wretch!” Hurst groaned in agony as the pair continued to grapple.
“Let us quit for I’m wounded, myself.” Burke begged as Abbott burst in and continued the struggle as Hurst collapsed. Abbott grabbed Burke by the throat and tried to restrain him as the bushranger roared “I’ll shoot you if you don’t let me go!” In response Abbott struck the revolver from Burke’s hand, which was later found to be empty.


Meanwhile Ellen had informed the stockmen what was happening and some of them had ridden for Eltham to fetch the police. The others had rushed into the house and assisted in disarming Burke as he collapsed from blood loss and restrained his hands and feet. Hurst was lifted onto the bed where Ellen found him in precarious health. A messenger was sent immediately to find the local doctor to attend the dying man. Robert Hurst returned to the homestead whereupon he sent his daughter Emily to fetch the Queenstown police. He was directed to the spot where found Burke, now conscious, was bound in the yard to a wheel under a tree.
“You villain, why did you shoot my son?” the distraught father bellowed.
“He insulted me and I will not be insulted by any man.” Burke grumbled.

Soon the stockmen returned with Constable Hall who ensured that Burke was immediately taken into custody. Constables from Heidelberg notified Superintendent Smith at Greensborough but by the time they arrived on the scene police had already arrived from Eltham, Whittlesea and Queenstown and ascertained the bushranger’s identity and relieved him of his revolver, 50 revolver bullets, 90 firing caps, a map of Victoria, a list of squatters and their station names, a compass, a leather pocket book containing two cheques and a deposit receipt, a letter, a French grammar book and a photograph of an actor named G. V. Brooke.

Gustavus Vaughan Brooke: Burke the bushranger carried a photograph of this Irish actor on him at the time of his capture.

Though Hurst was attended by Dr. Ronald and Dr. Barker nothing could be done for him. Hurst died from his wounds eight hours after the encounter at 5:00 pm. He was later carried across to a spot by the creek and buried. Burke was removed to Greensborough police station where Dr. Barker tended his leg wound but considered it serious enough that he should stay put until stabilised. Once well enough to travel, Burke was escorted to Melbourne by Constables Gorman, Hall and Senior Constable Harty. Once in the city he was lodged in Melbourne Gaol under the care of Detective Nicolson, who had only ten years earlier helped capture the notorious Bradley and O’Connor. An inquest was undertaken in the wake of the killing by Superintendent Hare in the Diamond Creek Hotel. Burke was escorted from Melbourne in irons for the inquest. Due to his leg not being properly healed, the wound burst several times during the inquest and bled.


Burke was taken to Melbourne Gaol to await execution. A group of concerned citizens convened at the Mechanics’ Institute and created a petition begging the executive council to commute the sentence to life imprisonment as there wasn’t enough evidence of malice aforethought. Despite gathering 7000 signatures, the council declined to overturn the death sentence and Burke was subsequently hanged on 29 November 1866 by William Bamford. His last words were:

Just as I am—without one plea
But that Thy blood was shed for me,
And that Thou bid’st me come to Thee,
O, Lamb of God, I come.

As was customary, his body was buried under quicklime in the gaol grounds. Within weeks Burke was being used as a cash cow by showmen. And advertisement appeared in the Geelong Advertiser for a series of phrenology lectures at the Geelong Mechanics Institute by Thomas Carr wherein Burke’s phrenological analysis would be presented for a shilling (or two shillings for reserved seats).

Selected Sources:

“BURKE’S EARLY CAREER.” Leader. 20 October 1866: 7.

“No title” The Herald. 9 October 1866: 2.

“SHORT-LIVED BUSHRANGERS.” Evening Journal (Adelaide, SA : 1869 – 1912) 1 January 1910: 2

“Advertising” Geelong Advertiser (Vic. : 1859 – 1929) 6 December 1866: 4.

“BURKE THE BUSHRANGER IN VICTORIA.” The Kyneton Observer. 9 October 1866: 2.

“THE DIAMOND CREEK OUTRAGE.” The Herald (Melbourne, Vic. : 1861 – 1954) 16 October 1866: 3.


“THE MURDER AT DIAMOND CREEK.” The Herald. 9 October 1866: 3.