The emotional and complex Gable Tostee murder case has divided the jury tasked with deciding its outcome, with the presiding judge rejecting its claims on Tuesday that it was unable to reach a verdict.
After returning to the courtroom on numerous occasions for clarifications of various points of law, the jury informed Brisbane Supreme Court Justice John Byrne that after two days of deliberation the jurors were struggling to agree.
Justice Byrne’s response was to urge them to try harder. He also warned them not to discuss the makeup of their division outside the court.
“Experience has shown that juries can often agree if given enough time to consider and discuss the issues,” he told the six men and six women jurors.
The jury will return for a third day of deliberations on Wednesday.
Tostee is accused of intimidating 26-year-old New Zealand tourist Warriena Wright to a degree where she felt the only way to escape him was to climb over the railing of his 14th floor balcony.
During the six-day trial, the jury heard that Tostee, 30, and Ms Wright connected on dating app Tinder and met for a night of drinking and sex in August 2014.
An audio recording made by Tostee on his mobile phone that captured a violent struggle between the pair and Ms Wright’s eventual death was a key piece of evidence in the case.
If the jurors are unable to agree on a verdict after a “reasonable time” and a hung jury is declared, they could be dismissed and a fresh trial called.
Justice Byrne told the jurors while he had the power to discharge them, he would only exercise it if he was satisfied there was “no likelihood of genuine agreement being reached after further deliberation”.
“Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given enough time to consider and to discuss the issues.”
Justice Byrne reminded the jury to listen “carefully and objectively” to their fellow jurors.
“This often leads to a better understanding of the differences of opinion you may have and may convince you that your original opinion was wrong,” he said.
During its deliberations on Tuesday, the jurors asked several questions of the judge.
In the first instance, the questions included Tostee’s age at the time of the incident, if they should consider how drunk Ms Wright was, and the nature of an item in Tostee’s hand seen on CCTV footage after she died.
Justice Byrne told the jurors they should not consider Tostee’s conduct after the alleged offence as part of their reasoning to reach a verdict of murder or manslaughter.
He also said as Tostee’s age was not part of the evidence, they must not draw any conclusions from it.
However, the jury was allowed to consider if Ms Wright’s state of mind was influenced by alcohol, the court heard.
Later the jury asked two more questions relating to Tostee’s possible defence as a home owner acting to remove a disorderly person from his apartment.
Defence barrister Saul Holt had argued Tostee was acting within his legal right to defend himself and his property from further assaults from Ms Wright, who had thrown decorative rocks at him.
Mr Holt said Tostee de-escalated the situation by locking Ms Wright out on the balcony, creating a safe space for both of them.
He argued it was not foreseeable Ms Wright would climb over the balcony in darkness to “certain death” although that reflected her irrational behaviour throughout the night.
Prosecutor Glen Cash said Tostee caused Ms Wright’s death “as much as if he had pushed her from the balcony himself”.
Justice Byrne told the jurors on Monday they could find Tostee guilty of the lesser charge of manslaughter if they concluded he unlawfully killed Ms Wright but did not intend to cause her possibly fatal harm.
– with AAP