The jury in the Gable Tostee trial has indicated it is struggling to reach a verdict over whether he killed New Zealander Warriena Wright, who fell off his 14th floor Gold Coast apartment balcony.
Warriena Wright and Gale Tostee Photo: Supplied
Mr Tostee, 30, could be found guilty of the murder or manslaughter of Ms Wright.
In August 2014, the pair had been on a first date arranged on Tinder that turned violent, with Mr Tostee locking Ms Wright on the balcony of his 14-floor Surfers Paradise apartment.
A short time later, she fell to her death trying to scale the balcony.
The jury of six men and six women in Brisbane began deliberations yesterday afternoon, but sought extra instruction from Justice John Byrne this morning and again this afternoon.
They have been sent home for the night, and will meet again in the morning.
Justice Byrne said he would only discharge them if genuinely satisfied they could not reach a verdict, adding juries often eventually did.
"You are entitled to take as long as you wish to reach your verdict.
"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."
The judge 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.
"That is not of course to suggest you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one."
He urged the jury to re-examine the matters there were disagreeing on.
Jury seeks advice on role alcohol played
Questions have surrounded Mr Tostee's age and whether to consider CCTV footage of Mr Tostee holding a metal object when he left his apartment after the fatal fall.
Justice Byrne said while his age was irrelevant, in regards to the object, he told the jurors they should only assess information presented in the trial.
"The answer is this, there is no evidence beyond the CCTV footage of the item that you asked about," he said.
"You should not speculate about evidence in this trial."
The jury also asked a question about the consideration of Ms Wright's state of mind and level of intoxication when she died.
"A jury with your accumulated experience of life scarcely needs a judge to point out that excessive consumption of alcohol can impair a person's judgement so that people will, when drunk, do things that they would not attempt if sober," Justice Byrne said.
"The degree of Warriena Wright's intoxication when the accused moved her onto the balcony therefore has the potential to bear on your consideration on whether her decision to climb over the balcony was a reasonable, rational or proportional response to the accused's conduct."
The jury also asked for clarification on whether a home owner's right to remove a person behaving in a disorderly manner included the balcony.
Justice Byrne said "it did not matter when" Mr Tostee began removing Ms Wright from his property, and the only issue the jury should be concerned with was whether he used excessive force.
"You must find the accused not guilty of murder or manslaughter unless you are persuaded beyond reasonable doubt that the accused used more force than was reasonably necessary to remove Warriena Wright from the lounge to the balcony of his unit," he said.
- ABC
