Gable Tostee at the Supreme Court in Brisbane. Photo / AP
Gable Tostee at the Supreme Court in Brisbane. Photo / AP
The jury deliberating in the case of Gable Tostee have been unable to reach a unanimous verdict and sent home for the day.
Deliberations will reconvene tomorrow.
The jury sent Justice John Byrne a note just after 3pm local time informing him. They were sent back to attempt to reach a decision but could not do so. They were sent home for the day shortly before 6.30pm.
"Experience has shown that juries can often agree if given enough time to consider and discuss the issues," Justice Byrne said on Tuesday afternoon.
"But if after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of others, then you must give effect to your own view of the evidence.
"Each of you has sworn or affirmed you will conscientiously try the charges and decide them, according to the evidence.
"That is an important responsibility. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light."
Earlier on Tuesday, jurors asked further questions of Justice Byrne, seeking clarification on two points surrounding the removal of Warriena Wright by Tostee from his apartment and onto his balcony.
In the first question, jurors asked at which point on the audio recording Tostee made is he regarded as removing a disorderly person from his property.
Warriena Wright. Photo / Supplied
Tostee's defence barrister Saul Holt, QC, argued that Tostee was acting within his legal right to remove a disorderly person from his property, when he forcibly put Wright on the balcony and shut the door, moments before she plunged to her death while attempting to climb to the balcony underneath on August 8, 2014.
"It does not matter when," Justice Byrne answered.
"You must find the accused not guilty of both murder and manslaughter unless you are satisfied beyond reasonable doubt that the accused used more force than necessary in removing Warriena Wright from his unit."
The jury - six men and six women - also asked if Tostee putting Wright on his balcony constituted removing her from his property.
Justice Byrne's reply was brief.
"Yes," he answered.
The jury was then sent back to continue their deliberations, before returning with yet another note - this time saying it could not reach a verdict.
Justice Byrne earlier instructed jurors that Wright's level of drunkenness on the night she plunged to her death is a factor they must consider when determining if the decision she made to climb over Tostee's balcony was a rational one.
Jurors deliberating in Tostee's murder trial passed Justice Byrne a note on Monday afternoon, asking four questions, including if Wright's level of intoxication when she died was a factor they must take into account when determining if her decision to climb over Tostee's balcony was rational and reasonable.
In the Brisbane Supreme Court on Tuesday morning, Justice Byrne said it was a factor they must consider when determining if Tostee unlawfully killed his Tinder date, on August 8, 2014.
"A jury of your accumulated experience of life scarcely needs a judge to point out that excessive consumption of alcohol can impair judgment ... People, when drunk do things, they would not when sober," he said.
"The degree of Warriena Wright's intoxication when the accused moved her onto the balcony has potential to bear on your consideration as to whether the decision to climb over the balcony was a reasonable and rational or proportionate response to the accused's conduct.
"Her state of mind should be taken into account, the extent to which her decision to climb over the balcony was reasonable, rational and proportionate, in response to the conduct of the accused."
Crown prosecutor Glenn Cash argued Wright chose to climb the balcony due to her "abject fear" of Tostee, while defence counsel Saul Holt, QC, argued Tostee locked Wright out on the balcony to de-escalate the violent situation in the apartment, in which Wright had repeatedly attacked him.
Justice Byrne also instructed jurors that a metal object CCTV footage captured Tostee carrying when he exited the lift of his apartment building after Wright's death is irrelevant to their deliberations.
He said what Tostee had in his hand after Wright's death had no bearing on their verdict, reminding them of his earlier direction that Tostee's conduct after Wright's fatal fall should not be considered as pointing to his guilt.
"There is no evidence beyond the CCTV of the item you have asked about," he said.
"Neither of the final addresses sought to make anything of what you could see on the CCTV footage after Wright's death. Neither party speculated.
"Finally, I remind you of my direction you cannot give Mr Tostee's conduct after Wright fell as in any way advancing the prosecution case on murder or manslaughter."
Tostee has pleaded not guilty to murder.
The jury may also find a lesser charge of manslaughter.
