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Tostee jury struggles with verdict

AAP logoAAP 17/10/2016 Sarah Motherwell

The jury in the murder trial of Gable Tostee has been urged to persevere in their efforts to reach a unanimous verdict after they told the judge they were struggling to agree.

"Experience has shown that juries can often agree if given enough time to consider and discuss the issues," Brisbane Supreme Court Justice John Byrne told the six men and six women jurors.

He sent the jury home on Tuesday night and they will enter their third day of deliberations on Wednesday.

Tostee is alleged to have intimidated tourist Warriena Wright, 26, so greatly she felt the only way to escape him was to climb over the railing of his 14th floor balcony.

A six-day trial had heard Tostee and Ms Wright met on dating app Tinder for a night of drinking and sex.

An audio recording taken by Tostee on his mobile phone that captured the violent struggle between the pair and Ms Wright's eventual death was a key piece of evidence in the case.

The jurors have asked several questions of the judge during their eight hours of deliberations.

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 jury on Tuesday 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".

Mr Cash alleged Tostee could be heard choking Ms Wright for up to 45 seconds in the recording despite pathologist Dianne Little testifying there was no evidence Ms Wright was manually strangled before she died.

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.

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