The Offence of Possessing an Encrypted Device to Facilitate Criminal Activity in NSW

Strike Force Harskamp has been investigating an alleged organised crime network’s suspected illicit trade in the supply of dedicated encrypted criminal communication devices (DECCDs).

DECCDs are mobile devices that have been specifically altered to provide secure encrypted communications between criminals in order to facilitate illegal activities.

As part of the police investigation, officers from the New South Wales Police Organised Crime Squad executed warrants at three properties on Bidjigal land in the Sydney suburbs of Kogarah, Bexley and Rockdale at around 7 am on Thursday, 9 July 2026.

The Strike Force was formed in April 2025 to thwart the VIP criminal network that’s alleged to be making an estimated $2 million out of selling around 1,000 DECCDs annually.

The warrants saw two men aged 25 and 26 arrested in Kogarah and a 29-year-old taken into custody in Bexley. Thirty-five DECCDs were seized during the raids, along with $35,000 in cash. And the newly obtained phones were added to the cache of 60-odd DECCDs that police had already seized during raids over the past month.

The three men were taken to Hurstville police station, where they were charged with participating in a criminal group in order to contribute to criminal activity, along with recklessly dealing in the proceeds of crime and possessing dedicated encrypted criminal communication devices to commit serious criminal activity.

“This operation has struck at the heart of a criminal network that was allegedly deliberately arming organised crime groups with the tools to conceal their offending,” Organised Crime Squad commander Peter Faux said in a 10 July 2026 statement.

“We have now identified over 3,000 devices distributed by the VIP OCN to commit serious crimes,” he added. “By dismantling this network, detectives have removed a key enabler of organised crime in NSW and reaffirmed our commitment to disrupting those who believe they can hide behind technology.”

The offence of possessing a DECCD

Section 192P of the Crimes Act 1900 (NSW) contains the offence of possessing a dedicated encrypted criminal communication device to facilitate serious criminal activity, which carries a maximum penalty of 3 years’ imprisonment.

A dedicated encrypted criminal communication device, or a DECCD, is defined in section 192O of the Crimes Act, as a mobile electronic device that has been modified and “specifically designed or equipped for use to facilitate communication, between persons reasonably suspected of being involved in serious criminal activity, to defeat law enforcement detection”.

A DECCD “uses hardware modifications or software” that’s been deployed to modify “the device’s factory operating system, whether temporarily or permanently to block or replace key features usually available on the device’s operating system, including, for example, voice call, web browsers or geolocation services, and enables encryption of communication between users”.

Further, a DECCD must have been “configured in a way that specifically impedes law enforcement access to information on the device”. Three examples are provided, which include using a duress password that serves to wipe phone data, or a device connected to a service that can’t be linked to the owner, or one that doesn’t appear to have an International Mobile Equipment Identity number.

Section 192O further stipulates that a DECCD can be a device prescribed under the regulations linked to the Crimes Act. But DECCDs don’t include all devices that have been “designed, modified or equipped with software or security features”, as this can occurr in circumstances where a reasonable person would not consider the primary aim was to use the devices for criminal purposes.

Serious criminal activity is defined under section 192N, as offences that carry 5 years prison or more, or crimes considered as serious criminal activity under the Criminal Assets Recovery Act 1990 (NSW). The serious criminal activity involved in the use of DECCDs don’t require any convictions to have been made in relation to it, and it also includes the obtaining of material benefits from the devices.

To find a person guilty of the section 192P offence, the prosecution must prove beyond a reasonable doubt that the accused was in possession of a dedicated encrypted criminal communication device, and its purpose was use in the commission of serious crimes. But as section 192Q stipulates it’s not necessary to prove a crime was committed or planned via the DECCD to prove the possession crime.

As for proving that the reason a DECCD in a suspect’s possession was for the purpose of committing or facilitating serious criminal activity, subsection 192P(2) outlines that matters that should be considered include whether the service is under a false name or if the DECCD was obtained via a criminal network or a person likely to be involved in crime.

Further things to consider about the person the DECCD was obtained from include whether there were indications they were a drug dealer, or that they possessed illegal firearms or child abuse material.

Defences that apply to possession of a DECCD

In terms of defences, subsection 192P(3) provides a statutory one. This defence involves satisfying the court that the accused was in possession of the DECCD, as part of the ordinary course of their duties “as an officer, employee or agent of a government agency or public authority, or to supply to, or in partnership or agreement with, a government agency”.

And “to avoid doubt, subsection 192P(4) clarifies that a government agency includes “a government agency of this state, and a government agency of the Commonwealth or another state or a territory”.

The defence of honest and reasonable mistake of fact can be argued against a section 192P charge. This involves putting to the court that the accused mistakenly considered certain falsehoods true and if they were reasonably held, then they wouldn’t be guilty. In terms of a DECCD, an accused could argue that they legitimately considered they were in possession of a regular mobile device.

In certain circumstances, the defence of duress could be raised against possessing a criminal encrypted phone. Duress puts to the court that a defendant carried out their acts due to a threat towards themselves or another person. If a court was satisfied that a suspect had been coerced into participating in organised crime, the same could be shown in terms of possessing a DECCD.

DECCD access and prohibition

As then Liberal Perrottet government NSW police minister Paul Toole introduced the Dedicated Encrypted Criminal Communication Device Prohibition Orders Bill 2022 into NSW parliament on 20 September 2022, he explained that along with the offence, the legislation was also putting in place “a prohibition order scheme that gives police powerful tools to search certain people for these devices”.

The DECCD access order regime sits in part 5A of the Law Enforcement (Powers and Responsibilities) Act 2002, or the LEPRA. It allows officers to ask a magistrate for an order during inquiries that could involve DECCD possession. Toole underscored that DECCD warrants can be obtained to confirm whether someone’s device is a DECCD, as that is not always evident from external inspection.

Section 80 of the LEPRA outlines that a DECCD access order permits police to access the suspect device the order relates to and any linked data, to ascertain whether it is indeed a DECCD, and the order further requires the owner of said device to provide information to the officers and assist them in any way to access the device as is reasonably necessary, and failure to comply carries 5 years.

The final part of the DECCD package was the enactment of the Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022 (NSW). This created the DECCD prohibition order regime, which permits police to ask a magistrate for a DECCD prohibition order to be imposed upon eligible persons, who are those who have been convicted over a serious criminal offence in the past.

If the police obtain such an order, they are then able to search the person, their premises and their vehicles to look for DECCD use. In executing such a warrant, Toole explained, officers would also be equipped with a DECCD access order to ascertain whether any located devices are in fact criminal phones.

“The powers and offences provided in this bill are innovative world-leading reforms focusing on emerging technology used exclusively by law enforcement,” the then NSW police minister said in 2022.

“We expect them to send a strong message to organised crime that these dedicated criminal devices are not welcome in this state. One of the aims of these reforms is to stamp out the use of these devices,” Toole said in concluding. 

“When police find them, they will have legislative tools at their disposal to take appropriate action.”